INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated as of the ____ day of _________, 199_,
is made by and between OXiGENE, Inc., a Delaware corporation having its
principal place of business in the State of New York (the "Company") and
_____________ (the "Indemnitee"), a resident of ________________.
WHEREAS, it is essential to the Company to retain and attract
the most capable persons available as officers, directors and key employees;
and
WHEREAS, Indemnitee is currently serving as _________________
(the "Position"); and
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
and officers of publicly-traded and other corporations, as a result of which
competent and experienced persons have become more reluctant to serve in such
positions, and as a result of which creative management and decision making has
been deterred; and
WHEREAS, the provision of indemnification will assist the
Company in attracting and retaining the most skilled and competent officers and
directors; and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to allow Indemnitee to continue
to provide service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the indemnification of the Indemnitee and for the
advancing of expenses to Indemnitee, in each case to the full extent permitted
by law and as set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee agree as follows:
1. Agreement to Serve. Indemnitee will continue to serve
faithfully and to the best of his ability in the Position, at the will of the
Company or pursuant to the terms of any separate agreement which may exist, so
long as he is duly elected or appointed and qualified or until such time as he
tenders his resignation in writing.
2. Right to Indemnification. In the event Indemnitee was or
is made a party or was or is threatened to be made a party to or was or is
involved or called as a witness in any action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes may lead to the institution of such action,
suit, proceeding or alternative dispute resolution mechanism, whether civil,
criminal, administrative or investigative, and any appeal therefrom
(hereinafter, collectively a "Proceeding"), by reason of the fact that he was,
is or had agreed to become a director, officer, employee, agent, fiduciary or
Delegate (as defined herein) of the Company, Indemnitee shall be indemnified
and held harmless by the Company to the fullest extent permitted under the
Delaware General Corporation Law (the "DGCL"), as the same now exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide
361386.1
broader indemnification rights than the DGCL permitted the Company to provide
prior to such amendment) against all expenses (including reasonable attorneys'
fees and all other costs, expenses, liabilities, obligations and disbursements
in connection with investigating, prosecuting, defending, preparing to
prosecute and defend, or being a witness or other participant in any
Proceeding), liabilities and losses (including, but not limited to, judgements;
fines; liabilities under ERISA for damages, excise taxes or penalties; damages,
fines or penalties arising out of violation of any law related to the
protection of the public health, welfare or the environment; and amounts paid
or to be paid in settlement) incurred or suffered by such person in connection
with any Proceeding (collectively, "Expenses"); provided, that except as
provided in Section 6 hereof, the Company shall indemnify any such person
seeking indemnity in connection with a Proceeding (or part thereof) initiated
by such person only if such Proceeding (or part thereof) was authorized by the
Board of Directors of the Company.
For purposes of this Agreement, a "Delegate" is any person
serving at the request of the Company as a director, officer, trustee
fiduciary, partner, employee or agent of an entity or enterprise other than the
Company (including, but not limited to, service with respect to employee
benefit plans and trusts).
3. Expenses. Expenses incurred by Indemnitee in defending or
otherwise being involved in a Proceeding shall be paid by the Company in
advance of the final disposition of such Proceeding, including any appeal
therefrom, upon receipt of an undertaking (the "Undertaking") by or on behalf
of Indemnitee to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Company; provided, that in connection
with a Proceeding (or part thereof) initiated by Indemnitee, except as provided
in Section 6 hereof, the Company shall pay such Expenses in advance of the
final disposition only if such Proceeding (or part thereof) was authorized by
the Board of Directors of the Company. The Undertaking shall provide that if
Indemnitee has commenced Proceedings in a court of competent jurisdiction to
secure a determination that he should be indemnified by the Company, he shall
not be obligated to repay the Company during the pendency of such Proceeding.
4. Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense or any Proceeding or in the defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee in connection therewith.
5. Notice. Indemnitee shall, as a condition precedent to
Indemnitee's right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any Proceeding for which
indemnification will or could be sought under this Agreement.
6. Protection of Rights. If a claim under Section 2 or any
agreement ("Other Agreement") providing indemnification to Indemnitee is not
promptly paid in full by the Company after a written claim has been received by
the Company or if Expenses pursuant to Section 3 or an Other Agreement have not
been promptly advanced after a
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written request for such advancement accompanied by the Undertaking has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim or the
advancement of Expenses. If successful, in whole or in part, in such suit
Indemnitee shall also be entitled to be paid the reasonable expense thereof. It
shall be a defense to any such action (other than an action brought to enforce
a claim for Expenses incurred in defending any Proceeding in advance of its
final disposition where the required Undertaking has been tendered to the
Company) that Indemnitee has not met the standards of conduct which make it
permissible under the DGCL for the Company to indemnify Indemnitee for the
amount claimed, but the burden of proving such defense shall be on the Company.
Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because he
has met the applicable standard of conduct required under the DGCL, nor the
actual determination by the Company (including its Board of Directors,
independent legal counsel, or its stockholders) that Indemnitee had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that Indemnitee had not met the applicable standard of conduct.
If a Change of Control has occurred, Indemnitee upon making a
claim under Section 2 or seeking to avoid repayment to the Company pursuant to
an Undertaking under Section 3 shall have (i) the right, but not the
obligation, to have a determination made by independent legal counsel as to
whether indemnification of the claimant is proper because he or she has met the
applicable standard of conduct required under the DGCL; and (ii) shall have the
right to select as independent legal counsel for such purpose any law firm as
designated (or within a category designated) for such purpose in a resolution
adopted by the Board of Directors of the Company prior to the Change of Control
and in full force and effect immediately prior to the Change of Control. If a
determination has been made in accordance with the preceding sentence, no
determination inconsistent therewith by other legal counsel, by the Board of
Directors, or by stockholders shall be of any force or effect, provided
however, that Indemnitee shall maintain all rights granted hereby to bring an
action as specified in the preceding paragraph.
A "Change of Control" shall be deemed to have occurred if (i)
individuals who as of June 15, 1996 constitute the Board of Directors of the
Company (the "Incumbent Directors") cease for any reason to constitute at least
a majority of the Board of Directors of the Company, or (ii) there is a merger,
consolidation or reorganization ("Merger") of the Company in which the Company
is not the surviving entity (the "Survivor") and at any time following such
Merger, Incumbent Directors do not constitute a majority of the Board of
Directors of the Survivor; provided that any individual who becomes a director
after June 14, 1996 whose election, or nomination for election by the Company's
stockholders was approved by a vote or written consent of at least two-thirds
of the directors then comprising the Incumbent Directors shall be deemed to be
an Incumbent Director, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest (as such term is used in Rule 14a-11 under the
Securities Exchange Act of 1934, as amended) relating to the election of the
directors of the Company.
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7. No Presumption. For purposes of this Agreement, the
termination of any Proceeding, by judgement, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court
has determined that indemnification or contribution is not permitted by
applicable law.
8. Non-Exclusivity of Rights. The rights conferred on
Indemnitee by this Agreement shall not be exclusive of any other right which
Indemnitee may have or hereafter acquire under any statute, provision of the
Company's Restated Certificate of Incorporation or By-Laws, other agreement,
vote of stockholders or directors or otherwise.
9. Selection of Counsel. In the event the Company shall be
obligated hereunder to pay the Expenses of any Proceeding, the Company shall be
entitled to assume the defense of such Proceeding with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same Proceeding; provided that, (i)
Indemnitee shall have the right to employ Indemnitee's counsel in any such
Proceeding at Indemnitee's expense and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there is a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (C) the Company
shall not continue to retain such counsel to defend such Proceeding, then the
fees and expenses of Indemnitee's counsel shall be at the expense of the
Company. The Company shall have the right to conduct such defense as it sees
fit in its sole discretion, including the right to settle any claim against
Indemnitee at the Company's expense without the consent of the Indemnitee.
10. Subrogation. In the event of any payment under this
Agreement to Indemnitee, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
11. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for Expenses
resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under applicable law; and
(b) Claims under Section 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
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12. Amended; Waiver. No provision of this Agreement may be
amended or modified except with the consent in writing of Indemnitee and the
Company, nor may any provision of this Agreement be waived except in writing by
the party granting such waiver. A waiver of any provision hereof shall not be
deemed a waiver of any other provision hereof. Failure of either of the parties
hereto to insist upon strict compliance with any provision hereof shall not be
deemed to be a waiver of such provision or any other provision hereof.
13. No Duplication of Payments. The Company shall not be
liable under this Agreement to make any payment in connection with any
Proceeding to the extent Indemnitee has otherwise actually received payment
under any insurance policy, statute, provision of the Company's Restated
Certificate of Incorporation or By-Laws, other agreement, vote of stockholders
or directors or otherwise of the amounts otherwise indemnifiable.
14. Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Proceeding, but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is
entitled.
15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns (including, without limitation, any successor
by purchase, merger, consolidation, reorganization or otherwise to all of
substantially all of the business and/or assets of the Company) and their
spouses, heirs, and personal and legal representatives.
16. Term. The provisions of this Agreement shall be
applicable to all Proceedings, regardless of when commenced and regardless of
whether relating to events, acts or omissions occurring before, on or after the
date on which this Agreement becomes effective. This Agreement shall continue
in effect regardless of whether Indemnitee continues to serve in the Position;
provided, however, that notwithstanding any other provision hereof, the Company
shall have no obligations hereunder with respect to liability, losses and
Expenses of any Proceeding to the extent that such liability, losses and
Expenses relate to conduct of the Indemnitee which occurs after Indemnitee no
longer holds the Position nor a position of a corporate officer or director of
the Company.
17. Severability. If this Agreement or any portion hereof
shall be invalidated or held to be unenforceable, such invalidity or
unenforceability shall not affect the other provisions hereof, and this
Agreement shall be deemed to be modified to the minimum extent necessary to
avoid such invalidity or unenforceability, and as so modified this Agreement
and the remaining provisions hereof shall remain valid and enforceable in
accordance with their terms to the fullest extent permitted by law.
18. Notice. All notices and other communications hereunder
shall be in writing and delivered by hand or by first class registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the Indemnitee:
______________________
______________________
______________________
______________________
If to the Company:
OXiGENE, Inc.
110 East 59th Street
New York, NY 10022
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
19. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the state of Delaware,
without regard to the principles thereof respecting conflicts of law.
20. Captions. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
21. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument originals.
IN WITNESS WHEREOF, Indemnitee and the Company, pursuant to
the authorization of its Board of Directors, execute this Agreement on the date
stated below.
OXiGENE, Inc.
By:_____________________________________
Title:
Date:
INDEMNITEE
________________________________________
Name:
Date:
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