Exhibit 10.45


 


INDEMNIFICATION
AGREEMENT


 


THIS
INDEMNIFICATION AGREEMENT (the “Agreement”)
is made and entered into as of _______________, 200__ between PharmAthene, Inc.,
a Delaware corporation (including its predecessors, successors and assigns, the
“Company”), and ____________________ (“Indemnitee”).


 


WITNESSETH THAT:


 


WHEREAS, highly competent
persons have become more reluctant to serve corporations as directors or in
other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf
of the corporation;


 


WHEREAS, the Board of
Directors of the Company (the “Board”)
has determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities.  Although the
furnishing of such insurance has been a customary and widespread practice among
United States-based corporations and other business enterprises, the Company
believes that, given current market conditions and trends, such insurance may
be available to it in the future only at higher premiums and with more
exclusions.  At the same time, directors,
officers, and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself.  Indemnitee may also be entitled to
indemnification pursuant to the General Corporation Law of the State of
Delaware (“DGCL”).  The By-laws and the DGCL expressly provide
that the indemnification provisions set forth therein are not exclusive, and
thereby contemplate that contracts may be entered into between the Company and
members of the board of directors, officers and other persons with respect to
indemnification;


 


WHEREAS, the
uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons;


 


WHEREAS, the Board has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;


 


WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law so that they will serve or continue
to serve the Company free from undue concern that they will not be so
indemnified;


 


WHEREAS, this Agreement
is a supplement to and in furtherance of the By-laws of the Company and any
resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;


 


WHEREAS, Indemnitee does
not regard the protection available under the Company’s


 

















 


By-laws and insurance as
adequate in the present circumstances, and may not be willing to serve as an
officer or director without adequate protection, and the Company desires
Indemnitee to serve in such capacity. 
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he be
so indemnified; and


 


WHEREAS, Indemnitee has
certain rights to indemnification and/or insurance provided by [_______________________]
(together with its related persons, “[___________]”) which Indemnitee and [___________]  intend to be secondary to the primary
obligation of the Company to indemnify Indemnitee as provided herein, with the
Company’s acknowledgement and agreement to the foregoing being a material
condition to Indemnitee’s willingness to serve on the Board.


 


NOW, THEREFORE, in
consideration of Indemnitee’s agreement to serve as an director after the date
hereof, the parties hereto agree as follows:


 


1.                                       Indemnity
of Indemnitee.  The Company hereby
agrees to hold harmless and indemnify Indemnitee to the fullest extent
permitted by law, as such may be amended from time to time.  In furtherance of the foregoing
indemnification, and without limiting the generality thereof:


 


(a)                                  Proceedings
Other Than Proceedings by or in the Right of the Company.  Indemnitee shall be entitled to the rights of
indemnification provided in this Section l(a) if, by reason of
his Corporate Status (as hereinafter defined), the Indemnitee is, or is
threatened to be made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right of the Company.  Pursuant to this Section 1(a),
Indemnitee shall be indemnified against all Expenses (as hereinafter defined),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him, or on his behalf, in connection with such Proceeding
or any claim, issue or matter therein, 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 Proceeding,
had no reasonable cause to believe the Indemnitee’s conduct was unlawful.


 


(b)                                 Proceedings
by or in the Right of the Company. 
Indemnitee shall be entitled to the rights of indemnification provided
in this Section 1(b) if, by reason of his Corporate Status,
the Indemnitee is, or is threatened to be made, a party to or participant in
any Proceeding brought by or in the right of the Company.  Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with
such 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; provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such indemnification may
be made.


 


(c)                                  Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a party to and is successful, on the merits or otherwise, in any Proceeding, he
shall be indemnified to the maximum extent permitted by law,


 


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as such may be
amended from time to time, against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.  If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter.  For purposes of
this Section and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.


 


2.                                       Additional
Indemnity.  In addition to, and
without regard to any limitations on, the indemnification provided for in Section 1
of this Agreement, the Company shall and hereby does indemnify and hold
harmless Indemnitee against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf if, by reason of his Corporate Status, he is, or is threatened to be
made, a party to or participant in any Proceeding (including a Proceeding by or
in the right of the Company), including, without limitation, all liability
arising out of the negligence or active or passive wrongdoing of
Indemnitee.  The only limitation that
shall exist upon the Company’s obligations pursuant to this Agreement shall be
that the Company shall not be obligated to make any payment to Indemnitee that
is finally determined (under the procedures, and subject to the presumptions,
set forth in Sections 6 and 7 hereof) to be unlawful.


 


3.                                       Contribution.


 


(a)                                  Whether
or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), the Company shall pay, in the
first instance, the entire amount of any judgment or settlement of such action,
suit or proceeding without requiring Indemnitee to contribute to such payment
and the Company hereby waives and relinquishes any right of contribution it may
have against Indemnitee.  The Company
shall not enter into any settlement of any action, suit or proceeding in which
the Company is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding) unless such settlement provides for a full and
final release of all claims asserted against Indemnitee.


 


(b)                                 Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be
required to pay all or any portion of any judgment or settlement in any
threatened, pending or completed action, suit or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), the Company shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction from which
such action, suit or proceeding arose; provided, however, that the proportion determined
on the basis of relative benefit may, to the extent necessary to conform to
law, be further adjusted by reference to the relative fault of the Company and
all officers, directors or employees of the Company other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand, in
connection with the events


 


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that resulted in
such expenses, judgments, fines or settlement amounts, as well as any other
equitable considerations which the Law may require to be considered.  The relative fault of the Company and all
officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.


 


(c)                                  The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by officers, directors or employees
of the Company, other than Indemnitee, who may be jointly liable with
Indemnitee.


 


(d)                                 To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute
to the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).


 


4.                                       Indemnification
for Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a witness, or is made
(or asked to) respond to discovery requests, in any Proceeding to which
Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.


 


5.                                       Advancement
of Expenses.  Notwithstanding any other
provision of this Agreement, the Company shall advance all Expenses incurred by
or on behalf of Indemnitee in connection with any Proceeding by reason of
Indemnitee’s Corporate Status within thirty (30) days after the receipt by the
Company of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such
Proceeding.  Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and shall include
or be preceded or accompanied by an undertaking by or on behalf of Indemnitee
to repay any Expenses advanced if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.  Any advances and undertakings to repay
pursuant to this Section 5 shall be unsecured and interest free.


 


6.                                       Procedures
and Presumptions for Determination of Entitlement to Indemnification.  It is the intent of this Agreement to secure
for Indemnitee rights of indemnity that are as favorable as may be permitted
under the Delaware General Corporation Law and public policy of the State of
Delaware.  Accordingly, the parties agree
that the following procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification under this
Agreement:


 


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(a)                                  To
obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification.  The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested
indemnification.  Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to the Company,
or to provide such a request in a timely fashion, shall not relieve the Company
of any liability that it may have to Indemnitee unless, and to the extent that,
such failure actually and materially prejudices the interests of the Company.


 


(b)                                 Upon
written request by Indemnitee for indemnification pursuant to the first
sentence of Section 6(a) hereof, a determination, if required
by applicable law, with respect to Indemnitee’s entitlement thereto shall be
made in the specific case by one of the following four methods, which shall be
at the election of the board:  (1) by
a majority vote of the disinterested directors, even though less than a quorum,
(2) by a committee of disinterested directors designated by a majority
vote of the disinterested directors, even though less than a quorum, (3) if
there are no disinterested directors or if the disinterested directors so
direct, by independent legal counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to the Indemnitee, or (4) if
so directed by the Board of Directors, by the stockholders of the Company.  For purposes hereof, disinterested directors
are those members of the board of directors of the Company who are not parties
to the action, suit or proceeding in respect of which indemnification is sought
by Indemnitee.


 


(c)                                  If
the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the
Independent Counsel shall be selected as provided in this Section 6(c).  The Independent Counsel shall be selected by
the Board of Directors.  Indemnitee may,
within 10 days after such written notice of selection shall have been given,
deliver to the Company, as the case may be, a written objection to such
selection; provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements
of “Independent Counsel” as
defined in Section 13 of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion.  Absent a proper and timely objection, the
person so selected shall act as Independent Counsel.  If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. 
If, within 20 days after submission by Indemnitee of a written request
for indemnification pursuant to Section 6(a) hereof, no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Indemnitee to the Company’s
selection of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof.  The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel
in connection with acting pursuant to Section 6(b) hereof, and
the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which
such Independent Counsel was selected or appointed.


 


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(d)                                 In
making a determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such determination shall
presume that Indemnitee is entitled to indemnification under this
Agreement.  Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.  Neither
the failure of the Company (including by its directors or independent legal
counsel) to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by its directors or independent legal
counsel) that Indemnitee has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct.


 


(e)                                  Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise (as hereinafter defined) in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or records given
or reports made to the Enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the
Enterprise.  In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.  Whether or not the foregoing provisions of
this Section 6(e) are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company.  Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.


 


(f)                                    If
the person, persons or entity empowered or selected under Section 6
to determine whether Indemnitee is entitled to indemnification shall not have
made a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional thirty (30) days, if the person,
persons or entity making such determination with respect to entitlement to
indemnification in good faith requires such additional time to obtain or
evaluate documentation and/or information relating thereto; and provided,
further, that the foregoing provisions of this Section 6(g) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 6(b) of this Agreement
and if (A) within fifteen (15) days after receipt by the Company of the
request for such determination, the Board of Directors or the Disinterested
Directors, if appropriate, resolve to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within fifteen
(15) days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so
called and such determination is made thereat.


 


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(g)                                 Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination.  Any
Independent Counsel, member of the Board of Directors or stockholder of the
Company shall act reasonably and in good faith in making a determination
regarding the Indemnitee’s entitlement to indemnification under this
Agreement.  Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.


 


(h)                                 The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. 
In the event that any action, claim or proceeding to which Indemnitee is
a party is resolved in any manner other than by adverse judgment against
Indemnitee (including, without limitation, settlement of such action, claim or
proceeding with or without payment of money or other consideration) it shall be
presumed that Indemnitee has been successful on the merits or otherwise in such
action, suit or proceeding.  Anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion by clear and convincing evidence.


 


(i)                                     The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.


 


7.                                       Remedies
of Indemnitee.


 


(a)                                  In
the event that (i) a determination is made pursuant to Section 6
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5
of this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(b) of this
Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to
this Agreement within ten (10) days after receipt by the Company of a
written request therefor or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee
is entitled to indemnification or such determination is deemed to have been
made pursuant to Section 6 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware,
or in any other court of competent jurisdiction, of Indemnitee’s entitlement to
such indemnification.  Indemnitee shall
commence such proceeding seeking an adjudication within 180 days following the
date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 7(a). 
The Company shall not oppose Indemnitee’s right to seek any such
adjudication.


 


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(b)                                 In
the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 7 shall be conducted
in all respects as a de novo trial on the merits, and Indemnitee shall not be
prejudiced by reason of the adverse determination under Section 6(b).


 


(c)                                  If
a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding commenced
pursuant to this Section 7, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee’s misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such
indemnification under applicable law.


 


(d)                                 In
the event that Indemnitee, pursuant to this Section 7, seeks a
judicial adjudication of his rights under, or to recover damages for breach of,
this Agreement, or to recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall pay on his
behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 13 of this Agreement) actually
and reasonably incurred by him in such judicial adjudication, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of expenses or insurance recovery.


 


(e)                                  The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in
any such court that the Company is bound by all the provisions of this
Agreement.  The Company shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after receipt by the Company of a written request
therefore) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advance of Expenses from the
Company under this Agreement or under any directors’ and officers’ liability insurance
policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advancement of Expenses
or insurance recovery, as the case may be.


 


(f)                                    Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.


 


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8.                                       Non-Exclusivity;
Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.


 


(a)                                  The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the amended and restated certificate of incorporation of the
Company, the Bylaws, any agreement, a vote of stockholders, a resolution of
directors or otherwise.  No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit
or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal.  To
the extent that a change in the Delaware General Corporation Law, whether by
statute or judicial decision, permits greater indemnification than would be
afforded currently under  the Bylaws and
this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.  No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.


 


(b)                                 To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or
fiduciaries of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise that such person
serves at the request of the Company, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any director, officer, employee, agent or fiduciary
under such policy or policies.  If, at
the time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.


 


(c)                                  The
Company hereby acknowledges that Indemnitee has certain rights to
indemnification, advancement of expenses and/or insurance provided by [_________]
and certain of its affiliates (collectively, the “Fund
Indemnitors”).  The Company
hereby agrees (i) that it is the indemnitor of first resort (i.e., its
obligations to Indemnitee are primary and any obligation of the Fund
Indemnitors to advance expenses or to provide indemnification for the same
expenses or liabilities incurred by Indemnitee are secondary), (ii) that
it shall be required to advance the full amount of expenses incurred by
Indemnitee and shall be liable for the full amount of all Expenses, judgments,
penalties, fines and amounts paid in settlement to the extent legally permitted
and as required by the terms of this Agreement and the amended and restated
certificate of incorporation of the Company or Bylaws of the Company (or any
other agreement between the Company and Indemnitee), without regard to any
rights Indemnitee may have against the Fund Indemnitors, and, (iii)  that
it irrevocably waives, relinquishes and releases the Fund Indemnitors from any
and all claims against the Fund Indemnitors for contribution, subrogation or
any other recovery of any kind in respect thereof.  The Company further agrees that no
advancement or payment by the Fund Indemnitors on behalf of Indemnitee with
respect to any claim for which Indemnitee has sought indemnification from the
Company shall affect the


 


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foregoing and the
Fund Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of
Indemnitee against the Company.  The
Company and Indemnitee agree that the Fund Indemnitors are express third party
beneficiaries of the terms of this Section 8(c).


 


(d)                                 Except
as provided in paragraph (c) above, in the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee (other than against the Fund
Indemnitors), who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.


 


(e)                                  Except
as provided in paragraph (c) above, the Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.


 


(f)                                    Except
as provided in paragraph (c) above, the Company’s obligation to indemnify
or advance Expenses hereunder to Indemnitee who is or was serving at the
request of the Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.


 


9.                                       Exception
to Right of Indemnification. Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:


 


(a)                                  for
which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any
excess beyond the amount paid under any insurance policy or other indemnity
provision, provided, that the foregoing shall not affect the rights of
Indemnitee or the Fund Indemnitors set forth in Section 8(c) above;
or


 


(b)                                 for
an accounting of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law; or


 


(c)                                  in
connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
by Indemnitee against the Company or its directors, officers, employees or
other indemnitees, unless (i) the Board of Directors of the Company
authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law.


 


10.                                 Duration
of Agreement.  All agreements and
obligations of the Company contained herein shall continue during the period
Indemnitee is an officer or director of the


 


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Company (or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise) and shall continue thereafter so with respect to any Proceeding (or
any proceeding commenced under Section 7 hereof) by reason of his
Corporate Status, whether or not he is acting or serving in any such capacity
at the time any liability or expense is incurred for which indemnification can
be provided under this Agreement.  This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives.


 


11.                                 Security.  To the extent requested by Indemnitee and
approved by the Board of Directors of the Company, the Company may at any time
and from time to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral.  Any such security,
once provided to Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.


 


12.                                 Enforcement.


 


(a)                                  The
Company expressly confirms and agrees that it has entered into this Agreement
and assumes the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer or director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as an officer or
director of the Company.


 


(b)                                 This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.


 


13.                                 Definitions.  For purposes of this Agreement:


 


(a)                                  “Corporate Status” describes the status of a
person who is or was a director (or a person entitled to designate a director),
officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving at the express written request of
the Company.


 


(b)                                 “Disinterested Director” means a director of
the Company who is not and was not a party to the Proceeding in respect of
which indemnification is sought by Indemnitee.


 


(c)                                  “Enterprise” means the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that Indemnitee is or was serving at the express written request of
the Company as a director, officer, employee, agent or fiduciary.


 


(d)                                 “Expenses” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs,


 


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printing and
binding costs, telephone charges, postage, delivery service fees and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
participating, or being or preparing to be a witness in a Proceeding, or
responding to, or objecting to, a request to provide discovery in any
Proceeding.  Expenses also shall include
Expenses incurred in connection with any appeal resulting from any Proceeding and
any federal, state, local or foreign taxes imposed on the Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement,
including without limitation the premium, security for, and other costs
relating to any cost bond, supersede as bond, or other appeal bond or its
equivalent.  Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.


 


(e)                                  “Independent Counsel” means a law firm, or a
member of a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained to
represent:  (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. 
The Company agrees to pay the reasonable fees of the Independent Counsel
referred to above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.


 


(f)                                    “Proceeding” includes any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was an officer or
director of the Company (or designated a director), by reason of any action
taken by him or of any inaction on his part while acting as an officer or
director of the Company (or equity holder of the Company), or by reason of the
fact that he is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation, partnership,
joint venture, trust or other Enterprise; in each case whether or not he is
acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement;
including one pending on or before the date of this Agreement, but excluding
one initiated by an Indemnitee pursuant to Section 7 of this
Agreement to enforce his rights under this Agreement.


 


14.                                 Severability.  The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.  Without limiting the
generality of the foregoing, this Agreement is intended to confer upon
Indemnitee indemnification rights to the fullest extent permitted by applicable
laws.  In the event any provision hereof
conflicts with any applicable law, such provision shall be deemed modified,
consistent with the aforementioned intent, to the extent necessary to resolve
such conflict.


 


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15.                                 Modification
and Waiver.  No supplement,
modification, termination or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.


 


16.                                 Notice
By Indemnitee.  Indemnitee agrees
promptly to notify the Company in writing upon being served with or otherwise
receiving any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder.  The
failure to so notify the Company shall not relieve the Company of any
obligation which it may have to Indemnitee under this Agreement or otherwise
unless and only to the extent that such failure or delay materially prejudices
the Company.


 


17.                                 Notices.  All notices and other communications given or
made pursuant to this Agreement shall be in writing and shall be deemed
effectively given:  (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All communications shall be sent:


 


(a)                                  To
Indemnitee at the address set forth below Indemnitee signature hereto.


 


(b)                                 To
the Company at:


 


PharmAthene, Inc.


One Park Place


Suite #450


Annapolis, MD
21401


Attention: Chief
Executive Officer


 


or to such other
address as may have been furnished to Indemnitee by the Company or to the
Company by Indemnitee, as the case may be.


 


18.                                 Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.  This Agreement may also be executed and
delivered by facsimile signature and in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


19.                                 Headings.  The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.


 


20.                                 Governing
Law and Consent to Jurisdiction. 
This Agreement and the legal relations among the parties shall be governed
by, and construed and enforced in accordance


 


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with, the laws of
the State of Delaware, without regard to its conflict of laws rules. The
Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court of the State of Delaware
(the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of
or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.


 


SIGNATURE PAGE TO FOLLOW


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Indemnification Agreement on and
as of the day and year first above written.


 


 


	
   

  	
  PHARMATHENE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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