Contract

EXHIBIT 10.1 IMARX THERAPEUTICS, INC. INDEMNIFICATION AGREEMENT THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is entered into on______________________, between IMARX THERAPEUTICS, INC. a Delaware corporation(the “Company”), and ___________________, a director, officer, or both, of theCompany and/or one or more of its subsidiaries (“Indemnitee”), for good andvaluable consideration as set forth below. RECITALS A. The Company recognizes the importance, and increasing difficulty, ofobtaining adequate liability insurance coverage for its directors, officers,employees, agents and fiduciaries. B. The Company further recognizes that, at the same time as theavailability and coverage of such insurance has become more limited, litigationagainst corporate directors, officers, employees, agents and fiduciaries hascontinued to increase. C. Section 145 of the Delaware General Corporation Law, (“Statute”) underwhich the Company is organized, empowers the Company by agreement to indemnifyits directors, officers, employees, agents, and persons who serve, at therequest of the Company, as the directors, officers, employees or agents of othercorporations or enterprises related to the Company, and expressly provides thatthe indemnification provided by Section 145 of the Statute is not exclusive. D. Article VIII of the Company’s Bylaws (the “Bylaws”) provides forindemnification of the Company’s directors and officers to the full extentauthorized by the Statute, and that such provisions are not exclusive and may besupplemented by agreements between the Company and its officers and directors. E. The Company desires to retain and attract the services of highlyqualified individuals, such as Indemnitee, to serve the Company and, in thatconnection, also desires to provide contractually for indemnification of, andadvancement of expenses to, Indemnitee to the full extent authorized by law. AGREEMENT 1. INDEMNIFICATION a. SCOPE. Subject to Section 1(b), the Company agrees to hold harmlessand indemnify Indemnitee against any Damages (as defined in Section 1(d))incurred by Indemnitee with respect to any Proceeding (as defined in Section1(e)) to which Indemnitee is or is threatened to be made a party or in whichIndemnitee is otherwise involved (including, but not limited to, as a witness),to the full extent authorized or permitted by law, except that Indemnitee shallhave no right to indemnification on account of: (i) acts or omissions ofIndemnitee thathave been finally adjudged (by a court having proper jurisdiction, and after allrights of appeal have been exhausted or lapsed, herein “Finally Adjudged”) to benot in good faith or which involve intentional misconduct or a knowing violationof law; (ii) any breach of the director’s duty of loyalty to the Company or itsstockholders; (iii) any liability under Section 174 of the Statute; (iv) anytransaction with respect to which it has been Finally Adjudged that Indemniteepersonally received an improper personal benefit; or (v) any suit in which it isFinally Adjudged that Indemnitee is liable for an accounting of profits madefrom the purchase or sale by Indemnitee of securities of the Company inviolation of the provisions of Section 16(b) of the Securities Exchange Act of1934 and amendments thereto. b. DERIVATIVE ACTIONS. The obligations described in Section 1(a) shallapply with equal force in situations where the Indemnitee is a party orthreatened to be made a party to any Proceeding by or in the right of theCompany, except that no indemnification shall be made in respect to any claim,issue or matter in such Proceeding as to which the Indemnitee has been FinallyAdjudged to be liable to the Company unless, and only to the extent that, thecourt in which such Proceeding was brought has determined that, despite theadjudication of liability but in view of all the circumstances of the case, theIndemnitee is fairly and reasonably entitled to indemnity for such amounts asthe court deems proper. c. CHANGES TO INDEMNIFICATION RIGHT. Indemnitee’s right to beindemnified to the full extent authorized by law shall include the benefits ofany change, after the date of this Agreement, in the Statute or other applicablelaw regarding the right of a Delaware corporation to indemnify directors orofficers, to the extent that it would expand Indemnitee’s rights hereunder. Anysuch change that would narrow or interfere with Indemnitee’s rights hereundershall not apply to, limit, or affect the interpretation of, this Agreement,unless and then only to the extent that it has been Finally Adjudged that itsapplication hereto does not constitute an unconstitutional impairment ofIndemnitee’s contract rights or otherwise violate applicable law. d. INDEMNIFIED AMOUNTS. If Indemnitee is or is threatened to be made aparty to, or is otherwise involved (including, but not limited to, as a witness)in, any Proceeding, the Company shall hold harmless and indemnify Indemniteefrom and against any and all losses, claims, damages, costs, expenses andliabilities incurred in connection with investigating, defending, being awitness in, participating in or otherwise being involved in (including onappeal), or preparing to defend, be a witness in, participate in or otherwise beinvolved in (including on appeal), such Proceeding, including but not limited toattorneys’ fees, judgments, fines, penalties, ERISA excise taxes, amounts paidin settlement, any federal, state, local or foreign taxes imposed on Indemniteeas a result of the actual or deemed receipt of any payments pursuant to thisAgreement, and other expenses (collectively, “Damages”), including all interest,assessments or charges paid or payable in connection with or in respect of suchDamages. e. DEFINITION OF PROCEEDING. For purposes of this Agreement,”Proceeding” shall mean any actual, pending, threatened or completed action,suit, claim, investigation, hearing or proceeding (whether civil, criminal,administrative or investigative, and whether formal or informal) in whichIndemnitee is, has been or becomes involved, or regarding which Indemnitee isthreatened to be made a named defendant or respondent, based in whole or in parton or arising out of the fact that Indemnitee is or was a director, officer,member of a board committee, employee or agent of the Company and/or any of itssubsidiaries or that, being or 2having been such a director, officer, member of a board committee, employee oragent, Indemnitee is or was serving at the request of the Company as a director,officer, partner, employee, trustee or agent of another corporation or of aforeign or domestic corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise related to the Company (each, a “RelatedCompany”), whether the basis of such action, suit, claim, investigation, hearingor proceeding is alleged action or omission by Indemnitee in an officialcapacity as a director, officer, committee member, partner, employee, trustee oragent or in any other capacity while serving as a director, officer, committeemember, partner, employee, trustee or agent. “Proceeding” shall not, however,include any action, suit, claim, investigation, hearing or proceeding institutedby or at the direction of Indemnitee unless pursuant to an Enforcement Action(as defined in Section 3(a)) or its institution has been authorized by theCompany’s Board of Directors (the “Board”). f. NOTIFICATIONS. i. Promptly after receipt by Indemnitee of notice of thecommencement (including a threatened assertion or commencement) of anyProceeding, Indemnitee will, if it is reasonably foreseeable that a claim inrespect thereof will be made against the Company under this Agreement, notifythe Chair of the Board’s [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING ANDCORPORATE GOVERNANCE COMMITTEE] of the commencement thereof (which notice shallbe in the form of Exhibit A hereto) (the “Indemnification Notice”). A failure tonotify the Company in accordance with this subsection (f)(i) will not, however,relieve the Company from any liability to Indemnitee under this Agreement unless(and then only to the extent that) such failure is Finally Adjudged to havematerially prejudiced the Company’s ability to defend the Proceeding. ii. At the same time, or from time to time thereafter, Indemniteemay further notify the Chair of the Board’s [AUDIT AND COMPLIANCE COMMITTEE ORTHE NOMINATING AND CORPORATE GOVERNANCE COMMITTEE], by delivery of asupplemental Indemnification Notice (or by checking the second box and providingthe corresponding information on the initial Indemnification Notice), of anyProceeding for which indemnification is being sought under this Agreement. g. DETERMINATION OF ENTITLEMENT. i. To the extent Indemnitee has been wholly successful, on themerits or otherwise, in the defense of any Proceeding, the Company shallindemnify Indemnitee against all expenses (including attorneys’ fees) incurredby Indemnitee in connection with the Proceeding, within ten (10) days afterreceipt of an Indemnification Notice delivered pursuant to subsection (g)(ii). ii. In the event that subsection (g)(i) above is inapplicable, ordoes not apply to the entire Proceeding, the Company shall indemnify Indemniteewithin thirty (30) days after receipt of an Indemnification Notice deliveredpursuant to subsection (f)(ii) unless during such thirty (30) day period the[AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATE GOVERNANCECOMMITTEE] of the Board delivers to Indemnitee a written notice contestingIndemnitee’s indemnification claim (the “Contest Notice”), which Contest Notice 3shall state with particularity the reasons for the decision to challengeIndemnitee’s indemnification claim and the evidence the Company would present inany forum in which Indemnitee might seek review of such decision. The Company’sfailure to deliver a Contest Notice within thirty (30) days after the Company’sreceipt of an Indemnification Notice pursuant to subsection (f)(ii) shallobligate the Company unconditionally to indemnify Indemnitee to the extentrequested in the Indemnification Notice. iii. At any time following receipt of a Contest Notice,Indemnitee shall be entitled to select a forum for the review of, and in whichthe Company will defend, the Contest Notice and the Company’s decision tochallenge Indemnitee’s indemnification claim. Such selection shall be made fromamong the following alternatives, by delivering a written notice to the Chair ofthe Board’s [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATEGOVERNANCE COMMITTEE] indicating Indemnitee’s selection of forum: (a) A majority vote of the directors who are not parties tothe Proceeding for which indemnification is being sought (“IndependentDirectors”), even though less than a quorum; (b) A committee of Independent Directors designated by avote of Independent Directors, even though less than a quorum; (c) Special Legal Counsel (as defined in subsection (g)(vii)below); (d) The stockholders of the Company; or (e) A panel of three independent arbitrators, one of whom isselected by the Company, another of whom is selected by Indemnitee and the lastof whom is selected by the first two arbitrators so selected,provided, that nothing in this Section 1(g) shall prevent Indemnitee at any timefrom bringing suit against the Company to recover the amount of theindemnification claim (whether or not Indemnitee has otherwise exhausted itscontractual remedies hereunder). In addition, any determination by a forumselected by Indemnitee that Indemnitee is not entitled to indemnification, orany failure to make the payments requested in the Indemnification Notice, shallbe subject to judicial review by any court of competent jurisdiction, asdescribed in Section 3. iv. In any forum in which the Company defends its Contest Noticeand its decision to challenge Indemnitee’s indemnification claim under thisSection 1(g), the presumptions, burdens and standard of review set forth inSection 3(c) shall apply and are incorporated into this Section 1(g) byreference, except as otherwise expressly provided in Section 3(c). v. As soon as practicable, and in no event later than fifteen(15) days after the forum has been selected pursuant to subsection (g)(iii)above, the Company shall, at its own expense, submit the defense of its ContestNotice and the question of Indemnitee’s right to indemnification to the selectedforum. 4 vi. The forum selected shall render its decision concerning thevalidity of the Contest Notice and the Company’s decision to deny Indemnitee’sindemnification claim within thirty (30) days after the forum has been selectedin accordance with subsection (g)(iii). vii. For the purposes of this Agreement, “Special Legal Counsel”shall mean an attorney or firm of attorneys, selected by Indemnitee and approvedby the Company (which approval shall not be unreasonably withheld), who must nothave performed other services for the Company or Indemnitee within the lastthree years. 2. EXPENSE ADVANCES a. GENERALLY. The right to indemnification conferred by Section 1shall include the right to have the Company pay Indemnitee’s attorneys’ fees andother expenses, including but not limited to out of pocket costs anddisbursements, incurred in connection with any Proceeding, or in connection withbringing, defending and/or pursuing an Enforcement Action (as defined in Section3(a)), as such expenses are incurred and in advance of the final disposition ofsuch Proceeding or Enforcement Action (such entitlement is referred tohereinafter as an “Expense Advance”). b. UNDERTAKING. The Company’s obligation to provide an Expense Advanceis subject only to the following condition: if the Proceeding arose inconnection with Indemnitee’s service as a director and/or officer of the Companyor member of a committee of the Board (and not in any other capacity in whichIndemnitee rendered service, including but not limited to service to any RelatedCompany), then Indemnitee or his or her representative must have executed anddelivered to the Chair of the Board’s [AUDIT AND COMPLIANCE COMMITTEE OR THENOMINATING AND CORPORATE GOVERNANCE COMMITTEE] an undertaking (in the form ofExhibit B hereto) (the “Statement of Undertaking”) to repay all Expense Advancesif and to the extent that it may be Finally Adjudged that Indemnitee is notentitled to be indemnified for such Expense Advance under one or more of clauses(i) through (iv) of the first sentence of Section 1(a). The Statement ofUndertaking need not be secured and shall be accepted by the Company withoutreference to Indemnitee’s financial ability to make repayment. No interest shallbe charged on any obligation to reimburse the Company for any Expense Advance. c. SERVICE AS WITNESS. Notwithstanding any other provision of thisAgreement, the Company’s obligation to indemnify, or provide Expense Advancesunder Section 2, to Indemnitee in connection with Indemnitee’s appearance as awitness in a Proceeding at a time when Indemnitee has not been made a nameddefendant or respondent to the Proceeding shall be absolute and unconditional,and not subject to any of the limitations on, or conditions to, Indemnitee’sright to indemnification or to receive an Expense Advance otherwise contained inthis Agreement. 3. PROCEDURES FOR ENFORCEMENT a. ENFORCEMENT. If a claim for indemnification made by Indemniteehereunder is not paid in full (whether or not the provisions of Section 1(g)have been complied with, or completed), or a claim for an Expense Advance madeby Indemnitee hereunder is not paid in full within twenty (20) days fromdelivery of a Statement of Undertaking to the Chair of 5the Board’s [AUDIT AND COMPLIANCE COMMITTEE OR THE NOMINATING AND CORPORATEGOVERNANCE COMMITTEE], Indemnitee may, but need not, at any time thereafterbring suit against the Company to recover the unpaid amount of the claim (an”Enforcement Action”). b. REQUIRED INDEMNIFICATION. The court hearing the Enforcement Actionshall order the Company to provide indemnification or to advance expenses toIndemnitee to the full extent sought in the Enforcement Action if it determinesthat (i) the Enforcement Action is brought by Indemnitee to enforce theCompany’s obligation under Section 1(g)(ii) unconditionally to indemnifyIndemnitee to the extent requested in the Indemnification Notice where theCompany has failed timely to deliver a Contest Notice, or (ii) the Companyfailed to prove by clear and convincing evidence that Indemnitee is not entitledto indemnification based on one or more of clauses (i) through (v) of the firstsentence of Section 1(a). c. PRESUMPTIONS, BURDENS AND STANDARD OF REVIEW IN ENFORCEMENT ACTIONOR COMPANY DETERMINATION. In any Enforcement Action (and, except as otherwiseexpressly provided in this Section 3(c), in any review of a Contest Notice by aforum described in Section 1(g)) the following presumptions (and limitations onpresumptions), burdens and standard of review shall apply: i. The Company shall conclusively be presumed to have enteredinto this Agreement and assumed the obligations imposed hereunder in order toinduce Indemnitee to serve or to continue to serve as an director and/or officerof the Company and/or one or more of its subsidiaries; ii. This Agreement shall conclusively be presumed to be valid andbinding on the parties hereto; iii. Submission of an Indemnification Notice in accordance withSection 1(f)(ii) or a Statement of Undertaking to the Company shall create apresumption that Indemnitee is entitled to indemnification or an Expense Advancehereunder, and thereafter the Company shall have the burden of proving by clearand convincing evidence (sufficient to rebut the foregoing presumption) thatIndemnitee is not entitled to indemnification based on one or more of clauses(i) through (v) of the first sentence of Section 1(a); iv. Indemnitee may establish a conclusive presumption of anyobjective fact related to an event or occurrence by delivering to the Company adeclaration made under penalty of perjury that such fact is true, provided, thatno such presumption may be established with respect to the ultimate conclusionsset forth in any of clauses (i) through (v) of the first sentence of Section1(a); v. If Indemnitee is or was serving as a director, officer,employee, trustee or agent of a corporation of which a majority of the sharesentitled to vote in the election of its directors is held by the Company or inan executive or management capacity in a partnership, joint venture, trust orother enterprise of which the Company or a wholly-owned subsidiary of theCompany is a general partner or has a majority ownership, then such corporation,partnership, joint venture, trust or enterprise shall conclusively be deemed aRelated 6Company and Indemnitee shall conclusively be deemed to be serving such RelatedCompany at the request of the Company; vi. Neither (i) the failure of the Company (including but notlimited to the Board, the Company’s officers, independent counsel, Special LegalCounsel, any arbitrator or the Company’s stockholders) to make a determinationprior to the commencement of the Enforcement Action whether indemnification, orpayment of an Expense Advance, of Indemnitee is proper in the circumstances nor(ii) an actual determination by the Company, the Board, the Company’s officers,independent counsel, Special Legal Counsel, any arbitrator or the Company’sstockholders that Indemnitee is not entitled to indemnification or payment of anExpense Advance shall be a defense to the Enforcement Action, create apresumption that Indemnitee is not entitled to indemnification hereunder or beconsidered by a court in an Enforcement Action, which shall conduct a de novoreview of the relevant issues; and vii. If the court hearing the Enforcement Action is unable tomake either of the determinations specified in Sections 3(b)(i) or 3(b)(ii), thecourt hearing the Enforcement Action shall nonetheless order the Company toprovide indemnification or to advance expenses to Indemnitee to the full extentsought in the Enforcement Action if it determines that Indemnitee is fairly andreasonably entitled to such indemnification or Expense Advance in view of all ofthe relevant circumstances, and without regard to the limitations set forth inclauses (i) through (iv) of the first sentence of Section 1(a). In determiningwhether Indemnitee is fairly and reasonably entitled to such indemnification orexpense advance, the court shall weigh (i) the relative benefits received by theCompany and/or any of its subsidiaries or any Related Company, or any of theiraffiliates other than Indemnitee, on the one hand, and Indemnitee on the otherfrom the transaction from which such Proceeding arose or to which suchProceeding relates, and (ii) the relative fault of the Company and/or any of itssubsidiaries or any Related Company, or any of their affiliates other thanIndemnitee, on the one hand, and of Indemnitee on the other in connection withthe transaction that resulted in such Damages, as well as any other relevantequitable considerations. The relative fault of the Company and/or any of itssubsidiaries or any Related Company, or any of their affiliates other thanIndemnitee, on the one hand, and of Indemnitee on the other shall be determinedby reference to, among other things, the parties’ relative intent, knowledge,access to information and opportunity to correct or prevent the circumstancesresulting in such Damages. If either (i) the relative benefits received by theCompany and/or any of its subsidiaries or any Related Company, or any of theiraffiliates other than Indemnitee, exceed the relative benefits received byIndemnitee, or (ii) the relative fault of the Company and/or any of itssubsidiaries or any Related Company, or any of their affiliates other thanIndemnitee, exceeds the relative fault of Indemnitee, then Indemnitee shall beentitled to the full amount of indemnification and/or Expense Advance sought inthe Enforcement Proceeding. d. ATTORNEYS’ FEES AND EXPENSES FOR ENFORCEMENT ACTION. In anyEnforcement Action, the Company shall hold harmless and indemnify Indemniteeagainst all of Indemnitee’s attorneys’ fees and expenses in bringing, defendingand/or pursuing the Enforcement Action (including but not limited to attorneys’fees at any stage, and on appeal); provided, however, that the Company shall notbe required to provide such indemnification for such fees and expenses if it isFinally Adjudged that Indemnitee knew prior to commencement of 7the Enforcement Action that Indemnitee was not entitled to indemnification basedon any of clauses (i) through (v) of the first sentence of Section 1(a). 4. DEFENSE OF CLAIM With respect to any Proceeding as to which Indemnitee has provided noticeto the Company pursuant to Section 1(f)(i): a. The Company may participate therein at its own expense. b. The Company (jointly with any other indemnifying party similarlynotified, if any) may assume the defense thereof, with counsel reasonablysatisfactory to Indemnitee. After notice from the Company to Indemnitee of itselection to so assume the defense thereof, the Company shall not be liable toIndemnitee under this Agreement for any legal fees or other expenses (other thanreasonable costs of investigation) subsequently incurred by Indemnitee inconnection with the defense thereof unless (i) the employment of counsel byIndemnitee or the incurring of such expenses has been authorized by the Company,(ii) Indemnitee shall have concluded that there is a reasonable possibility thata conflict of interest could arise between the Company and Indemnitee in theconduct of the defense of such Proceeding, which conflict of interest shall beconclusively presumed to exist upon Indemnitee’s delivery to the Company of awritten certification of such conclusion, or (iii) the Company shall not in facthave employed counsel to assume the defense of such Proceeding, in each of whichcases the legal fees and other expenses of Indemnitee shall be at the expense ofthe Company. The Company shall not be entitled to assume the defense of aProceeding brought by or on behalf of the Company or as to which Indemniteeshall have reached the conclusion described in clause (ii) above. c. The Company shall not be liable for any amounts paid in settlementof any Proceeding effected without its written consent. d. The Company shall not settle any Proceeding in any manner thatwould impose any penalty or limitation on Indemnitee without Indemnitee’swritten consent. e. Neither the Company nor Indemnitee will unreasonably withhold itsor his or her consent to any proposed settlement of any Proceeding. 5. MAINTENANCE OF D&O INSURANCE a. Subject to Section 5(c) below, during the period (the “CoveragePeriod”) beginning on the date of this Agreement and ending at the later of (i)six (6) years following the time Indemnitee is no longer serving as either adirector or officer of the Company and/or one or more subsidiaries or anyRelated Company, or (ii) at the end of such longer period during whichIndemnitee believes that a reasonable possibility of exposure to a Proceeding orDamages persists (which extended period must be consented to by the Company,such consent not to be unreasonably withheld), the Company shall maintain adirectors’ and officers’ liability insurance policy in full force and effect orshall have purchased or otherwise provided for a run-off or tail policy orendorsement to such existing policy (“D&O Insurance”), providing in all respectscoverage at least comparable to and in similar amounts, and with similarexclusions, as that 8obtained by other similarly situated companies as determined in good faith byany of the parties referenced in Section 1(g)(iii)(a) through (e). b. Under all policies of D&O Insurance, Indemnitee shall during theCoverage Period be named as an insured in such a manner as to provide Indemniteethe same rights and benefits, subject to the same limitations, as are accordedto the Company’s directors or officers most favorably insured by such policy,and each insurer under a policy of D&O Insurance shall be required to provideIndemnitee written notice at least thirty (30) days prior to the effective dateof termination of the policy. c. The Company shall have no obligation to obtain or maintain D&OInsurance to the extent that such insurance is not reasonably available, thepremium costs for such insurance are disproportionate to the amount of coverageprovided, or the coverage provided by such insurance is so limited by exclusionsas to provide an insufficient benefit, such determination to be made by any ofthe parties referenced in Section 1(g)(iii)(a) through (e). d. It is the intention of the parties in entering into this Agreementthat the insurers under the D&O Insurance, if any, shall be obligated ultimatelyto pay any claims by Indemnitee which are covered by D&O Insurance, and nothingherein shall be deemed to diminish or otherwise restrict the Company’s orIndemnitee’s right to proceed or collect against any insurers under D&OInsurance or to give such insurers any rights against the Company or Indemniteeunder or with respect to this Agreement, including but not limited to any rightto be subrogated to the Company’s or Indemnitee’s rights hereunder, unlessotherwise expressly agreed to by the Company and Indemnitee in writing. Theobligation of such insurers to the Company and Indemnitee shall not be deemedreduced or impaired in any respect by virtue of the provisions of thisAgreement. e. No indemnification pursuant to this Agreement shall be provided bythe Company for Damages or Expense Advances that have been paid directly toIndemnitee by an insurance carrier under a policy of D&O Insurance or otherinsurance maintained by the Company. f. In the event of payment under this Agreement, the Company shall besubrogated to the extent of such payment to all of the rights of Indemnitee torecover the same amounts from any insurer or other third person (other thananother person with indemnification rights against the Company substantiallysimilar those of Indemnitee under this Agreement). Indemnitee shall execute alldocuments required and take all acts necessary to secure such rights and enablethe Company effectively to bring suit to enforce such rights. 6. PARTIAL INDEMNIFICATION; MUTUAL ACKNOWLEDGMENT; CONTRIBUTION a. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under anyprovision of this Agreement to indemnification by the Company for some or aportion of any Damages in connection with a Proceeding, but not for the totalamount thereof, the Company shall nevertheless indemnify Indemnitee for theportion of such Damages to which Indemnitee is entitled. 9 b. MUTUAL ACKNOWLEDGMENT. The Company and Indemnitee acknowledge that,in certain instances, federal law or public policy may override applicable statelaw and prohibit the Company from indemnifying Indemnitee under this Agreementor otherwise. For example, the Company and Indemnitee acknowledge that theSecurities and Exchange Commission (the “SEC”) has taken the position thatindemnification is not permissible for liabilities arising under certain federalsecurities laws, and federal legislation prohibits indemnification for certainERISA violations. Furthermore, Indemnitee understands that the Company hasundertaken or may be required in the future to undertake with the SEC to submitfor judicial determination the issue of the Company’s power to indemnifyIndemnitee in certain circumstances; all of the Company’s obligations under thisAgreement will be subject to the requirements of any such undertaking requiredby the SEC to be made by the Company. c. CONTRIBUTION. If the indemnification provided under Sections 1, 2and 6 is unavailable by reason of any of the circumstances specified in one ormore of clauses (i) through (iv) of the first sentence of Section 1(a) then, inrespect of any Proceeding in which the Company is jointly liable with Indemnitee(or would be if joined in such Proceeding), the Company shall contribute to theamount of Damages (including attorneys’ fees) actually and reasonably incurredand paid or payable by Indemnitee in such proportion as is appropriate toreflect (i) the relative benefits received by the Company and/or any of itssubsidiaries or any Related Company, or any of their affiliates other thanIndemnitee, on the one hand, and Indemnitee on the other from the transaction orevents from which such Proceeding arose or to which such Proceeding relates, and(ii) the relative fault of the Company and/or any of its subsidiaries or anyRelated Company, or any of their affiliates other than Indemnitee, on the onehand, and of Indemnitee on the other in connection with the transaction orevents that resulted in such Damages, as well as any other relevant equitableconsiderations. The relative fault of the Company and/or any of its subsidiariesor any Related Company, or any of their affiliates other than Indemnitee, on theone hand, and of Indemnitee on the other shall be determined by reference to,among other things, the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent the circumstances resulting insuch Damages. The Company agrees that it would not be just and equitable ifcontribution pursuant to this Section 6(c) were determined by pro rataallocation or any other method of allocation that does not take account of theforegoing equitable considerations. 7. [RELEASE OF CLAIMS RELATING TO OFFICER’S FAILURE TO DISCHARGE DUTIES. IfIndemnitee is an officer of the Company and/or one or more of its subsidiaries,the indemnification and other rights and benefits provided to Indemnitee by thisAgreement shall apply fully with respect to any Proceeding in which it isclaimed or adjudicated that Indemnitee is liable to the Company and/or one ormore of its subsidiaries by reason of having failed to discharge the duties ofIndemnitee’s office, and the Company hereby irrevocably releases all such claimsand liabilities, agrees to cause its subsidiaries to release all such claims,and agrees to hold Indemnitee harmless with respect to any such claims;provided, however, that the foregoing indemnification, release and hold harmlessobligations of the Company shall have no application with respect to claims byand liabilities to the Company based upon actions or omissions described in oneor more of clauses (i) through (v) of the first sentence of Section 1(a).] 8. MISCELLANEOUS 10 a. This Agreement shall be interpreted and enforced in accordance withthe laws of the State of Delaware. b. This Agreement shall be binding upon Indemnitee and upon theCompany, its successors and assigns, and shall inure to the benefit ofIndemnitee, Indemnitee’s heirs, personal representatives and assigns and to thebenefit of the Company, its successors and assigns. The Company shall requireany successor to the Company (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business orassets of the Company, expressly to assume and agree to perform this Agreementin the same manner and to the same extent that the Company would be required toperform if no such succession had taken place. c. Indemnitee’s rights to indemnification and advancement of expensesunder this Agreement shall not be deemed exclusive of any other or additionalrights to which Indemnitee may be entitled under the Articles or Bylaws, anyvote of stockholders or disinterested directors, the Statute or otherwise,whether as to actions or omissions in Indemnitee’s official capacity orotherwise. d. Nothing in this Agreement shall confer upon Indemnitee the right tocontinue to serve as a director and\or officer of the Company or any of itssubsidiaries or any Related Company. If Indemnitee is an officer of the Company,then, unless otherwise expressly provided in a written employment agreementbetween the Company and Indemnitee, the employment of Indemnitee with theCompany shall be terminable at will by either party. The indemnification andrelease provided under this Agreement shall apply to any and all Proceedings,notwithstanding that Indemnitee has ceased to be a director, officer, partner,employee, trustee or agent of the Company, any of its subsidiaries or a RelatedCompany, and shall inure to the benefit of the heirs, executors andadministrators of Indemnitee. e. If any provision or provisions of this Agreement shall be held tobe invalid, illegal or unenforceable for any reason whatsoever, then: (i) thevalidity, legality and enforceability of the remaining provisions of thisAgreement (including, without limitation, all portions of any paragraphs of thisAgreement containing any such invalid, illegal or unenforceable provision thatare not themselves invalid, illegal or unenforceable) shall not in any way beaffected or impaired thereby; and (ii) to the fullest extent possible, theprovisions of this Agreement (including, without limitation, all portions of anyparagraphs of this Agreement containing any such invalid, illegal orunenforceable provision, that are not themselves invalid, illegal orunenforceable) shall be construed so as to give effect to the intent manifestedby the provision held invalid, illegal or unenforceable. f. Any notices or communications to be given or required to be givenunder this Agreement shall be given by personal delivery or registered airmail,overnight courier, telex, facsimile or electronic mail at the following address(or such other address as the relevant party provides the other party in writingand referencing this Section 8(f)): COMPANY: ImaRx Therapeutics, Inc. 11 1635 East 18th St. Tucson, AZ 85719 (Fax) 1-520-[_____] (Tel) 1-520-770-1259 Attn: ___________________________________ electronic mail: ________________________ INDEMNITEE: _______________________________ _______________________________ _______________________________ (Fax) _______________ (Tel) _______________ electronic mail: ________________________Notices and communications shall be deemed received by the addressee on the dateof delivery if delivered in person, on the third (3rd) day after mailing ifdelivered by registered airmail, on the next business day after mailing if sentby overnight courier, on the next business day if sent by telex or facsimile, orupon confirmation of delivery when directed to the electronic mail addressdescribed above if sent by electronic mail. g. No amendment, modification, termination or cancellation of thisAgreement shall be effective unless in writing signed by both parties hereto. h. If Indemnitee has previously executed an indemnification agreementwith the Company, this Agreement supersedes such prior indemnification agreementin its entirety. i. This Agreement may be executed in two counterparts, each of whichshall be deemed an original, but both of which together shall constitute one andthe same instrument. IN WITNESS WHEREOF, the parties have executed and delivered this Agreementeffective as of the day and year first set forth above. “Company” IMARX THERAPEUTICS, INC. By ————————————- ————————————- Its: ———————————– 12 “Indemnitee” —————————————- —————————————- [Type name] 13 EXHIBIT A INDEMNIFICATION NOTICE CHECK THE APPROPRIATE SPACE BELOW, AND PROVIDE A BRIEF DESCRIPTION OF THEPROCEEDING AS REQUESTED BELOW: ____ Notice is hereby given by the undersigned, _________________________, pursuant to Section 1(f)(i) of the Indemnification Agreement (the “Agreement”) dated ___________________________ between ImaRx Therapeutics, Inc., a Delaware corporation (the “Company”), and the undersigned, of the commencement of a Proceeding, as defined in the Agreement. A brief description of the Proceeding is as follows: ____ If indemnification of particular Damages (as defined in the Agreement) is being sought at this time, pursuant to Section 1(f)(ii) of the Agreement, the undersigned hereby requests indemnification by the Company under the terms of the Agreement with respect to the following Damages incurred in connection with the Proceeding:Dated: , . —————- —— —————————————- [Signature of Indemnitee] —————————————- [Type name] EXHIBIT B STATEMENT OF UNDERTAKINGSTATE OF ______________________________) ) ss.COUNTY OF _____________________________) I, _____________________, being first duly sworn, do depose and say asfollows: 1. This Statement is submitted pursuant to the Indemnification Agreement(the “Agreement”) dated ___________________________ between ImaRx Therapeutics,Inc., a Delaware corporation (the “Company”), and me. 2. I am requesting an Expense Advance, as defined in the Agreement. 3. I hereby undertake to repay the Expense Advance if and to the extent itis Finally Adjudged (as defined in the Agreement) that I am not entitled underthe Agreement to be indemnified by the Company. 4. The expenses for which advancement is requested, and a brief descriptionof the underlying Proceeding (as defined in the Agreement), are as follows: [ADD BRIEF DESCRIPTION OF EXPENSES AND PROCEEDING]DATED: , . —————- —— —————————————-SUBSCRIBED AND SWORN TO before me this ____ day of ________________,(Seal or stamp) —————————————- Notary Signature —————————————- Print/Type Name Notary Public in and for the State of [___], residing at _____________________ My appointment expires _________________