Exhibit 10.27
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and
entered
into this ____ day of _____________, 2005 (the "Effective Date") by
and between
BioMimetics Therapeutics, Inc., a Delaware corporation (the
"Company"), and [ ]
(the "Indemnitee").
WHEREAS, the Company believes it is essential to retain and attract
qualified directors and officers;
WHEREAS, the Indemnitee is a director and/or officer of the
Company;
WHEREAS, both the Company and the Indemnitee recognize the
increased
risk of litigation and other claims being asserted against
directors and
officers of public companies;
WHEREAS, the Company's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") and Bylaws (the
"Bylaws")
authorize the Company to indemnify and advance expenses to its
directors and
officers to the extent permitted by the DGCL (as hereinafter
defined);
WHEREAS, the Indemnitee has been serving and intends to continue
serving as a director and/or officer of the Company in part in
reliance on the
Certificate of Incorporation and Bylaws, or is relying upon the
rights afforded
under this Agreement in accepting the Indemnitee's position as a
director,
officer or employee of the Company; and
WHEREAS, in recognition of the Indemnitee's need for (i)
substantial
protection against personal liability based on the Indemnitee's
reliance on the
Certificate of Incorporation and Bylaws, (ii) specific contractual
assurance
that the protection promised by the Certificate of Incorporation
and Bylaws will
be available to the Indemnitee, regardless of, among other things,
any amendment
to or revocation of the Bylaws or any change in the composition of
the Company's
Board of Directors (the "Board") or acquisition transaction
relating to the
Company and (iii) an inducement to continue to provide effective
services to the
Company as a director and/or officer thereof, the Company wishes to
provide for
the indemnification of the Indemnitee and to advance expenses to
the Indemnitee
to the fullest extent permitted by law and as set forth in this
Agreement, and,
to the extent insurance is maintained by the Company, to provide
for the
continued coverage of the Indemnitee under the Company's directors'
and
officers' liability insurance policies.
NOW, THEREFORE, in consideration of the premises contained herein
and
for the Indemnitee continuing to serve the Company directly or, at
its request,
with another enterprise, and intending to be legally bound hereby,
the parties
hereto agree as follows:
1.
CERTAIN DEFINITIONS.
(a)
A "Change in Control" shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the "Exchange Act"), other than
(a)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company; (b) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company; or (c)
any current beneficial stockholder or group, as defined by Rule
13d-5
under the Exchange Act, including the heirs, assigns and successors
thereof, of beneficial ownership, within the meaning of Rule 13d-3
under the Exchange Act, of securities possessing more than 50% of
the
total combined voting power of the Company's outstanding
securities;
hereafter becomes the "beneficial owner," as defined in Rule 13d-3
under the Exchange Act, directly or indirectly, of securities of
the
Company representing 25% or more of the total combined voting power
represented by the Company's then outstanding Voting Securities;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any
new
director whose election by the Board or nomination for election by
the
Company's stockholders was approved by a vote of at least majority
of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election
was previously so approved, cease for any reason to constitute a
majority thereof; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a
merger or consolidation which would result in the Voting Securities
of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into
Voting Securities of the surviving entity) at least 65% of the
total
voting power represented by the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company's assets.
(b) "DGCL" shall mean the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended or
interpreted;
provided, however, that in the case of any such amendment or
interpretation,
only to the extent that such amendment or interpretation permits
the Company to
provide broader indemnification rights than were permitted prior
thereto.
(c) "Expense" shall mean attorneys' fees and all other costs,
expenses
and obligations paid or incurred in connection with investigating,
defending,
being a witness in or participating in (including on appeal) or
preparing for
any of the foregoing, any Proceeding relating to any Indemnifiable
Event.
(d) "Indemnifiable Event" shall mean any event or occurrence that
takes place either prior to or after the execution of this
Agreement, related to
the fact that the Indemnitee is or was a director or officer of the
Company, or
is or was serving at the request of the Company as a director,
officer, employee
or agent of another corporation or of a partnership, joint venture,
trust or
other enterprise, including service with respect to employee
benefit plans, or
by reason of anything done or not done by the Indemnitee in any
such capacity.
(e) "Proceeding" shall mean any threatened, pending or completed
action, suit, investigation or proceeding, and any appeal thereof,
whether
civil, criminal, administrative or investigative and/or any inquiry
or
investigation, whether conducted by the Company or any other party,
that the
Indemnitee in good faith believes might lead to the institution of
any such
action.
(f) "Reviewing Party" shall mean any appropriate person or body
consisting of a member or members of the Company's Board or any
other person or
body appointed by the Board (including the special independent
counsel referred
to in Section 6) who is not a party to the particular Proceeding
with respect to
which the Indemnitee is seeking indemnification.
(g) "Voting Securities" shall mean any securities of the Company
which
vote generally in the election of directors.
2. INDEMNIFICATION. In the event the Indemnitee was or is a party
to
or is involved (as a party, witness or otherwise) in any Proceeding
by reason of
(or arising in part out of) an Indemnifiable Event, whether the
basis of the
Proceeding is the Indemnitee's alleged action in an official
capacity as a
director or officer or in any other capacity while serving as a
director or
officer, the Company shall indemnify the Indemnitee to the fullest
extent
permitted by the DGCL against any and all Expenses, liabilities and
losses
(including judgments, fines, ERISA excise taxes or penalties, and
amounts paid
or to be paid in settlement, and any interest, assessments or other
charges
imposed thereon, and any federal, state, local or foreign taxes
imposed on any
director or officer as a result of the actual or deemed receipt of
any payments
under this Agreement) (collectively, "Liabilities") reasonably
incurred or
suffered by such person in connection with such Proceeding. The
Company shall
provide indemnification pursuant to this Section 2 as soon as
practicable, but
in no event later than 30 days after it receives written demand
from the
Indemnitee. Notwithstanding anything in this Agreement to the
contrary and
except as provided in Section 5 below, the Indemnitee shall not be
entitled to
indemnification pursuant to this Agreement (i) in connection with
any Proceeding
initiated by the Indemnitee against the Company or any director or
officer of
the Company unless the Company has joined in or consented to the
initiation of
such Proceeding or (ii) on account of any suit in which judgment is
rendered
against the Indemnitee pursuant to Section 16(b) of the Exchange
Act for an
accounting of profits made from the purchase, sale or other
transaction by the
Indemnitee of securities of the Company (or derivatives thereof).
3. ADVANCEMENT OF EXPENSES. The Company shall advance Expenses to
the
Indemnitee within 30 business days of such request (an "Expense
Advance");
provided, however, that if required by applicable corporate laws,
such Expenses
shall be advanced only
upon delivery to the Company of an undertaking by or on behalf of
the Indemnitee
to repay such amount if it is ultimately determined that the
Indemnitee is not
entitled to be indemnified by the Company; provided, further, that
the Company
shall make such advances only to the extent permitted by applicable
law.
Expenses incurred by the Indemnitee while not acting in his/
