EXHIBIT 10.25
INDEMNITY AGREEMENT
THIS AGREEMENT is entered into on the ________day of ___________ 2005.
BETWEEN:
ASPREVA PHARMACEUTICALS CORPORATION, a company incorporated under
the laws of British Columbia, and having its address at 2500 - 700
West Georgia Street, Vancouver, BC, V7Y 1B3
(the "Company")
AND:
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(the "Indemnitee")
WHEREAS, the Indemnitee has agreed to serve, at the request of the
Company, as a Director or Officer of the Company;
AND WHEREAS the Company wishes to indemnify the Indemnitee for
liabilities and expenses that may be incurred in connection with the
Indemnitee's services on behalf of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. AGREEMENT. This Agreement shall supersede and replace entirely the
indemnity agreement entered into between the Indemnitee and the Company
dated March 5, 2004.
2. DEFINITIONS. In this Agreement, except as otherwise expressly provided:
(a) the term "Associated Corporation" means a corporation or entity
referred to in paragraph (b)(ii) and (iii);
(b) the terms "Director" and "Officer" include:
(i) the Indemnitee's service as a director or officer of the
Company;
(ii) the Indemnitee's service as a director or officer of another
corporation:
(A) at a time when the corporation is or was an affiliate of
the Company as defined in the Business Corporations Act
(British Columbia), as amended from time to time, or any
successor legislation; or
(B) at the request of the Company; or
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(iii) at the request of the Company, the Indemnitee's service in a
position equivalent to that of a director or officer of a
partnership, trust, joint venture or other unincorporated
entity;
(c) the term "Eligible Penalty" means a judgment, penalty or fine
awarded or imposed in, or an amount paid in settlement of, an
eligible proceeding;
(d) the term "Eligible Proceeding" means a proceeding in which an
Indemnitee or any of the heirs and personal or other legal
representatives of the Indemnitee, by reason of the Indemnitee being
or having been a director or officer of, or holding or having held a
position equivalent to that of a director or officer of, the Company
or an Associated Corporation:
(i) is or may be joined as a party; or
(ii) is or may be liable for or in respect of a judgment, penalty
or fine in, or expenses related to, the proceeding;
(e) the term "Expenses" includes costs, charges and expenses, including
legal and other fees, but does not include judgment, penalties,
fines or amounts paid in settlement of a proceeding; and
(f) the term "Proceeding" includes any legal proceeding or investigative
action, whether current, threatened, pending or completed.
3. INDEMNITY OF DIRECTOR OR OFFICER. Subject only to the limitations set
forth in Section 4, the Company shall indemnify the Indemnitee against
each Eligible Penalty to which the Indemnitee is or may be liable and,
after the final disposition of an Eligible Proceeding, shall pay the
Expenses actually and reasonably incurred by the Indemnitee in respect of
that proceeding.
4. LIMITATIONS ON INDEMNITY. Notwithstanding any other provisions of this
Agreement, the Company shall not indemnify the Indemnitee against any
Eligible Penalty or pay any Expenses of the Indemnitee:
(a) if the indemnity or payment is made under an earlier agreement to
indemnify or pay Expenses and, at the time that the agreement to
indemnify or pay Expenses was made, the Company was prohibited from
giving the indemnity or paying the Expenses by its notice of
articles or articles;
(b) if the indemnity or payment is made otherwise than under an earlier
agreement to indemnify or pay Expenses and, at the time that the
indemnity or payment is made, the Company is prohibited from giving
the indemnity or paying the Expenses by its notice of articles or
articles;
(c) if, in relation to the subject matter of an Eligible Proceeding, the
Indemnitee did not act honestly and in good faith with a view to the
best interests of the Company or the Associated Corporation, as the
case may be;
(d) in the case of an Eligible Proceeding other than a civil proceeding,
if the Indemnitee did not have reasonable grounds for believing that
the Indemnitee's conduct in respect of which the proceeding was
brought was lawful;
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(e) if the Company is prohibited by applicable law from making such
payments;
(f) if such payments have been paid to, or on behalf of, the Indemnitee
under an insurance policy, except in respect of any excess beyond
the amount paid under such insurance;
(g) for which payments the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement; or
(h) resulting from a claim decided in an Eligible Proceeding adversely
to the Indemnitee based upon or attributable to the Indemnitee
gaining in fact any personal profit or advantage to which the
Indemnitee was not legally entitled, including any profits made from
the purchase or sale by the Indemnitee of securities of the Company.
5. MANDATORY PAYMENT OF EXPENSES. The Company shall, after the final
disposition of an Eligible Proceeding, pay the Expenses actually and
reasonably incurred by the Indemnitee in respect of that proceeding if the
Indemnitee:
(a) has not been reimbursed for those Expenses, and
(b) is wholly successful, on the merits or otherwise, in the outcome of
the Eligible Proceeding or is substantially successful on the merits
in the outcome of the Eligible Proceeding.
6. ADVANCE PAYMENT OF EXPENSES. The Company shall pay, as they are incurred
in advance of the final disposition of an Eligible Proceeding, Expenses
actually and reasonably incurred by an Indemnitee in respect of that
proceeding; provided, however, that Expenses of defence need not be paid
as incurred and in advance where a court of competent jurisdiction has
decided that the Indemnitee is not entitled to be indemnified pursuant to
this Agreement or otherwise. The Indemnitee hereby agrees and undertakes
to repay such amounts advanced if it is ultimately determined that the
Indemnitee is not entitled to be indemnified by the Company pursuant to
this Agreement or otherwise.
7. ENFORCEMENT. If a claim under this Agreement is not paid by the Company,
or on its behalf, within thirty days after a written claim has been
received by the Company, the Indemnitee may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim and if
successful in whole or in part, the Indemnitee shall also be entitled to
be paid the Expenses of prosecuting such claim.
8. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including
the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
9. NOTICE. The Indemnitee, as a condition precedent to the Indemnitee's right
to be indemnified under this Agreement, shall give to the Company notice
in writing as soon as practicable of any claim made against the Indemnitee
for which indemnity will or could be sought under this Agreement. Notice
to the Company shall be given at its principal office and shall be
directed to the Corporate Secretary (or such other address as the Company
shall designate in writing to the Indemnitee); notice shall be deemed
received if sent by prepaid mail properly addressed, the date
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of such notice being the date postmarked. In addition, the Indemnitee
shall give the Company such information and co-operation as it may
reasonably require.
10. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnitee's right to indemnification
under any provision of the notice of articles or articles of the Company
or under applicable corporate law.
11. CONTINUATION OF INDEMNIFICATION. The indemnification under this Agreement
shall continue as to the Indemnitee even though the Indemnitee may have
ceased to be a Director or Officer and shall enure to the benefit of the
heirs and personal representatives of the Indemnitee.
12. COVERAGE OF INDEMNIFICATION. The indemnification under this Agreement
shall cover the Indemnitee's service as a Director or Officer prior to or
after the date of the Agreement.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and the
federal laws of Canada applicable therein and the parties hereto attorn to
the exclusive jurisdiction of the provincial and federal courts of British
Columbia.
14. BENEFIT. This Agreement shall enure to the benefit of and be binding upon
the parties and their respective heirs, executors, administrators,
successors and assigns.
15. SEVERABILITY. If any provision of this Agreement is determined at any time
by a court of competent jurisdiction to be invalid, illegal or
unenforceable such provision or part thereof shall be severable from this
Agreement and the remainder of this Agreement will be construed as if such
invalid, illegal or unenforceable provision or part thereof had been
deleted herefrom.
16. FURTHER ASSURANCES. Each party agrees to take all such actions and execute
all such documents within its power as may be necessary or desirable to
carry out or implement and give full effect to the provisions and intent
of this Agreement.
17. TIME OF ESSENCE. Time is the essence of this Agreement and no extension of
time shall constitute a waiver of this provision.
18. WAIVERS. No waiver of, no consent with respect to, and no approval
required under any provision of this Agreement will be effective unless in
writing executed by the party against whom such waiver, consent or
approval is sought to be enforced, and then any such waiver, consent or
approval will be effective only in the specific instance and for the
specific purpose given.
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19. FACSIMILE AND COUNTERPARTS. This Agreement may be executed by facsimile
and in one or more counterparts, each of which when taken together will
constitute this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement.
ASPREVA PHARMACEUTICALS CORPORATION
Per: __________________________________
Authorized Signatory
Per: __________________________________
Authorized Signatory
SIGNED, SEALED and DELIVERED by )
_____________________________________ )
in the presence of: )
)
_____________________________________ ) ______________________________
Name ) -
)
_____________________________________ )
Address )
)
_____________________________________ )
Occupation )