Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (this
“ Agreement ”) is made and entered into this
day of
,
2009 (the “Effective Date”) by and between Inovio
Biomedical Corporation, a Delaware corporation (the “
Company ”), and
[ ]
(the “ Indemnitee ”).
WHEREAS, the Company believes it is
essential to retain and attract qualified directors and
officers;
WHEREAS, the Indemnitee is a
director and/or officer of the Company;
WHEREAS, both the Company and the
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies;
WHEREAS, the Company’s Amended
and Restated Certificate of Incorporation (the
“Certificate of Incorporation ”) and Bylaws (the
“ Bylaws ”) require the Company to indemnify and
advance expenses to its directors and officers to the extent
permitted by the DGCL (as hereinafter defined);
[WHEREAS, the Indemnitee has been
serving and intends to continue serving as a director and/or
officer of the Company in part in reliance on the Certificate of
Incorporation and Bylaws(1);] and
WHEREAS, in recognition of the
Indemnitee’s need for (i) substantial protection against
personal liability based on the Indemnitee’s reliance on the
Certificate of Incorporation and Bylaws, (ii) specific
contractual assurance that the protection promised by the
Certificate of Incorporation and Bylaws will be available to the
Indemnitee, regardless of, among other things, any amendment to or
revocation of the Bylaws or any change in the composition of the
Company’s Board of Directors (the “ Board
”) or acquisition transaction relating to the Company, and
(iii) an inducement to continue to provide effective services
to the Company as a director and/or officer thereof, the Company
wishes to provide for the indemnification of the Indemnitee and to
advance expenses to the Indemnitee to the fullest extent permitted
by law and as set forth in this Agreement, and, to the extent
insurance is maintained by the Company, to provide for the
continued coverage of the Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies;
[WHEREAS, the Indemnitee is relying
upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director, officer or employee of
the Company;](2)
NOW, THEREFORE, in consideration of
the premises contained herein and of the Indemnitee continuing to
serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties
hereto agree as follows:
(1) Include if the Indemnitee
is not a new officer/director.
(2) Include if the Indemnitee
is a new officer/director.
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1.
Certain
Definitions.
(a)
A “ Change in Control
” shall be deemed to have occurred if:
(i)
any “person,” as such
term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the “ Exchange Act ”),
other than (a) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company; (b) a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company; or (c) any current
beneficial stockholder or group, as defined by Rule 13d-5 of
the Exchange Act, including the heirs, assigns and successors
thereof, of beneficial ownership, within the meaning of
Rule 13d-3 of the Exchange Act, of securities possessing more
than 50% of the total combined voting power of the Company’s
outstanding securities; hereafter becomes the “beneficial
owner,” as defined in Rule 13d-3 of the Exchange Act,
directly or indirectly, of securities of the Company representing
20% or more of the total combined voting power represented by the
Company’s then outstanding Voting Securities;
(ii)
during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board and any new director whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;
or
(iii)
the stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company’s
assets.
(b)
“ DGCL ” shall
mean the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended or interpreted; provided,
however, that in the case of any such amendment or interpretation,
only to the extent that such amendment or interpretation permits
the Company to provide broader indemnification rights than were
permitted prior thereto.
(c)
“ Expense ” shall
mean attorneys’ fees and all other costs, expenses and
obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on
appeal), or preparing for any of the foregoing, any Proceeding
relating to any Indemnifiable Event.
(d)
“ Indemnifiable Event
” shall mean any event or occurrence that takes place either
prior to or after the execution of this Agreement, related to the
fact that the Indemnitee is
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or was a director or officer of the Company, or
is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, or by reason of
anything done or not done by the Indemnitee in any such
capacity.
(e)
“ Proceeding ”
shall mean any threatened, pending or completed action, suit,
investigation or proceeding, and any appeal thereof, whether civil,
criminal, administrative or investigative and/or any inquiry or
investigation, whether conducted by the Company or any other party,
that the Indemnitee in good faith believes might lead to the
institution of any such action.
(f)
“ Reviewing Party
” shall mean any appropriate person or body consisting of a
member or members of the Company’s Board or any other person
or body appointed by the Board (including the special independent
counsel referred to in Section 6) who is not a party to the
particular Proceeding with respect to which the Indemnitee is
seeking indemnification.
(g)
“ Voting Securities
” shall mean any securities of the Company which vote
generally in the election of directors.
2.
Indemnification.
In the event the Indemnitee was or
is a party to or is involved (as a party, witness, or otherwise) in
any Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, whether the basis of the Proceeding is the
Indemnitee’s alleged action in an official capacity as a
director or officer or in any other capacity while serving as a
director or officer, the Company shall indemnify the Indemnitee to
the fullest extent permitted by the DGCL against any and all
Expenses, liability, and loss (including judgments, fines, ERISA
excise taxes or penalties, and amounts paid or to be paid in
settlement, and any interest, assessments, or other charges imposed
thereon, and any federal, state, local, or foreign taxes imposed on
any director or officer as a result of the actual or deemed receipt
of any payments under this Agreement) (collectively, “
Liabilities ”) reasonably incurred or suffered by such
person in connection with such Proceeding. The Company shall
provide indemnification pursuant to this Section 2 as soon as
practicable, but in no event later than 30 days after it receives
written demand from the Indemnitee. Notwithstanding anything
in this Agreement to the contrary and except as provided in
Section 5 below, the Indemnitee shall not be entitled to
indemnification pursuant to this Agreement (i) in connection
with any Proceeding initiated by the Indemnitee against the Company
or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Proceeding or
(ii) on account of any suit in which judgment is rendered
against the Indemnitee pursuant to Section 16(b) of the
Exchange Act for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company.
3.
Advancement of
Expenses. The
Company shall advance Expenses to the Indemnitee within 30 business
days of such request (an “ Expense Advance ”);
provided, however, that if required by applicable corporate laws
such Expenses shall be advanced only upon delivery to the Company
of an undertaking by or on behalf of the Indemnitee to repay such
amount if it is ultimately determined that the Indemnitee is not
entitled to be indemnified by
