Exhibit 10.4
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 Peter B. Hirshfield (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 be 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 Delaware, 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
