This Indemnification Agreement, dated as of [____________], is made by and between Antares Pharma, Inc., a Delaware corporation (the Company), and [________________] (the Indemnitee) an agent (as hereinafter defined) of the Company.
R E C I T A L S
A. The Company recognizes that competent and experienced persons are sometimes reluctant to serve as directors or officers of corporations unless they are protected by comprehensive liability insurance or indemnification, or both, due to increased exposure to litigation costs and risks resulting from their service to such corporations, and due to the fact that the exposure frequently bears no reasonable relationship to the compensation of such directors and officers;
B. The statutes and judicial decisions regarding the duties of directors and officers are often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors and officers with adequate, reliable knowledge of legal risks to which they are exposed or information regarding the proper course of action to take;
C. The Company and the Indemnitee recognize that because plaintiffs often seek damages in such large amounts and the costs of litigation may be onerous (whether or not the case is meritorious), the defense and/or settlement of such litigation is often beyond the personal resources of directors and officers;
D. The Company believes that it is unfair for its directors and officers to assume the risk of personal judgments and other expenses which may occur in cases in which the director or officer received no personal profit and in cases where the director or officer was not culpable;
E. The Company believes that the interests of the Company and its stockholders would best be served by a combination of the Companys liability insurance and the indemnification by the Company of its directors and officers;
F. In accordance with the provisions of Delaware General Corporation Law, Section 145, the Company is required to indemnify the Indemnitee;
G. The Companys Board of Directors has determined that contractual indemnification as set forth herein is not only reasonable and prudent but necessary to promote the best interests of the Company and its stockholders;
H. The Company desires and has requested the Indemnitee to serve or continue to serve as a director or officer of the Company free from undue concern for claims for damages arising out of or related to such services to the Company; and
I. The Indemnitee is willing to serve, or to continue to serve, the Company, only on the condition that he is furnished the indemnity provided for herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:
(a) Agent. For purposes of this Agreement, agent of the Company means any person who is or was a director, officer, manager, employee or other agent of the Company or a subsidiary of the Company; or is or was serving at the request of the Company or a subsidiary of the Company as a director, officer, manager, employee or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust or other enterprise; or was a director, officer, manager, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Company or a subsidiary of the Company; or was a director, officer, manager, employee or agent of another foreign or
domestic corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of such predecessor corporation.
(b) Expenses. For purposes of this Agreement, expenses means any and all costs and expenses, including attorneys fees, reasonably related to, or incurred by the director in connection with a proceeding.
(c) Liability. For the purpose of this Agreement, Liability means any obligation to pay a judgment, settlement, penalty, fine or excise tax assessed with respect to an employee benefit plan, or expenses incurred with respect to a proceeding and includes obligations and expenses that have not yet been paid, but that have been or may be incurred;
(d) Proceedings. For the purpose of this Agreement, proceeding means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal.
(e) Subsidiary. For purposes of this Agreement, subsidiary means any foreign or domestic corporation, partnership, limited liability company, joint venture, trust or other enterprise of which more than 50% of the outstanding voting securities (or comparable interests) are owned directly or indirectly by the Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
(f) Other Enterprise. For purposes of this Agreement, other enterprise shall include employee benefit plans; references to fines shall include any excise tax assessed with respect to any employee benefit plans; references to serving at the request of the Company shall include any service as a director, officer, manager, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, manager, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries; if the Indemnitee acts in good faith and in a manner he reasonably believes to be in the best interest of the participants and beneficiaries of an employee benefit plan, he shall be deemed to have acted in a manner not opposed to the best interests of the Company as referred to in this Agreement.