INDEMNIFICATION
AGREEMENT
INDEMNIFICATION
AGREEMENT dated as of the [___] day of [___] (this
“Agreement”) by and between Biodel Inc., a Delaware
corporation (the “Company”), and [___] (the
“Indemnitee”), [a member of the board of
directors][and][an officer] of the Company.
The
Company desires to attract and retain the services of highly
qualified individuals, such as the Indemnitee, to serve as
directors or officers of the Company or its subsidiaries. In
furtherance thereof, the Company wishes to indemnify such
individuals so as to provide them with the protection set forth in
this Agreement. Therefore, the Company has agreed with the
Indemnitee upon the terms, provisions and conditions of
indemnification as set forth in this Agreement.
Certain
capitalized terms used in this Agreement are defined in section 7
hereof.
NOW
THEREFORE, the Company and the Indemnitee hereby agree as
follows:
1.1
Third Party Proceedings . The Company shall indemnify the
Indemnitee if the Indemnitee is or was a party to or witness or
other participant in, or is threatened to be made a party to, any
threatened or pending Action (other than any Action by or in the
right of the Company, as to which Section 1.2 shall be
applicable) by reason of the fact that Indemnitee is or was a
director or officer of the Company or any Subsidiary of the
Company, by reason of any action or inaction on the part of the
Indemnitee while a director or officer of the Company or any
Subsidiary of the Company, and/or by reason of the fact that the
Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another Entity, against all
of the Indemnitee’s Indemnified Losses if, but only if,
(i) 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 or such Subsidiary, and, with respect to
any criminal Action, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful, and (ii) such
indemnification is otherwise permitted by applicable law. The
termination of any Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the Indemnitee did
not act in good faith and in a manner that the Indemnitee
reasonably believed to be in the best interests of the Company or
such Subsidiary or that the Indemnitee had reasonable cause to
believe that the Indemnitee’s conduct was
unlawful.
1.2
Actions by or in the Right of the Company . The Company
shall indemnify the Indemnitee if the Indemnitee is or was a party
to or a witness or other participant in or is threatened to be made
a party to any threatened or pending Action by or in the right of
the Company or any Subsidiary of the Company to procure a judgment
in its favor by reason of the fact that the Indemnitee is or was a
director or officer of the Company or any Subsidiary of the
Company, by reason of any action or inaction on the part of the
Indemnitee while a director or officer of the Company or a
Subsidiary of the Company or by reason of the fact that the
Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another Entity, against all
Indemnified Losses if, but only if, (i) 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 its stockholders,
and (ii) such indemnification is permitted by applicable law.
No indemnification shall be made in respect of any Action as to
which the Indemnitee shall have been finally adjudged to be liable
to the Company in the performance of the Indemnitee’s duties
to the Company and its stockholders, unless and only to the extent
that the court in which such Action is or was pending shall
determine upon application that, in view of all the circumstances
of the Action, the Indemnitee is fairly and reasonably entitled to
indemnity for Indemnified Losses and then only to the extent that
the court shall determine.
2.
Expenses; Indemnification Procedure.
2.1
Advancement of Expenses . The Company shall advance all
reasonable out-of-pocket expenses incurred by the Indemnitee in
connection with the investigation, defense, settlement or appeal of
any Action referenced in Section 1.1 or 1.2 hereof. The
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified by the Company as
authorized hereby or that such indemnification is not otherwise
permitted by applicable law. The advances to be made hereunder
shall be paid by the Company to the Indemnitee within thirty
(30) days following delivery of a written request therefor
from the Indemnitee and the making of security arrangements
reasonably satisfactory to the Company. In the event it shall have
been ultimately determined that the Indemnitee is not entitled to
be indemnified by the Company as authorized hereby or that such
indemnification is not otherwise permitted by applicable law, any
advances made to the Indemnitee by the Company shall be repaid to
the Company within thirty (30) days following delivery of a
written request therefor from the Company.
2.2
Determination of Conduct . The determination that
indemnification of the Indemnitee is proper under the circumstances
because the Indemnitee has met the applicable standard of conduct
set forth in Sections 1.1 or 1.2 of this Agreement shall be
made by any of the following: (1) the Company’s Board of
Directors (or by a duly authorized executive committee thereof) by
a majority vote of directors (or committee members) who are not
parties to such Action, even though less than a quorum, (2) if
there are no such disinterested directors of the Company, or if
such disinterested directors so direct, by independent legal
counsel chosen by such disinterested director or the Company, in a
written opinion, or (3) by the Company’s stockholders,
with the shares owned by the Indemnitee not being entitled to vote
thereon. Notwithstanding the foregoing, if the Company does not
determine that indemnification is proper under the circumstances,
the Indemnitee may seek determination by any court of competent
jurisdiction that indemnification hereunder is
appropriate.
2.3
Notice/Cooperation by the Indemnitee . The Indemnitee shall,
as a condition precedent to the Indemnitee’s right to be
indemnified under this Agreement, give the Company notice in
writing as soon as practicable of any claim, and/or of the
commencement of any Action, against the Indemnitee for which
indemnification will or could be sought under this Agreement. Any
such notice to the Company shall be given in the manner set forth
in Section 8.1 hereof. In addition, the Indemnitee shall give
the Company such information and shall cooperate with respect to
such Action as the Company may reasonably require and as shall be
within the Indemnitee’s power. Failure to give prompt written
notice pursuant to this Section 2.3 shall release the Company
from its indemnification obligations hereunder if and only to the
extent that
2
the
Company’s ability to defend such Action is materially
affected by the failure to give such prompt written
notice.
2.4
Notice to Insurers . If, at the time of the receipt of a
notice pursuant to Section 2.3 of a claim, and/or of the
commencement of any Action, against the Indemnitee for which
indemnification will or could be sought under this Agreement, the
Company has director and/or officer liability insurance in effect,
the Company shall give prompt notice of such claim or the
commencement of such Action to the insurers in accordance with the
procedures set forth in the respective policies.
2.5
Selection of Counsel . In any matter for which the Company
shall provide indemnification for the Indemnitee, the Company shall
be entitled to assume the defense of the Action, with legal counsel
selected by the Company and reasonably acceptable to the
Indemnitee, upon the delivery to the Indemnitee of written notice
of its election so to do. After delivery of such notice and the
retention of legal counsel by the Company for that purpose, the
Company will not be liable to the Indemnitee under this Agreement
for any fees or expenses of legal counsel subsequently incurred by
the Indemnitee with respect to the same Action; provided
that the Indemnitee shall have the right to employ separate counsel
in any such proceeding at the Indemnitee’s sole cost and
expense.
3.
Additional Indemnification Provisions;
Non-Exclusivity.
3.1
Application . The provisions of this Agreement shall be
deemed applicable to all actual or alleged actions or omissions by
the Indemnitee arising, related to or connected with or during any
and all periods of time that the Indemnitee was, is, or shall be
serving as a director or officer of the Company or an
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