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Exhibit 10.1
[ Form of ]
INDEMNIFICATION AGREEMENT
This Agreement, made and entered
into as of this ___ day of
, 2007 ("Agreement"), by and between Intellect Neurosciences, Inc.,
a Delaware corporation (the "Company"), and
(the "Indemnitee").
WHEREAS, highly competent persons
are reluctant to serve corporations as directors, officers or in
other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS, the current
impracticability of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the
difficulty of attracting and retaining such persons;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so
indemnified; and
WHEREAS, Indemnitee is willing to
serve, continue to serve and to take on additional service for or
on behalf of the Company on the condition that Indemnitee be
indemnified to the fullest extent permitted.
NOW, THEREFORE, in consideration
of the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
ARTICLE I
Definitions
For purposes of this Agreement the
following terms shall have the meanings indicated:
1.01 " Board " shall mean
the Board of Directors of the Company.
1.02 " Corporate Status "
describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Company or of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other Enterprise which such person is or was
serving at the request or on behalf of the Company.
1.03 " Court " means the
Court of Chancery of the State of Delaware, the court in which the
Proceeding in respect of which indemnification is sought by the
Indemnitee shall have been brought or is pending, or another court
having subject matter jurisdiction and personal jurisdiction over
the parties.
1.04 " Disinterested
Director " means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
1.05 " Enterprise " shall
mean the Company and any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the express written request of the
Company as a director, officer, employee, agent, trustee or
fiduciary.
1.06 " Expenses " shall
include, without limitation, all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage,
delivery service fees, facsimile transmission charges, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating or being or preparing to be a witness in a
Proceeding.
1.07 " Good Faith " shall
mean Indemnitee having acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, in the case of an Enterprise which is
an employee benefit plan, the best interests of the participants or
beneficiaries of said plan, as the case may be, and, with respect
to any Proceeding which is criminal in nature, having had no
reasonable cause to believe Indemnitee’s conduct was
unlawful.
1.08 " Improper Personal
Benefit " shall include, but not be limited to, the personal
gain in fact by reason of a person’s Corporate Status of a
financial profit, monies or other advantage not also accruing to
the benefit of the Company or to the stockholders generally and
which is unrelated to his usual compensation including, but not
limited to, (i) in exchange for the exercise of influence over
the Company’s affairs, (ii) as a result of the diversion
of corporate opportunity, or (iii) pursuant to the use or
communication of confidential or inside information for the purpose
of generating a profit from trading in the Company’s
securities. Notwithstanding the foregoing, "Improper Personal
Benefit" shall not include any benefit, directly or indirectly,
related to actions taken in order to evaluate, discourage, resist,
prevent or negotiate any transaction with or proposal from any
person or entity seeking control of, or a controlling interest in,
the Company.
1.09 " Independent Counsel
" means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and may include law firms or members
thereof that are regularly retained by the Company but not any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
standards of professional conduct then prevailing and applicable to
such counsel, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
1.10 " Officer " means the
president, vice presidents, treasurer, assistant treasurer(s),
secretary, assistant secretary and such other executive officers as
are appointed by the board of directors of the Company or
Enterprise, as the case may be.
1.11 " Proceeding "
includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation (including any internal
corporate investigation), administrative hearing or any other
actual, threatened or completed proceeding, whether civil,
criminal, administrative or investigative, other than one initiated
by Indemnitee. For purposes of the foregoing sentence, a
"Proceeding" shall not be deemed to have been initiated by
Indemnitee where Indemnitee seeks, pursuant to Article VIII of
this Agreement, to enforce Indemnitee’s rights under this
Agreement.
ARTICLE II
Term of Agreement
This Agreement shall continue
until and terminate upon the later of: (i) ten (10) years
after the date that Indemnitee shall have ceased to serve as a
director, officer, employee, agent, trustee or fiduciary of the
Company or of any other Enterprise; or (ii) the final
termination of all pending Proceedings in respect of which
Indemnitee is granted rights of indemnification or advancement of
expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Article VIII of this Agreement relating thereto.
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ARTICLE III
Services by Indemnitee, Notice of
Proceedings
3.01 Services . Indemnitee
agrees to serve or continue to serve as a Director or Officer of
the Company for so long as he is duly elected or appointed.
Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any
obligation imposed by operation of law).
3.02 Notice of Proceeding .
Indemnitee agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder, but the omission so to
notify the Company shall not relieve the Company from its
obligations hereunder.
ARTICLE IV
Indemnification
4.01 In General . To the
fullest extent permitted by applicable law, in connection with any
Proceeding, the Company shall indemnify, and advance Expenses, to
Indemnitee as provided in this Agreement.
4.02 Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 4.02 if, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be made, a party to or
is otherwise involved in any Proceeding, other than a Proceeding by
or in the right of the Company. Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in Good Faith
and such Indemnitee has not been adjudged during the course of such
Proceeding to have derived an Improper Personal Benefit from the
transaction or occurrence forming the basis of such Proceeding.
4.03 Proceedings by or in the
Right of the Company .
(a) Indemnitee shall be
entitled to the rights of indemnification provided in this Section
4.03 if, by reason of Indemnitee’s Corporate Status,
Indemnitee is, or is threatened to be made, a party to or is
otherwise involved in any Proceeding brought by or in the right of
the Company to procure a judgment in its favor. Indemnitee shall be
indemnified against Expenses, judgments, penalties, and amounts
paid in settlement, actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with such Proceeding
if Indemnitee acted in Good Faith and such Indemnitee has not been
adjudged during the course of such Proceeding to have derived an
Improper Personal Benefit from the transaction or occurrence
forming the basis of such Proceeding. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any
claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company if applicable
law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification shall nevertheless be
made by the Company in such event if and only to the extent that
the Court which is considering the matter shall so determine.
4.04 Indemnification of a Party
Who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to or is
otherwise involved in and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified, to
the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines, and amounts paid in settlement,
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actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify
Indemnitee, to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this
Section 4.04 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
4.05 Indemnification for
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness in any Proceeding,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith.
ARTICLE V
Advancement of Expenses
Notwithstanding any provision to
the contrary in Article VI and to the fullest extent provided
by applicable law, the Company (acting through the Chief Executive
Officer) shall advance all reasonable Expenses which, by reason of
Indemnitee’s Corporate Status, were incurred by or on behalf
of Indemnitee in connection with any Proceeding, within thirty
(30) days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances,
whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.
Any advance and undertakings to repay pursuant to this
Article V shall be unsecured and interest free. Advancement of
Expenses pursuant to this Article V shall not require approval
of the Board of Directors or the stockholders of the Company, or of
any other person or body. The Secretary of the Company shall
promptly advise the Board in writing of the request for advancement
of E
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