INDEMNIFICATION AGREEMENT by and among THE PERSONS LISTED HEREIN and OXiGENE, INC. Dated as of [___________], 2008
Exhibit 10.1
by and among
THE PERSONS LISTED HEREIN
and
OXiGENE, INC.
Dated as of [___________], 2008
This INDEMNIFICATION AGREEMENT (this “Agreement”) is entered into as of
[___], 2008, among OXiGENE, Inc., a Delaware corporation (the “Company”), and
each of the Indemnitees (as defined below), each in his or her capacity as a member of the board of
directors of the Company.
PRELIMINARY STATEMENT
WHEREAS, the following persons (including any successors and subsequently elected directors
who shall execute counterpart signature pages in accordance with Section 5(c) hereof, the
“Directors” and the “Indemnitees”) have each agreed to serve as a member of the
board of directors of the Company: [___];
WHEREAS, the Company desires to indemnify and hold harmless the Indemnitees as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
(the “Parties”) agree as follows:
Section 1. Indemnification.
(a) The Company hereby agrees to and shall indemnify and hold harmless any Indemnitee who was
or is a party or is threatened to be made a party, by reason of the fact that the Indemnitee is or
was a Director, to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of the Company),
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Indemnitee in connection with such action, suit or
proceeding if 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, with respect to any criminal
action or proceeding, had no reasonable cause to believe the 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
the Indemnitee did not act in good faith and in a manner which the 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 the Indemnitee’s conduct was unlawful.
(b) The Company hereby agrees to and shall indemnify and hold harmless any Indemnitee who 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 to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a Director, against expenses (including attorneys’ fees) actually and
reasonably incurred by the Indemnitee in connection with the defense or settlement of such action
or suit if 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, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such 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, such
Indemnitee is fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former Director has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections (1)(a) or
(1)(b) hereof, or in defense of any claim, issue or matter therein, such Indemnitee shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
such Indemnitee in connection therewith.
(d) Any indemnification under Sections (1)(a) or (1)(b) hereof (unless ordered
by a court) shall be made by the Company only as authorized in the specific case upon a
determination that indemnification of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in such Sections (1)(a) and
(1)(b). Such determination shall be made (a) by a majority vote of the Directors who are
not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a
committee of Directors who are not parties to such action, suit or proceeding designated by
majority vote of such Directors, even though less than a quorum, or (c) if there are no Directors
who are not parties to such action, suit or proceeding, or if such Directors so direct, by
independent legal counsel in a written opinion, or (d) by the stockholders of the Company.
(e) Expenses (including reasonable attorneys’ fees) incurred by a present or former Indemnitee
in defending any civil, criminal, administrative or investigative action, suit or proceeding shall
be paid by the Company in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall
ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as
authorized in this Agreement.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other provisions of this Section 1 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled under any law,
by-law, agreement, vote of stockholders or disinterested Directors or otherwise and in any
capacity.
(g) Pursuant to the Stock and Warrant Purchase Agreement, the Company shall purchase and
maintain insurance on behalf of the Indemnitees against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Company would have the
power to indemnify such Indemnitee against such liability under the provisions of Section 145
of the General Corporation Law of the State of Delaware.
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(h) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 1 shall continue as to any Indemnitee who has ceased to be an Indemnitee of the
Company and shall inure to the benefit of the heirs, executors and administrators of such
Indemnitee.
Section 2. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware.
Section 3. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
Section 4. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the
matters covered hereby and supersedes all prior agreements and understandings with respect to such
matters between the Parties.
Section 5. Amendment; Counterparts; Additional Indemnitees.
(a) The terms of this Agreement shall not be altered, modified, amended, waived or
supplemented in any manner whatsoever except by a written instrument signed by each of the Parties.
(b) This Agreement may be executed in one or more counterparts, each of which, when executed,
shall be deemed an original but all of which, taken together, shall constitute one and the same
Agreement.
(c) Persons who become Indemnitees after the date hereof may become a party hereto by
executing a counterpart of this Agreement and upon the acknowledgement of such execution by the
Company.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the day and year first
above written.
| OXIGENE, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| DIRECTORS: |
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| By: | ||||
| Name: | ||||
| Title: | Director | |||
| By: | ||||
| Name: | ||||
| Title: | Director | |||
[Signature page to OXiGENE Director Indemnification Agreement]
