EXHIBIT 10.8
ISTA PHARMACEUTICALS,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“ Agreement ”) is made as of this ___ day of
_________, _____, by and between ISTA Pharmaceuticals, Inc., a
Delaware corporation (the “ Company ”), and
____________________ (“ Indemnitee
”).
WHEREAS
, the Company and Indemnitee
recognize the significant cost of directors’ and
officers’ liability insurance and the general reductions in
the coverage of such insurance;
WHEREAS
, the Company and Indemnitee further
recognize the substantial increase in corporate litigation in
general, subjecting officers, directors and investors to expensive
litigation risks at the same time as the coverage of liability
insurance has been severely limited;
WHEREAS
, the Company desires to attract and
retain highly qualified individuals to serve as officers and
directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection
permitted by law; and
WHEREAS
, certain stockholders have
requested, and the Company has elected to grant to them,
indemnification in connection with their ownership of the
Company’s capital stock.
NOW, THEREFORE
, in consideration for
Indemnitee’s services as an officer or director of, or in
connection with Indemnitee’s investment in, the Company, the
Company and Indemnitee hereby agree as follows:
1. Indemnification
.
(a) Third Party Proceedings .
The Company shall indemnify Indemnitee if Indemnitee is or was a
party or is threatened to be made a party to any threatened,
pending or completed action, suit, proceeding or any alternative
dispute resolution mechanism, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or
was a director, officer, employee, stockholder or agent of the
Company, or any subsidiary of the Company, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in
connection with such action, suit or proceeding if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe Indemnitee’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the
Right of the Company . The Company shall indemnify Indemnitee
if Indemnitee was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit 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 Indemnitee is or
was a director, officer, employee, stockholder or agent of the
Company, or any subsidiary of the Company, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees) and, to the fullest
extent permitted by law, amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or suit if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the
State of Delaware or such other court shall deem proper.
(c) Mandatory Payment of
Expenses . To the extent that Indemnitee has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Subsections (a) and (b) of this
Section 1, or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by Indemnitee in connection therewith.
2. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Company shall advance all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
any civil or criminal action, suit or proceeding referenced in
Section 1(a) or (b) hereof (but not amounts actually paid
in settlement of any such action, suit or proceeding). Indemnitee
hereby undertakes to repay such amounts advanced only if, and to
the extent that, it shall ultimately be determined that Indemnitee
is not entitled to be indemnified by the Company as authorized
hereby. The advances to be made hereunder shall be paid by the
Company to Indemnitee within thirty (30) days following
delivery of a written request therefor by Indemnitee to the
Company.
(b) Notice/Cooperation by
Indemnitee . Indemnitee shall, as a condition precedent to his
right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under
this Agreement. Notice to the Company shall be directed to the
President of the Company at the address shown on the signature page
of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). Notice shall be deemed
received three business days after the date postmarked if sent by
domestic certified or registered mail, properly addressed, five
business days if sent by airmail to a country outside of North
America; otherwise notice shall be deemed received when such notice
shall actually be received by the Company. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
2
(c) Procedure . Any
indemnification and advances provided for in Section 1 and
this Section 2 shall be made no later than thirty
(30) days after receipt of the written request of Indemnitee.
If a claim under this Agreement, under any statute, or under any
provision of the Company’s Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by the
Company within thirty (30) days after a written request for
payment thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action against
the Company to recover the unpaid amount of the claim and, subject
to Section 14 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys’
fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in connection with any action, suit or proceeding
in advance of its final disposition) that Indemnitee has not met
the standards of conduct which make it permissible under applicable
law for the Company to indemnify Indemnitee for the amount claimed.
However, Indemnitee shall be entitled to receive interim payments
of expenses pursuant to Subsection 2(a) unless and until such
defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties’
intention that if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or
its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) Notice to Insurers . If,
at the time of the receipt of a notice of a claim pursuant to
Section 2(b) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice
of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel . In
the eve
