Exhibit 10.1


 


INDEMNIFICATION AGREEMENT


 


This
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into
this          day of                           ,
2009 (the “Effective Date”) by and between Inovio Biomedical Corporation, a
Delaware corporation (the “Company”), and [                    ]
(the “Indemnitee”).


 


WHEREAS,
the Company believes it is essential to retain and attract qualified directors
and officers;


 


WHEREAS,
the Indemnitee is a director and/or officer of the Company;


 


WHEREAS,
both the Company and the Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of public
companies;


 


WHEREAS,
the Company’s Amended and Restated Certificate of Incorporation (the “Certificate
of Incorporation”) and Bylaws (the “Bylaws”) require the Company to
indemnify and advance expenses to its directors and officers to the extent
permitted by the DGCL (as hereinafter defined);


 


[WHEREAS,
the Indemnitee has been serving and intends to continue serving as a director
and/or officer of the Company in part in reliance on the Certificate of
Incorporation and Bylaws(1);] and


 


WHEREAS,
in recognition of the Indemnitee’s need for (i) substantial protection
against personal liability based on the Indemnitee’s reliance on the
Certificate of Incorporation and Bylaws, (ii) specific contractual
assurance that the protection promised by the Certificate of Incorporation and
Bylaws will be available to the Indemnitee, regardless of, among other things,
any amendment to or revocation of the Bylaws or any change in the composition
of the Company’s Board of Directors (the “Board”) or acquisition
transaction relating to the Company, and (iii) an inducement to continue
to provide effective services to the Company as a director and/or officer
thereof, the Company wishes to provide for the indemnification of the
Indemnitee and to advance expenses to the Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained by the Company, to provide for the continued coverage
of the Indemnitee under the Company’s directors’ and officers’ liability
insurance policies;


 


[WHEREAS,
the Indemnitee is relying upon the rights
afforded under this Agreement in accepting Indemnitee’s position as a director,
officer or employee of the Company;](2)


 


NOW,
THEREFORE, in consideration of the premises contained herein and of the
Indemnitee continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties
hereto agree as follows:


 






(1) Include
if the Indemnitee is not a new officer/director.


(2) Include
if the Indemnitee is a new officer/director.


 


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1.                                       Certain Definitions.


 


(a)                                  A “Change in Control” shall be
deemed to have occurred if:


 


(i)                                     any “person,” as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder (the “Exchange Act”),
other than (a) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company; (b) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company; or (c) any current
beneficial stockholder or group, as defined by Rule 13d-5 of the Exchange
Act, including the heirs, assigns and successors thereof, of beneficial
ownership, within the meaning of Rule 13d-3 of the Exchange Act, of
securities possessing more than 50% of the total combined voting power of the
Company’s outstanding securities; hereafter becomes the “beneficial owner,” as
defined in Rule 13d-3 of the Exchange Act, directly or indirectly, of
securities of the Company representing 20% or more of the total combined voting
power represented by the Company’s then outstanding Voting Securities;


 


(ii)                                  during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board and
any new director whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds of the
directors then in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or


 


(iii)                               the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company’s assets.


 


(b)                                 “DGCL” shall mean the General
Corporation Law of the State of Delaware, as the same exists or may hereafter
be amended or interpreted; provided, however, that in the case of any such
amendment or interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader indemnification rights
than were permitted prior thereto.


 


(c)                                  “Expense” shall mean attorneys’
fees and all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or participating
in (including on appeal), or preparing for any of the foregoing, any Proceeding
relating to any Indemnifiable Event.


 


(d)                                 “Indemnifiable Event” shall mean
any event or occurrence that takes place either prior to or after the execution
of this Agreement, related to the fact that the Indemnitee is 


 


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or was
a director or officer of the Company, or is or was serving at the request of
the Company as a director, officer, employee, or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, or by reason of anything done
or not done by the Indemnitee in any such capacity.


 


(e)                                  “Proceeding” shall mean any
threatened, pending or completed action, suit, investigation or proceeding, and
any appeal thereof, whether civil, criminal, administrative or investigative
and/or any inquiry or investigation, whether conducted by the Company or any
other party, that the Indemnitee in good faith believes might lead to the
institution of any such action.


 


(f)                                    “Reviewing Party” shall mean any
appropriate person or body consisting of a member or members of the Company’s
Board or any other person or body appointed by the Board (including the special
independent counsel referred to in Section 6) who is not a party to the
particular Proceeding with respect to which the Indemnitee is seeking
indemnification.


 


(g)                                 “Voting Securities” shall mean any
securities of the Company which vote generally in the election of directors.


 


2.                                       Indemnification.  In the event the Indemnitee was or is a party to or is
involved (as a party, witness, or otherwise) in any Proceeding by reason of (or
arising in part out of) an Indemnifiable Event, whether the basis of the
Proceeding is the Indemnitee’s alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, the Company shall indemnify the Indemnitee to the fullest extent
permitted by the DGCL against any and all Expenses, liability, and loss
(including judgments, fines, ERISA excise taxes or penalties, and amounts paid
or to be paid in settlement, and any interest, assessments, or other charges
imposed thereon, and any federal, state, local, or foreign taxes imposed on any
director or officer as a result of the actual or deemed receipt of any payments
under this Agreement) (collectively, “Liabilities”) reasonably incurred
or suffered by such person in connection with such Proceeding.  The Company shall provide indemnification
pursuant to this Section 2 as soon as practicable, but in no event later
than 30 days after it receives written demand from the Indemnitee.  Notwithstanding anything in this Agreement to
the contrary and except as provided in Section 5 below, the Indemnitee
shall not be entitled to indemnification pursuant to this Agreement (i) in
connection with any Proceeding initiated by the Indemnitee against the Company
or any director or officer of the Company unless the Company has joined in or
consented to the initiation of such Proceeding or (ii) on account of any
suit in which judgment is rendered against the Indemnitee pursuant to Section 16(b) of
the Exchange Act for an accounting of profits made from the purchase or sale by
the Indemnitee of securities of the Company.


 


3.                                       Advancement of Expenses.  The Company shall advance Expenses to the Indemnitee
within 30 business days of such request (an “Expense Advance”);
provided, however, that if required by applicable corporate laws such Expenses
shall be advanced only upon delivery to the Company of an undertaking by or on
behalf of the Indemnitee to repay such amount if it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the Company; and
provided further, that the Company shall make such advances only to the extent
permitted by law.  Expenses incurred by
the Indemnitee while not acting in his/her capacity as a director or 


 


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officer, including service with respect to employee
benefit plans, may be advanced upon such terms and conditions as the Board, in
its sole discretion, deems appropriate.


 


4.                                       Review Procedure for
Indemnification.  Notwithstanding the foregoing, (i) the
obligations of the Company under Sections 2 and 3 above shall be subject
to the condition that the Reviewing Party shall not have determined (in a
written opinion, in any case in which the special independent counsel referred
to in Section 6 hereof is involved) that the Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the obligation
of the Company to make an Expense Advance pursuant to Section 3 above
shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be
reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for
all such amounts theretofore paid; provided, however, that if the Indemnitee
has commenced legal proceedings in a court of competent jurisdiction pursuant
to Section 5 below to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that the Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and the Indemnitee shall not be required to reimburse
the Company for any Expense Advance until a final judicial determination is
made with respect thereto (as to which all rights of appeal therefrom have been
exhausted or have lapsed).  The
Indemnitee’s obligation to reimburse the Company for Expense Advances pursuant
to this Section 4 shall be unsecured and no interest shall be charged
thereon.  The Reviewing Party shall be
selected by the Board, unless there has been a Change in Control, other than a
Change in Control which has been approved by a majority of the Company’s Board
who were directors immediately prior to such Change in Control, in which case
the Reviewing Party shall be the special independent counsel referred to in Section 6
hereof.


 


5.                                       Enforcement of Indemnification
Rights.  If the Reviewing Party determines that the
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, or if the Indemnitee has not otherwise been paid
in full pursuant to Sections 2 and 3 above within 30 days after a
written demand has been received by the Company, the Indemnitee shall have the
right to commence litigation in any court in the State of Delaware having
subject matter jurisdiction thereof and in which venue is proper to recover the
unpaid amount of the demand (an “Enforcement Proceeding”) and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid any
and all Expenses in connection with such Enforcement Proceeding.  The Company hereby consents to service of
process for such Enforcement Proceeding and to appear in any such Enforcement
Proceeding.  Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and
the Indemnitee.


 


6.                                       Change in Control. 
The Company agrees that if there is a Change in Control of the Company,
other than a Change in Control which has been approved by a majority of the
Company’s Board who were directors immediately prior to such Change in Control,
then with respect to all matters thereafter arising concerning the rights of
the Indemnitee to indemnity payments and Expense Advances under this Agreement
or any other agreement or under applicable law or the Company’s Certificate of
Incorporation or Bylaws now or hereafter in effect relating to indemnification
for Indemnifiable Events, the Company shall seek legal advice only from special
independent counsel selected by the Indemnitee and approved by the 


 


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Company, which approval shall not be unreasonably
withheld.  Such special independent
counsel shall not have otherwise performed services for the Company or the
Indemnitee, other than in connection with such matters, within the last five
years.  Such 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 the Indemnitee in an action to determine the Indemnitee’s
rights under this Agreement.  Such
counsel, among other things, shall render its written opinion to the Company
and the Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under applicable law.  The Company agrees to pay the reasonable fees
of the special independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of special independent counsel pursuant to this Agreement.


 


7.                                       Partial Indemnity. 
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses and  Liabilities, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion thereof to which the Indemnitee is entitled.  Moreover, notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any or all Proceedings relating in whole or
in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.  In connection with any determination by the
Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish
that the Indemnitee is not so entitled.


 


8.                                       Non-exclusivity. 
The rights of the Indemnitee hereunder shall be in addition to any other
rights the Indemnitee may have under any statute, provision of the Company’s
Certificate of Incorporation or Bylaws, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.  To the extent that a change in the DGCL
permits greater indemnification by agreement than would be afforded currently
under the Company’s Certificate of Incorporation and Bylaws and this Agreement,
it is the intent of the parties hereto that the Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change.


 


9.                                       Liability Insurance. 
To the extent the Company maintains an insurance policy or policies
providing directors’ and officers’ liability insurance, the 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 or officer of the
Company.


 


10.                                 Settlement of Claims. 
The Company shall not be liable to indemnify the Indemnitee under this
Agreement (a) for any amounts paid in settlement of any action or claim
effected without the Company’s written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the Company was
not given a reasonable and timely opportunity, at its expense, to participate
in the defense of such action.


 


11.                                 No Presumption. 
For purposes of this Agreement, to the fullest extent permitted by law,
the termination of any Proceeding, action, suit or claim, by judgment, order,
settlement (whether 


 


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with or without court approval) or conviction, or upon
a plea of nolo contendere, or its equivalent, shall not create a presumption
that the Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.


 


12.                                 Period of Limitations. 
No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company or any affiliate of the Company against
the Indemnitee, the Indemnitee’s spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, or such longer period as may be required by state law
under the circumstances, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such period; provided, however, that if
any shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.


 


13.                                 Consent and Waiver by Third
Parties.  The Indemnitee hereby represents and warrants
that he or she has obtained all waivers and/or consents from third parties
which are necessary for his or her employment with the Company on the terms and
conditions set forth herein and to execute and perform this Agreement without
being in conflict with any other agreement, obligation or understanding with
any such third party.  The Indemnitee
represents that he or she is not bound by any agreement or any other existing
or previous business relationship which conflicts with, or may conflict with,
the performance of his or her obligations hereunder or prevent the full
performance of his or her duties and obligations hereunder.


 


14.                                 Amendment of this Agreement. 
No supplement, modification 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.  Except as specifically provided
herein, no failure to exercise or any delay in exercising any right or remedy
hereunder shall constitute a waiver thereof.


 


15.                                 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.


 


16.                                 No Duplication of Payments.  The
Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent the Indemnitee
has otherwise actually received payment (under any insurance policy, Bylaw,
vote, agreement or otherwise) of the amounts otherwise indemnifiable hereunder.


 


17.                                 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, assigns,
including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives.  The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or otherwise)
to all, substantially all, or a substantial part, of the business 


 


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and/or assets of the Company, by written agreement in
form and substance satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken
place.  This Agreement shall continue in
effect regardless of whether the Indemnitee continues to serve as a director or
officer of the Company or of any other enterprise at the Company’s request.


 


18.                                 Severability. 
The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law.  Furthermore, to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion
of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.


 


19.                                 Governing Law. 
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed in such State without giving effect to the principles of
conflicts of laws.


 


20.                                 Counterparts. 
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.


 


21.                                 Notices. 
All notices, demands, and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand, against receipt, or mailed, postage prepaid, certified or
registered mail, return receipt requested, and addressed to the Company at:


 


Inovio
Biomedical Corporation


11494
Sorrento Valley Road


San
Diego, CA 92121


Fax:
(858) 597-0451


Attn:
Chief Financial Officer


 


	
  and to the Indemnitee
  at:

  
	
   

  
	
   

  



Notice
of change of address shall be effective only when done in accordance with this
Section.  All notices complying with this
Section shall be deemed to have been received on the date of delivery or
on the third business day after mailing.


 


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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day first set forth above.


 


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  INOVIO BIOMEDICAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
				



 


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