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Exhibit 10.4
LIGHT SCIENCES ONCOLOGY, INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this "AGREEMENT"), dated as of ________
__,
2006, is entered into by and between Light Sciences Oncology, Inc.,
a Washington
corporation (the "COMPANY"), and __________________
("INDEMNITEE").
RECITALS
A.
The Company and indemnitee recognize the litigation risks inherent
in
service as a director and/or officer of a corporation, including
the substantial
costs involved in defending such matters.
B.
The Company's articles of incorporation (the "ARTICLES") and bylaws
(the
"BYLAWS") contain certain provisions, approved by the Company's
shareholders,
for indemnification of the Company's directors and/or officers to
the full
extent permitted by the Washington Business Corporation Act (the
"STATUTE").
C.
The Articles, the Bylaws and the Statute specifically provide that
they
are not exclusive, and contemplate that contracts may be entered
into between
the Company and its directors and/or officers with respect to
indemnification.
D.
The Indemnitee has indicated a desire to supplement the
indemnification
provisions in the Articles and Bylaws to provide additional
protections against
the risks associated with his service to the Company and further
clarify his
rights with respect to indemnification in certain
circumstances.
E. To induce
Indemnitee to continue his service as a director and/or
officer of the Company, the Company and the Indemnitee now agree
that they
should enter into this Indemnification Agreement.
AGREEMENT
1.
INDEMNIFICATION OF INDEMNITEE
1.1
SCOPE
Subject to Section 4.1 and all other terms and conditions of
this
Agreement, the Company agrees to indemnify and hold harmless
Indemnitee, to the
full extent permitted by law, whether or not specifically
authorized by this
Agreement, the Articles, the Bylaws, the Statute or otherwise, for
any
Indemnifiable Losses (as defined below) which the Indemnitee is or
becomes
legally obligated to pay in connection with any Proceeding. In the
event of any
change, after the date of this Agreement, in any applicable law,
statute or rule
regarding the right of a Washington corporation to indemnify a
director and/or
officer, such changes, to the extent that they would expand
Indemnitee's
indemnification rights, shall be within the purview of Indemnitee's
rights and
the Company's obligations under this Agreement, and, to the extent
that they
would narrow Indemnitee's indemnification rights, shall not affect
or limit the
scope of this Agreement; provided, however, that
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any change that is required by applicable laws, statutes or rules
to be applied
to this Agreement shall be so applied regardless of whether the
effect of such
change is to narrow Indemnitee's rights.
1.2
NONEXCLUSIVITY
The
indemnification provided by this Agreement is not exclusive of
any
rights to which Indemnitee may be entitled under the Articles, the
Bylaws, any
other agreement, any vote of shareholders or disinterested
directors, the
Statute, or otherwise, whether as to action in Indemnitee's
official capacity or
otherwise.
1.3
DEFINITION OF
INDEMNIFIABLE LOSSES
For
purposes of this Agreement, the term "INDEMNIFIABLE LOSSES"
shall
include (without limitation) any and all damages (compensatory,
exemplary,
punitive or otherwise), judgments, fines, penalties, settlements,
costs,
attorneys' fees and disbursements, costs of attachment or similar
bonds,
investigations, expenses of establishing a right to indemnification
under this
Agreement, and any other losses, claims, liabilities or other
expenses incurred
in connection with a Proceeding, subject to the limitations set
forth in Section
4.1 below.
1.4
DEFINITION OF
PROCEEDING
For
purposes of this Agreement, the term "PROCEEDING" shall include
(without limitation) any threatened, pending or completed claim,
action, suit or
proceeding, whether brought by or in the right of the Company or
otherwise, and
whether of a civil, criminal, administrative or investigative
nature, in which
the Indemnitee may be or may have been involved as a party or
otherwise
(including without limitation as a witness), (a) by reason of the
fact that
Indemnitee is or was, or has agreed to become, a director and/or
officer of the
Company, (b) by reason of any actual or alleged error or
misstatement or
misleading statement made or suffered by the Indemnitee, (c) by
reason of any
action taken by Indemnitee or of any inaction on Indemnitee's part
while acting
as such director and/or officer, or (d) by reason of the fact that
Indemnitee
was serving at the request of the Company as a director, trustee,
officer,
employee or agent of the Company or another corporation,
partnership, joint
venture, trust or other enterprise (including without limitation
employee
benefit plans and administrative committees thereof) (which request
will be
conclusively presumed in the case of any of the foregoing that are
"affiliates"
of the Company as defined in Rule 12b-2 under the Securities
Exchange Act of
1934, as amended); provided, however, that, except with respect to
an action to
enforce the provisions of this Agreement, the term "Proceeding"
shall not
include any action, suit, claim or proceeding instituted by or at
the direction
of Indemnitee unless such action, suit, claim or proceeding is or
was authorized
or ratified by the Company's Board of Directors.
1.5
DETERMINATION OF
ENTITLEMENT
In
the event that a determination of Indemnitee's entitlement to
indemnification is required pursuant to Section 23B.08.550 of the
Statute or its
successor or pursuant to other applicable law, the party specified
therein as
the determining party shall make such determination; provided,
however, (a) that
Indemnitee shall initially be presumed in all cases to be entitled
to
indemnification, (b) that Indemnitee may establish a conclusive
presumption of
any fact necessary to such a determination by delivering to the
Company a
declaration made under penalty of perjury that such fact is true
and (c) that,
unless the Company shall deliver to Indemnitee written notice of a
determination
that Indemnitee is not entitled to indemnification within twenty
(20) days of
the Company's receipt of
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Indemnitee's initial written request for indemnification, such
determination
shall conclusively be deemed to have been made in favor of the
Company's
provision of indemnification and Company agrees not to assert
otherwise.
1.6
SURVIVAL
The
indemnification provided under this Agreement shall apply to any
and
all Proceedings, notwithstanding that Indemnitee has ceased to
serve in a
capacity referred to in Section 1.4(a)-(d).
2. EXPENSE
ADVANCES
2.1
GENERALLY
The
right to indemnification for Indemnifiable Losses conferred by
Section
1 shall include the right to have the Company pay Indemnitee's
expenses in any
Proceeding as such expenses are incurred and in advance of such
Proceeding's
final disposition (such right is referred to hereinafter as an
"EXPENSE
ADVANCE"), subject to Sections 2.2, 4 and 5 and all other terms and
conditions
of this Agreement.
2.2
CONDITIONS TO EXPENSE
ADVANCE
The
Company's obligation to provide an Expense Advance is subject to
(a)
Indemnitee or his or her representative having first executed and
delivered to
the Company an undertaking, which need not be secured and shall be
accepted
without reference to Indemnitee's financial ability to make
repayment, by or on
behalf of Indemnitee to repay all Expense Advances if and to the
extent that it
shall ultimately be determined by a final, unappealable decision
rendered by a
court having jurisdiction over the parties and the subject matter
of the dispute
that Indemnitee is not entitled to be indemnified under this
Agreement or
otherwise; and (b) Indemnitee furnishing, upon request by the
Company and if
required unde
