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Exhibit 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("
Indemnification Agreement ") is made as of the 5
th day of March 2008, by and between Pulmo BioTech Inc.,
a Delaware corporation (the " Company ") and Garry
McCann (the " Indemnitee ").
WHEREAS, the Company recognizes the Indemnitee's
need for substantial protection against personal liability in order
to enhance Indemnitee's effective service to the Company, and in
order to induce Indemnitee to provide services to the Company,
and;
WHEREAS, the Company wishes to provide this
Agreement for indemnification of and the advancing of expenses to
Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and the Indemnitee
agree as follows:
The Company agrees that if the Indemnitee is
made a party, or is threatened to he made a party, to any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (a " Proceeding "), by reason of the
fact that he is or was a director, officer or employee of the
Company or is or was serving at the request of the Company as a
director, officer, employee, agent, trustee, fiduciary or
administration of another corporation, partnership, joint venture,
trust or other enterprise, whether or not the basis of such
Proceeding is the Indemnitee's alleged action or inaction in an
official capacity while serving as a director, officer, employee,
agent, trustee, fiduciary or administrator, the Indemnitee shall be
indemnified and held harmless by the Company to the fullest extent
permitted or authorized by the Company's Articles of Incorporation
or By-laws or, if greater, by the laws of the State of Utah,
against all cost, expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines, excise taxes or
penalties and amounts paid or to be paid in settlement)
(collectively " Expenses ") reasonably incurred or
suffered by the Indemnitee in connection therewith, and such
indemnification shall continue as to the Indemnitee even if he has
ceases to be a director, officer or employee of Company or a
director, officer, employee, agent, trustee, fiduciary or
administration of another entity shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
The Company shall advance to the Indemnitee to
the extent permitted by law all reasonable costs and expenses
incurred by him in connection with a Proceeding within 30 days
after receipt by the Company of a written request, with appropriate
documentation, for such advance. Such request shall include an
undertaking by the Indemnitee to repay the amount of such advance
if it shall ultimately be determined that he is not entitled to be
indemnified against such costs and expenses.
Promptly after receipt by the Indemnitee of
notice of any claim or the commencement of any Proceeding with
respect to which the Indemnitee is entitled to indemnity hereunder,
the Indemnitee shall notify the Company in writing of such claim or
the commencement of such action or proceeding, and the Company
shall (i) assume the defense of such Proceeding, (ii) employ
counsel reasonably satisfactory to the Indemnitee and (iii) pay the
reasonable fees and expenses of such counsel. Notwithstanding the
preceding sentence, the Indemnitee, at his own expense, shall be
entitled to employ counsel separate from counsel for the Company
and from any other party in such action; provided, however, if the
Indemnitee reasonably determines that a conflict of interest exists
which makes representation by counsel chosen by the Company not
advisable or if the Company fails to employ counsel to assume the
defense of such proceeding, the reasonable fees and disbursements
of such separate counsel for the Indemnitee shall be paid by the
Company to the extent permitted by law. In addition, the Indemnitee
shall give the Company such information and cooperation with regard
to such Proceeding as it may reasonably require and as shall be in
the Indemnitee's power.
The Company shall not be required to indemnify
the Indemnitee against settlements entered into without the consent
of the Company. The Company shall not settle any Proceeding in any
manner that would impose any penalty, limitation or admission on
the Indemnitee without the Indemnitee's written consent. Neither
the Company nor the Indemnitee shall unreasonably withhold its or
his consent to any proposed settlement.
If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the Expenses, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which the Indemnitee is entitled. Both
the Company and the Indemnitee acknowledge that in certain
instances, federal or state law or applicable public policy may
prohibit the Company from indemnifying the Indemnitee under this
Agreement or otherwise.
If the Indemnitee has not received full
indemnification within 30 days after making a written demand on the
Company for indemnification, the Indemnitee shall have the right to
enforce his indemnification rights under this Agreement by
commencing litigation in any court in the State of New York having
subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court. The Company hereby
consents to service of process and to appear in any such
proceeding. The remedy provided for in this Section 6 shall be in
addition to any other remedies
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