Exhibit
10.21
INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT is made effective as of the day
of
, 2007, by and
between IR BioSciences Holdings, Inc., a Delaware corporation (the
"Company") and
("Indemnitee").
WHEREAS, it is
essential to the Company to retain and attract as directors and
executive officers the most capable persons available;
WHEREAS,
Indemnitee has recently become, or continues to serve as a director
of the Company;
WHEREAS, the
Bylaws and the Certificate of Incorporation of the Company require
the Company to indemnify its directors and officers to the fullest
extent permitted by law and Indemnitee is serving as a director or
executive officer of the Company, in part, in reliance on such
Bylaws and Certificate of Incorporation; and
WHEREAS, in
recognition of Indemnitee's need for substantial protection against
personal liability, to maintain Indemnitee's continued service to
the Company in an effective manner in reliance on the aforesaid
Bylaws and Certificate of Incorporation, in part, to provide
Indemnitee with specific contractual assurance that the protection
promised by such Bylaws and Certificate of Incorporation will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Bylaws and Certificate of
Incorporation or any change in the composition of the Company's
Board of Directors or any acquisition transaction relating to the
Company), the Company desires to provide in this Agreement for the
indemnification of and the advance of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law, as
set forth in this Agreement and, to the extent officers' and
directors' liability insurance is maintained by the Company, to
provide for continued coverage of Indemnitee under the Company's
officers' and directors' liability insurance policies.
NOW, THEREFORE,
in consideration of the covenants contained herein and of
Indemnitee's continuing service to the Company directly, or at its
request, other enterprises, and intending to be legally bound
thereby, the parties hereto agree as follows:
1.
CERTAIN DEFINITIONS
(a) Acquiring
Person: shall mean any Person other than: (i) the Company; (ii) any
of the Company's Subsidiaries; (iii) any employee benefit plan of
the Company or of a Subsidiary of the Company or of 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 (iv) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a
Subsidiary of the Company or of 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.
(b) Change in
Control: shall be deemed to have occurred if: (i) any Acquiring
Person is, or becomes the "beneficial owner" (as defined in Rule
13d-3 and 14d-1 under the Securities and Exchange Act of 1934, as
amended (the "Exchange Act")), directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power or more of the then outstanding Voting Securities of
the Company; or (ii) members of the Incumbent Board cease for any
reason to constitute at least a majority of the Board of Directors
of the Company; or (iii) any reverse merger in which the Company is
the surviving entity but in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or
persons different from those who held such securities immediately
prior to such merger; or (iv) 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 of all or
substantially all of the Company's assets (or, if no such approval
is required, the consummation of such a liquidation, sale, or
disposition in one transaction or series of related transactions)
other than a liquidation, sale, or disposition of all or
substantially all of the Company's assets in one transaction or a
series of related transactions to 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.
(c) Claim: any
threatened, pending, or completed action, suit, proceeding or
alternative dispute resolution mechanism (including, without
limitation, securities laws actions, suits, and proceedings), or
any inquiry, hearing or
investigation
(including discovery), whether conducted by the Company or any
other party, that Indemnitee in good faith believes might lead to
the institution of any action, suit, proceeding or alternative
dispute resolution mechanism whether civil, criminal,
administrative, investigative, or other.
(d) Expenses:
include attorneys' fees and all other costs, travel expenses, fees
of experts, transcript costs, filing fees, witness fees, telephone
charges, postage, delivery service fees, expenses and obligations
of any nature whatsoever paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable
Event.
(e) Incumbent
Board: individuals, who, as of _______________ , 2003
constitute the Board of Directors of the Company and any other
individual who becomes a director of the Company after that date
and whose election or appointment by the Board of Directors or
nomination for election by the Company's stockholders was approved
by a vote of at least a majority of the directors then comprising
the Incumbent Board.
(f)
Indemnifiable Event: any event or occurrence related to the fact
that Indemnitee is or was a director, officer, employee, agent, or
fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent, or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust, or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity. For
purposes of this Agreement, the Company agrees that Indemnitee's
service on behalf of or with respect to any Subsidiary of the
Company shall be deemed to be at the request of the
Company.
(g) Independent
Legal Counsel: special, independent counsel selected by Indemnitee
and approved by the Company (which approval shall not be
unreasonably withheld), and who has not otherwise performed
services for the Company or for Indemnitee within the last five
years (other than as Independent Legal Counsel under this Agreement
or similar agreements). Independent Legal Counsel shall not be any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement, nor shall Independent
Legal Counsel be any person who has been sanctioned or censured for
ethical violations of applicable standards of professional
conduct.
(h) Person: any
person or entity of any nature whatsoever, specifically including
an individual, a firm, a company, a corporation, a partnership, a
limited liability company, a trust, or other entity. A Person,
together with that Person's Affiliates and Associates (as those
terms are defined in Rule 12b-2 under the Exchange Act), and any
Persons acting as a partnership, limited partnership, joint
venture, association, syndicate, or other group (whether or not
formally organized), or otherwise acting jointly or in concert or
in a coordinated or consciously parallel manner (whether or not
pursuant to any express agreement), for the purpose of acquiring,
holding, voting, or disposing of securities of the Company with
such Person, shall be deemed a single "Person."
(i) Potential
Change in Control: shall be deemed to have occurred if (i) the
Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any Person
(including the Company) publicly announces an intention to take or
to consider taking actions that, if consummated, would constitute a
Change in Control; (iii) any Acquiring Person who is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power of
the then outstanding Voting Securities of the Company increases its
beneficial ownership of such securities by 5% or more over the
percentage so owned by that Person on the date of this Agreement;
or (iv) the Board of Directors of the Company adopts a resolution
to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(j) Reviewing
Party: any appropriate person or body consisting of a member or
members of the Company's Board of Directors or any other person or
body appointed by the Board who is not a party to the particular
Claim for which Indemnitee is seeking indemnification or
Independent Legal Counsel.
(k) Subsidiary:
with respect to any Person, any corporation or other entity of
which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by
that Person.
(l) Voting
Securities: any securities that vote generally in the election of
directors, in the admission of general partners, or in the
selection of any other similar governing body.
2.
BASIC INDEMNIFICATION AND EXPENSE REIMBURSEMENT
ARRANGEMENT
(a) If
Indemnitee was, is, or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written
demand is presented to the Company, against any and all Expenses,
judgments, fines, penalties, or amounts paid in settlement
(including all interest, assessments, and other charges paid or
payable in connection with or in respect of such Expenses,
judgments, fines, penalties, or amounts paid in settlement) of or
with respect to that Claim and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (including the
creation of the trust referred to in Section 4 hereof).
Notwithstanding anything in this Agreement to the contrary and
except as provided in Section 5, prior to a Change in Control,
Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Claim initiated by 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 Claim. Notwithstanding the foregoing, the obligations of the
Company under Section 2(a) shall be subject to the condition that
the Reviewing Party shall not have determined (in a written
opinion, in any case in which Independent Legal Counsel referred to
in Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law. Nothing contained
in this Agreement shall require any determination under this
Section 2(a) to be made by the Reviewing Party prior to the
disposition or conclusion of the Claim against the Indemnitee;
provided, however, that Expense Advances shall continue to be made
by the Company pursuant to and to the extent required by the
provisions of Section 2(b).
(b) If so
requested by Indemnitee, the Company shall pay any and all Expenses
incurred by Indemnitee (or, if applicable, reimburse Indemnitee for
any and all Expenses incurred by Indemnitee and previously paid by
Indemnitee) within five business days after such
