This Agreement is made and
entered into this ___ day of ___, ______ by and between IDM Pharma,
Inc., a Delaware corporation (the “Corporation”), and
____________ (“Agent”).
Whereas , Agent performs a
valuable service to the Corporation in his capacity as an
[officer/director] of the Corporation;
Whereas , the stockholders of
the Corporation have adopted bylaws (the “Bylaws”)
providing for the indemnification of the directors, officers,
employees and other agents of the Corporation, including persons
serving at the request of the Corporation in such capacities with
other corporations or enterprises, as authorized by the Delaware
General Corporation Law, as amended (the
“Code”);
Whereas , the Bylaws and the
Code, by their non-exclusive nature, permit contracts between the
Corporation and its agents, officers, employees and other agents
with respect to indemnification of such persons; and
Whereas , in order to induce
Agent to continue to serve as an [officer/director] of the
Corporation, the Corporation has determined and agreed to enter
into this Agreement with Agent;
Now, Therefore , in
consideration of Agent’s continued service as an
[officer/director] after the date hereof, the parties hereto agree
as follows:
1.
Services to the
Corporation . Agent will serve, at the will of the
Corporation or under separate contract, if any such contract
exists, as an [officer/director] of the Corporation or as a
director, officer or other fiduciary of an affiliate of the
Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of his ability so long as
he is duly elected and qualified in accordance with the provisions
of the Bylaws or other applicable charter documents of the
Corporation or such affiliate; provided, however, that Agent may at
any time and for any reason resign from such position (subject to
any contractual obligation that Agent may have assumed apart from
this Agreement) and that the Corporation or any affiliate shall
have no obligation under this Agreement to continue Agent in any
such position.
2.
Indemnity of
Agent . The Corporation hereby agrees to hold harmless
and indemnify Agent to the fullest extent authorized or permitted
by the provisions of the Bylaws and the Code, as the same may be
amended from time to time (but, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than the Bylaws or the Code permitted prior
to adoption of such amendment).
1.
3.
Additional
Indemnity . In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to
the exclusions set forth in Section 4 hereof, the Corporation
hereby further agrees to hold harmless and indemnify
Agent:
(a) against any and all expenses (including attorneys’
fees), witness fees, damages, judgments, fines and amounts paid in
settlement and any other amounts that Agent becomes legally
obligated to pay because of any claim or claims made against or by
him in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the
right of the Corporation) to which Agent is, was or at any time
becomes a party, or is threatened to be made a party, by reason of
the fact that Agent is, was or at any time becomes a director,
officer, employee or other agent of Corporation, or is or was
serving or at any time serves at the request of the Corporation as
a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Agent by the Corporation under the non-exclusivity provisions of
the Code and Section 42 of the Bylaws.
4.
Limitations on Additional
Indemnity . No indemnity pursuant to Section 3
hereof shall be paid by the Corporation:
(a) on account of any claim against Agent for an accounting
of profits made from the purchase or sale by Agent of securities of
the Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that was knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent’s conduct that constituted a
breach of Agent’s duty of loyalty to the Corporation or
resulted in any personal profit or advantage to which Agent was not
legally entitled;
(d) for which payment is actually made to Agent under a
valid and collectible insurance policy or under a valid and
enforceable indemnity clause, bylaw or agreement, except in respect
of any excess beyond payment under such insurance, clause, bylaw or
agreement;
(e) if indemnification is not lawful (and, in this respect,
both the Corporation and Agent have been advised that the
Securities and Exchange Commission believes that indemnification
for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable and that
claims for indemnification should be submitted to appropriate
courts for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by Agent, or any proceeding by Agent against the
Corporation or its directors, officers, employees or other agents,
unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized by the Board of
Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to
the powers
2.
vested in the
Corporation under the Code, or (iv) the proceeding is
initiated pursuant to Section 9 hereof.
5.
Continuation of
Indemnity . All agreements and obligations of the
Corporation contained herein shall continue during the period Agent
is a director, officer, employee or other agent of the Corporation
(or is or was serving at the request of the Corporation as a
director, off
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