INDEMNIFICATION
AGREEMENT
This AGREEMENT is made and entered into as of
August 19, 2009, between THE QUIGLEY CORPORATION , a
corporation organized under the laws of the State of Nevada (the "
Corporation "), and _____________________ ("
Indemnitee ").
WHEREAS , it is essential to the Corporation to retain
and attract as officers and directors of the Corporation the most
capable persons available; and
WHEREAS , the Corporation has requested that Indemnitee
become or remain an officer and/or director of the Corporation;
and
WHEREAS , both the Corporation and Indemnitee recognize
the increased risk of litigation and other claims being asserted
against officers and directors of companies in today's environment;
and
WHEREAS , the Corporation's By-Laws provide that the
Corporation will indemnify its officers and directors to the
fullest extent permitted by law and will advance expenses in
connection therewith, and Indemnitee's willingness to serve as an
officer and/or director of the Corporation is based in part on
Indemnitee's reliance on such provisions; and
WHEREAS , in recognition of Indemnitee's need for
substantial protection against personal liability in order to
enhance Indemnitee's service to the Corporation in an effective
manner, and Indemnitee's reliance on the aforesaid provisions of
the By-Laws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
provisions will be available to Indemnitee regardless of, among
other things, any amendment to or revocation of such provisions or
any change in the composition of the Corporation's Board of
Directors or any acquisition or business combination transaction
relating to the Corporation, the Corporation wishes to provide in
this Agreement for the indemnification and advancement of expenses
to Indemnitee as set forth in this Agreement.
NOW, THEREFORE , in consideration of the mutual agreements
herein set forth, the parties hereto hereby agree as
follows:
(a) To the fullest extent permitted by law (and
regardless of any future provision of the Articles of Incorporation
(the “ Articles ”) or any By-Law to the
contrary), the Corporation shall indemnify Indemnitee in the event
Indemnitee is made, or threatened to be made, a party or a witness,
or is otherwise a participant in or to, an action, investigation or
proceeding, whether civil, administrative or criminal (including
but not limited to an action, investigation or proceeding by or in
the right of the Corporation or by or in the right of any other
corporation or business entity of any type or kind, domestic or
foreign, which any officer and/or director of the Corporation
served in any capacity at the request of the Corporation), by
reason of the fact that Indemnitee is or was an officer and/or
director of the Corporation (or served any other corporation or
business entity of any type or kind, domestic or foreign, in any
capacity at the request of the Corporation). The
foregoing indemnification shall be from and against all judgments,
fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys’ fees, actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with such action, suit, investigation or proceeding, or
any appeal therein. The Corporation shall pay, in
advance of final disposition of any such action, suit,
investigation or proceeding, expenses (including attorneys’
fees) incurred by Indemnitee in defending or otherwise responding
to such action or proceeding upon receipt of (1) a written
affirmation by the Indemnitee of the Indemnitee’s good faith
belief that Indemnitee has met the standard of conduct necessary
for indemnification by the Corporation, and (2) a
written undertaking by or on behalf of Indemnitee to repay
the amounts advanced if it is determined in a final
order issued by a court of competent jurisdiction from which no
appeal may be taken that the Indemnitee did not meet the required
standard of conduct. The aforesaid written affirmation and
undertaking shall be consistent with provisions of applicable law,
including but not limited to the Nevada General Corporation
Law. For purposes of this Agreement, references to
"serving at the request of the Corporation" shall include any
service as an officer and/or director of the Corporation which
imposes duties on, or involves services by, such an officer and/or
director with respect to an employee benefit plan or its
participants or beneficiaries, including but not limited to service
as a trustee or administrator of any such benefit plan.
(b) Notwithstanding anything to the contrary in
Section 1(a), the Corporation shall indemnify Indemnitee in any
action, suit or proceeding initiated by Indemnitee only if
Indemnitee acted with the authorization of the Corporation in
initiating that action, suit investigation or proceeding;
provided, however, that any action or proceeding brought
under Section 9 shall not be subject to this Section 1(b), and it
is expressly agreed that the Corporation shall bear any and all
fees and expenses incurred by Indemnitee in seeking to enforce this
agreement.
(c) Indemnitee shall be presumed to be
entitled to indemnification for matters covered in this Agreement.
The burden of proof of establishing that Indemnitee is not entitled
to indemnification shall be on the Corporation.
(d) Neither the Corporation nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement of
an indemnified claim, provided, however, that no party shall be
required to admit liability in connection with any proposed
settlement and Indemnitee shall not be required to bear any cost or
expense in connection with any proposed settlement of an
indemnifiable claim.
2 .
Partial Indemnity; Successful Defense.
(a) If Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Corporation
for some or a portion of the expenses, judgments, fines, taxes,
penalties and amounts paid in settlement but not for the total
amount thereof, the Corporation shall indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
(b) To the extent that Indemnitee has been
successful on the merits or otherwise in defense or settlement of
any action, suit, investigation or proceeding or in defense of any
issue or matter therein, including, without limitation, dismissal
without prejudice, Indemnitee shall be indemnified against any and
all expenses (including but not limited to attorneys’ fees),
judgments, fines, taxes, penalties and amounts paid in settlement
with respect to such action, suit or proceeding. Moreover, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all claims relating in whole or in
part to an indemnifiable event or in defense of any issue or matter
therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against all costs,
charges and expenses, including, without limitation, attorneys'
fees and other fees and expenses, incurred in connection therewith
without further action or determination.
(c) For purposes of this Agreement, the
termination of any action, suit, investigation or proceeding, by
judgment, order, settlement (whether with or without court
approval), shall not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not
permitted by applicable law or this Agreement.
3
. Notice by
Indemnitee .
Indemnitee shall notify the Corporation in
writing of any matter with respect to which Indemnitee intends to
seek indemnification hereunder as soon as reasonably practicable
following the receipt by Indemnitee of written threat thereof;
provided, however, that failure to so notify the Corporation
shall not constitute a waiver by Indemnitee of his rights
hereunder.
4
. Advancement of
Expenses.
In the event of any action, suit, investigation
or proceeding against Indemnitee which may give rise to a right of
indemnification from the Corporation pursuant to this Agreement,
following written request to the Corporation by Indemnitee, the
Corporation shall advance to Indemnitee (or, at the request of the
Indemnitee, to such parties as are conducting the defense of any
indemnified claim) amounts to cover expenses incurred by Indemnitee
in defending or otherwise responding to or participating in any
such action, suit, investigation or proceeding in advance of the
final disposition thereof upon receipt of (a) an Undertaking by or
on behalf of Indemnitee substantially in the form annexed hereto as
Exhibit A to repay the amount advanced in the event it
shall ultimately be determined by a court of competent jurisdiction
from which no appeal can be taken that Indemnitee is not entitled
to
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