Exhibit 10.45
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is made and entered into as of
_______________, 200__ between PharmAthene, Inc., a Delaware
corporation (including its predecessors, successors and assigns,
the “ Company ”), and ____________________
(“ Indemnitee ”).
WITNESSETH THAT:
WHEREAS, highly competent persons
have become more reluctant to serve corporations as directors 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 Board of Directors of
the Company (the “ Board ”) has determined that,
in order to attract and retain qualified individuals, the Company
will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the
furnishing of such insurance has been a customary and widespread
practice among United States-based corporations and other business
enterprises, the Company believes that, given current market
conditions and trends, such insurance may be available to it in the
future only at higher premiums and with more exclusions. At
the same time, directors, officers, and other persons in service to
corporations or business enterprises are being increasingly
subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been
brought only against the Company or business enterprise
itself. Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware
(“ DGCL ”). The By-laws and the DGCL
expressly provide that the indemnification provisions set forth
therein are not exclusive, and thereby contemplate that contracts
may be entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification;
WHEREAS, the uncertainties relating
to such insurance and to indemnification have increased the
difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined
that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, 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;
WHEREAS, this Agreement is a
supplement to and in furtherance of the By-laws of the Company and
any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder;
WHEREAS, Indemnitee does not regard
the protection available under the Company’s
By-laws and insurance as adequate in the present
circumstances, and may not be willing to serve as an officer or
director without adequate protection, and the Company desires
Indemnitee to serve in such capacity. 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 he be so
indemnified; and
WHEREAS, Indemnitee has certain
rights to indemnification and/or insurance provided by
[_______________________] (together with its related persons,
“[___________]”) which Indemnitee and
[___________] intend to be secondary to the primary
obligation of the Company to indemnify Indemnitee as provided
herein, with the Company’s acknowledgement and agreement to
the foregoing being a material condition to Indemnitee’s
willingness to serve on the Board.
NOW, THEREFORE, in consideration of
Indemnitee’s agreement to serve as an director after the date
hereof, the parties hereto agree as follows:
1.
Indemnity of
Indemnitee . The
Company hereby agrees to hold harmless and indemnify Indemnitee to
the fullest extent permitted by law, as such may be amended from
time to time. In furtherance of the foregoing
indemnification, and without limiting the generality
thereof:
(a)
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 l(a) if, by reason of his Corporate
Status (as hereinafter defined), the Indemnitee is, or is
threatened to be made, a party to or participant in any Proceeding
(as hereinafter defined) other than a Proceeding by or in the right
of the Company. Pursuant to this Section 1(a) ,
Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any claim, issue or
matter therein, if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any
criminal Proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful.
(b)
Proceedings by or in the Right of
the Company .
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1(b) if, by reason of
his Corporate Status, the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding brought by or in
the right of the Company. Pursuant to this
Section 1(b) , Indemnitee shall be indemnified against
all Expenses actually and reasonably incurred by the Indemnitee, or
on the Indemnitee’s behalf, in connection with such
Proceeding if the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company; provided, however, if applicable law
so provides, no indemnification against such Expenses 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 unless and to the extent that the Court of Chancery of the
State of Delaware shall determine that such indemnification may be
made.
(c)
Indemnification for Expenses 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 his
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law,
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as such may be amended from time to time,
against all Expenses actually and reasonably incurred by him or on
his 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 against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section 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.
2.
Additional Indemnity
. In addition to, and without
regard to any limitations on, the indemnification provided for in
Section 1 of this Agreement, the Company shall and
hereby does indemnify and hold harmless Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf
if, by reason of his Corporate Status, he is, or is threatened to
be made, a party to or participant in any Proceeding (including a
Proceeding by or in the right of the Company), including, without
limitation, all liability arising out of the negligence or active
or passive wrongdoing of Indemnitee. The only limitation that
shall exist upon the Company’s obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make
any payment to Indemnitee that is finally determined (under the
procedures, and subject to the presumptions, set forth in
Sections 6 and 7 hereof) to be unlawful.
3.
Contribution
.
(a)
Whether or not the indemnification
provided in Sections 1 and 2 hereof is available, in
respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such action, suit or proceeding), the
Company shall pay, in the first instance, the entire amount of any
judgment or settlement of such action, suit or proceeding without
requiring Indemnitee to contribute to such payment and the Company
hereby waives and relinquishes any right of contribution it may
have against Indemnitee. The Company shall not enter into any
settlement of any action, suit or proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding) unless such settlement provides for a
full and final release of all claims asserted against
Indemnitee.
(b)
Without diminishing or impairing the
obligations of the Company set forth in the preceding subparagraph,
if, for any reason, Indemnitee shall elect or be required to pay
all or any portion of any judgment or settlement in any threatened,
pending or completed action, suit or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall contribute to
the amount of Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by the
Company and all officers, directors or employees of the Company,
other than Indemnitee, who are jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), on the one
hand, and Indemnitee, on the other hand, from the transaction from
which such action, suit or proceeding arose; provided, however,
that the proportion determined on the basis of relative benefit
may, to the extent necessary to conform to law, be further adjusted
by reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, in connection with the events
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that resulted in such expenses, judgments, fines
or settlement amounts, as well as any other equitable
considerations which the Law may require to be considered.
The relative fault of the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly
liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand,
shall be determined by reference to, among other things, the degree
to which their actions were motivated by intent to gain personal
profit or advantage, the degree to which their liability is primary
or secondary and the degree to which their conduct is active or
passive.
(c)
The Company hereby agrees to fully
indemnify and hold Indemnitee harmless from any claims of
contribution which may be brought by officers, directors or
employees of the Company, other than Indemnitee, who may be jointly
liable with Indemnitee.
(d)
To the fullest extent permissible
under applicable law, if the indemnification provided for in this
Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute
to the amount incurred by Indemnitee, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in settlement
and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of
such Proceeding in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (ii) the relative fault of the Company (and
its directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or
transaction(s).
4.
Indemnification for Expenses of a
Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness, or is made (or asked to) respond to discovery requests, in
any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
5.
Advancement of
Expenses .
Notwithstanding any other provision of this Agreement, the Company
shall advance all Expenses incurred by or on behalf of Indemnitee
in connection with any Proceeding by reason of Indemnitee’s
Corporate Status within thirty (30) days after the receipt by the
Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, 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
advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses. Any
advances and undertakings to repay pursuant to this
Section 5 shall be unsecured and interest
free.
6.
Procedures and Presumptions for
Determination of Entitlement to Indemnification
. It is the intent of this
Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the Delaware General
Corporation Law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and
presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification under this
Agreement:
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(a)
To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of
the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification. Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to
the Company, or to provide such a request in a timely fashion,
shall not relieve the Company of any liability that it may have to
Indemnitee unless, and to the extent that, such failure actually
and materially prejudices the interests of the Company.
(b)
Upon written request by Indemnitee
for indemnification pursuant to the first sentence of
Section 6(a) hereof, a determination, if required
by applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following
four methods, which shall be at the election of the board:
(1) by a majority vote of the disinterested directors, even
though less than a quorum, (2) by a committee of disinterested
directors designated by a majority vote of the disinterested
directors, even though less than a quorum, (3) if there are no
disinterested directors or if the disinterested directors so
direct, by independent legal counsel in a written opinion to the
Board of Directors, a copy of which shall be delivered to the
Indemnitee, or (4) if so directed by the Board of Directors,
by the stockholders of the Company. For purposes hereof,
disinterested directors are those members of the board of directors
of the Company who are not parties to the action, suit or
proceeding in respect of which indemnification is sought by
Indemnitee.
(c)
If the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to
Section 6(b) hereof, the Independent Counsel
shall be selected as provided in this Section 6(c)
. The Independent Counsel shall be selected by the Board of
Directors. Indemnitee may, within 10 days after such written
notice of selection shall have been given, deliver to the Company,
as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “ Independent Counsel ” as
defined in Section 13 of this Agreement, and the
objection shall set forth with particularity the factual basis of
such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a
written objection is made and substantiated, the Independent
Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that
such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 6(a) hereof, no Independent
Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Court of Chancery of the
State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the
Indemnitee to the Company’s selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent
Counsel under Section 6(b) hereof. The
Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and
expenses incident to the procedures of this
Section 6(c) , regardless of the manner in which such
Independent Counsel was selected or appointed.
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(d)
In making a determination with
respect to entitlement to indemnification hereunder, the person or
persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this
Agreement. Anyone seeking to overcome this presumption shall
have the burden of proof and the
