Exhibit 10.52
INDEMNITY
AGREEMENT
T HIS I NDEMNITY A GREEMENT (this “Agreement”) is made and
entered into this day of
by and between ARCA biopharma, Inc., a Delaware corporation (the
“Corporation”), and
(“Agent”).
R ECITALS
W HEREAS , Agent has agreed to perform a valuable service
to the Corporation as a [director/officer] of the
Corporation;
W HEREAS , the
Corporation has previously adopted amended and restated bylaws (as
amended, 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”);
W HEREAS , 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
W HEREAS , in
order to induce Agent to serve as a [director/officer] of the
Corporation, the Corporation has determined and agreed to enter
into this Agreement with Agent;
N OW ,
T HEREFORE
, in consideration of Agent’s
service as a [director/officer] of the Corporation after the date
hereof, the parties hereto agree as follows:
A GREEMENT
1. Services to the
Corporation. Agent will serve, at the will of the Corporation
or under separate contract, if any such contract exists, as a
[director/officer] 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.
Subject in all instances to the terms, conditions and limitations
of this Agreement, 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 8 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 solely 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 is
established by a final judgment as knowingly fraudulent or
deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent’s conduct that is
established by a final judgment as constituting a breach of
Agent’s duty of loyalty to the Corporation or resulting in
any personal profit or advantage to which Agent was not legally
entitled;
(d) [subject to Section 11(c) herein,] 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 (it also being understood that with respect to any policy
or policies of director’s and officer’s liability
insurance procured by the Corporation, in its discretion, for the
benefit of its officers and directors, (i) Agent shall be
named as an insured, (ii) the Company shall give prompt notice
of the commencement of any proceeding involving Agent for which
Agent is insured to the insurers in accordance with the procedures
set forth in the respective policies, (iii) the Corporation
shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Agent, all amounts payable as a
result of such proceeding in accordance with the terms of such
policies, and (iv) in the event the Corporation makes any
indemnification payments to Agent and Agent is subsequently
reimbursed from the proceeds of insurance, Agent shall promptly
refund such indemnification payments to the Corporation to the
extent of such insurance reimbursement).
2.
(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 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, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so
long as Agent shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason
of the fact that Agent was serving in the capacity referred to
herein.
6. Partial
Indemnification. Agent
shall be entitled under this Agreement to indemnification by the
Corporation for a portion of the 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 in connection with any action, suit or
proceeding referred to in Section 3 hereof even if not
entitled hereunder to indemnification for the total amount thereof,
and the Corporation shall indemnify Agent for the portion thereof
to which Agent is entitled.
7. Notification and Defense of
Claim. Not later than
thirty (30) days after receipt by Agent of notice of the
commencement of any action, suit or proceeding, Agent will, if a
claim in respect thereof is to be made against the Corporation
under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Agent otherwise
than under this Agreement. Wit
