Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT dated this ____ day of April 2005, is made by and
between EpiCept Corporation, a Delaware corporation (the "Company"), and
_____________, a resident of _________ (the "Indemnitee").
RECITALS:
A. The Company's Amended and Restated Certificate of Incorporation of the
Company (the "Certificate") provides the Company's directors and officers
with certain rights to indemnification and advance payment of expenses.
B. In order to provide such rights pursuant to express contract rights
intended to be enforceable irrespective of, among other things, any
amendment to the Company's Certificate or the Company's Amended and
Restated Bylaws (the "Bylaws"), any change in the composition of the
Company's Board of Directors, and any change in control or business
combination transaction relating to the Company, the Company wishes to
contractually provide in this Agreement for the indemnification of, and
the advance payment of expenses to, the Indemnitee as set forth in this
Agreement.
AGREEMENT:
NOW, THEREFORE, for valuable consideration, including without limitation the
agreement by the Indemnitee to serve as a director or an officer of the Company,
the parties agree for themselves, their successors, and assigns, as follows:
1. INDEMNIFICATION. The Company shall, to the fullest extent permitted
under the Delaware General Corporation Law (the "DGCL"), and except as
set forth below, indemnify, hold harmless and, upon request, advance
expenses to, the Indemnitee (and the heirs, executors or administrators
of such Indemnitee) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he or she is or was, or has agreed to
become, a director or officer of the Company, or is or was serving, or
has agreed to serve, at the request of the Company, as a director,
officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise,
including any employee benefit plan, or by reason of any action alleged
to have been taken or omitted in such capacity, against all liability
and loss suffered and expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him or her or on his or her behalf in connection with such action,
suit or proceeding and any appeal therefrom, if he or she acted in good
faith and in a manner he or she 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 his
or her
conduct was unlawful. Notwithstanding anything to the contrary in this
Section 1, the Company shall not indemnify an Indemnitee seeking
indemnification in connection with any action, suit, proceeding, claim or
counterclaim, or part thereof, initiated by the Indemnitee unless the
initiation thereof was authorized in the specific case by the Board of
Directors of the Company.
2. ADVANCE PAYMENT OF EXPENSES.
(a) The Company shall, to the fullest extent not prohibited by
applicable law, advance payment of expenses (including attorneys'
fees) incurred by any Indemnitee in defending any proceeding in
advance of the final disposition of any such proceeding. In
consideration of the payment of such expenses, the Indemnitee
hereby undertakes and agrees to repay to the Company any amount
so paid by the Company in the event that it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified
by the Company against such expenses in accordance with the terms
of this Agreement
(b) Within ten business days after any written request for payment by
the Indemnitee, the Company shall, in accordance with such
request (but without duplication): (1) pay such expenses on
behalf of the Indemnitee; (2) advance to the Indemnitee funds in
an amount sufficient to pay such expenses; or (3) reimburse the
Indemnitee for such expenses. The Indemnitee shall repay,
without interest, any amounts actually advanced to the Indemnitee
by the Company that, at the final disposition of the proceeding
to which the advance was related, were in excess of the amounts
paid or payable by the Indemnitee in respect of expenses relating
to, arising out of, or resulting from such proceeding.
3. PROCEDURE FOR NOTIFICATION. To obtain indemnification under this
Agreement, the Indemnitee shall submit to the Company a written request
therefor, including a brief description (based upon information then
available to the Indemnitee) of the applicable liability and expenses.
If, at the time of the receipt of such request, the Company has
directors' and officers' liability insurance in effect under which
coverage for such liability and expenses is potentially available, the
Company shall give prompt written notice of such liability and expenses
to the applicable insurers in accordance with the procedures set forth
in the applicable policies. The Company shall provide to the
Indemnitee a copy of such notice delivered to the applicable insurers.
The failure by the Indemnitee to timely notify the Company of any
liability or expenses shall not relieve the Company from any liability
hereunder unless, and only to the extent that, the Company did not
otherwise learn of such liability or expenses and such failure results
in forfeiture by the Company of substantial defenses, rights, or
insurance coverage.
4. INSURANCE. For the duration of the Indemnitee's service as a director
or officer of the Company and thereafter for so long as the Indemnitee
shall be subject to any
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pending or possible proceeding, the Company shall use commercially
reasonable efforts (taking into account the scope and amount of coverage
available relative to the cost thereof) to cause to be maintained in
effect policies of directors' and officers' liability insurance providing
coverage for directors and officers of the Company that is at least
substantially comparable in scope and amount to that provided by the
Company's policies of directors' and officers' liability insurance in
effect as of the date of this Agreement.
5. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the related
rights of recovery of the Indemnitee against other persons or entities
(other than the Indemnitee's successors). The Indemnitee shall execute
all papers reasonably required to evidence such rights (all of the
Indemnitee's reasonable expenses, including attorneys' fees and
charges, related thereto to be reimbursed by or, at the option of the
Indemnitee, advanced by the Company).
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment to the Indemnitee in respect of any
liability or expenses to the extent the Indemnitee has otherwise actually
received payment under the Certificate, the Bylaws, or any law, statute,
rule, agreement, insurance policy, or otherwise in respect of such
liability or expenses otherwise indemnifiable hereunder.
7. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder will be in
addition to and not exclusive of any other rights provided under the
Certificate, the Bylaws, or any law, statute, rule, agreement,
insurance policy, or otherwise. No amendment, termination, or repeal
of any provision of the Certificate, the Bylaws, or any provision of
any applicable law, statute, or rule subsequent to the date of this
Agreement shall eliminate or diminish in any way the rights of the
Indemnitee arising under this Agreement, whether the proceeding giving
rise to the necessity for such indemnification arose before or after
any such amendment, termination, or repeal.
8. SUCCESSORS AND BINDING AGREEMENT.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization, or
otherwise) to all or substantially all of the business or assets
of the Company, by agreement in form and substance satisfactory
to the Indemnitee and the Indemnitee's counsel, to expressly
assume and agree to perform this Agreement in the same manner and
to the same extent the Company would be required to perform if no
such succession had taken place. This Agreement shall be binding
upon and inure to the benefit of the Company and any successor to
the Company, including without limitation any person acquiring
directly or indirectly all or substantially all of the business
or assets of the Company whether by purchase, merger,
consolidation, reorganization, or
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otherwise (and such successor will thereafter be deemed the
"Company" for purposes of this Agreement), but shall not otherwise
be assignable or delegatable by the Company.
(b) The rights of the Indemnitee contained in this Agreement shall inure
to the benefit of and be enforceable by the Indemnitee and the
Indemnitee's personal or legal representatives, executors,
administrators, heirs, distributees, legatees, and other successors.
(c) Except as provided in this Section 8, this Agreement and the rights
and obligations provided herein may not be assigned, transferred, or
delegated.
9. NOTICES. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests, or approvals,
required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof
electronically confirmed), or five business days after having been
mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or one business day after having been sent
for next-day delivery by a nationally recognized overnight courier
service, addressed to the Company (to the attention of the Secretary of
the Company) and to the Indemnitee at the applicable address shown on
the signature page hereto, or to such other address as any party may
have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon
receipt.
10. AMENDMENT AND MODIFICATION. This Agreement may not be modified,
changed, or amended, and any obligations under this Agreement may not
be waived, except by written agreement properly executed by all the
parties hereto.
11. SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event
that any provision of this Agreement would be held in any jurisdiction
to be invalid, prohibited, or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited, or
unenforceable in such jurisdiction, it shall, as to such jurisdiction,
be so narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
12. COUNTERPARTS AND FACSIMILE. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. This
Agreement, and any amendments hereto, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all
manner and respects as an original and shall be
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considered to have the same binding legal effects as if it were the
original signed version thereof delivered in person.
13. GOVERNING LAW. Any and all disputes between the parties in any way related
to this Agreement, including all matters of construction, validity, and
performance of the Agreement, will be governed by and construed in
accordance with the substantive laws of the State of Delaware, without
giving effect to the conflict of laws rules thereof.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the matters addressed herein, and
neither of the parties will be bound by any prior oral agreement,
condition, stipulation, representation, or understanding.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first indicated above.
EPICEPT CORPORATION
000 XXXXXX XXXXXX
XXXXXXXXX XXXXXX, XXX XXXXXX 00000
By:
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Name:
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Title:
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INDEMNITEE:
ADDRESS:
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Name:
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