CLOVIS ONCOLOGY, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.12
This Indemnification Agreement (this “Agreement”) is dated as of May 15, 2009, and is between
Clovis Oncology, Inc., a Delaware corporation (the “Company”), and Xxxx X. Xxxx (“Indemnitee”).
RECITALS
A. Indemnitee’s service to the Company substantially benefits the Company.
B. Individuals are reluctant to serve as directors or officers of corporations or in certain
other capacities unless they are provided with adequate protection through insurance or
indemnification against the risks of claims and actions against them arising out of such service.
C. Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and any insurance as adequate under the present circumstances, and
Indemnitee may not be willing to serve as a director or officer without additional protection.
D. In order to induce Indemnitee to continue to provide services to the Company, it is
reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify,
and to advance expenses on behalf of, Indemnitee as permitted by applicable law.
E. This Agreement is a supplement to and in furtherance of the indemnification provided in the
Company’s certificate of incorporation and bylaws, and any resolutions adopted pursuant thereto,
and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement be deemed to
limit, diminish or abrogate any rights of Indemnitee thereunder.
The parties therefore agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is or was a director, trustee,
general partner, managing member, officer, employee, agent or fiduciary of the Company or any other
Enterprise.
(b) “DGCL” means the General Corporation Law of the State of Delaware.
(c) “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.
(d) “Enterprise” means the Company and any other corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, trustee, general partner, managing member,
officer, employee, agent or fiduciary.
(e) “Expenses” include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, 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, being or preparing to be a witness in, or otherwise participating in, a
Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for, and other costs
relating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for
purposes of Section 12(b), Expenses incurred by Indemnitee in connection with the interpretation,
enforcement or defense of Indemnitee’s rights under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the Company. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments, penalties or fines
against Indemnitee.
(f) “Independent Counsel” means a law firm, or a partner or 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 as Independent Counsel with respect to matters concerning Indemnitee under this
Agreement, or 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.
(g) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or proceeding, whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, including any appeal therefrom and including
without limitation any such Proceeding pending as of the date of this Agreement, in which
Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or
otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company,
(ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s part while acting as
a director or officer of the Company, or (iii) the fact that he or she is or was serving at the
request of the Company as a director, trustee, general partner, managing member, officer, employee,
agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving in
such capacity at the time any liability or Expense is incurred for which indemnification or
advancement of expenses can be provided under this Agreement.
(h) Reference to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to any employee benefit
plan; references to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to in this Agreement.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance
with the provisions of this Section 2 if, by reason of his or her Corporate Status, Indemnitee is,
or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding
by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2,
Indemnitee shall be
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indemnified to the fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or
her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she 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 that his or her conduct was unlawful.
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if, by reason of his or her
Corporate Status, Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company. No indemnification for Expenses shall be made under this Section 3 in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged by a
court of competent jurisdiction to be liable to the Company, unless and only to the extent that the
Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the
Delaware Court of Chancery or such other court shall deem proper. Anything in this Agreement to
the contrary notwithstanding, if the Indemnitee, by reason of the Indemnitee’s Corporate Status, is
or was, or is or was threatened to be made, a party to any Proceeding by or in the right of the
Company to procure a judgment in its favor, then the Company shall not indemnify the Indemnitee for
any judgment, fines, or amounts paid in settlement to the Company in connection with such
Proceeding.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the extent
that Indemnitee, by reason of his or her Corporate Status, is a party to or a participant in and is
successful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or matter
therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. To the extent permitted
by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, in defense of 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 Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this section, 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.
5. Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of
his or her Corporate Status, a witness, or is or was made (or asked) to respond to discovery
requests, in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to
the fullest extent permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify
Indemnitee to the fullest extent permitted by applicable law if Indemnitee, by reason of his or her
Corporate
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Status, is, or is threatened to be made, a party to or a participant in any Proceeding (including a
Proceeding by or in the right of the Company to procure a judgment in its favor) against all
Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with the Proceeding or any claim, issue or matter
therein.
(b) For purposes of Section 6(a), the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include, but not be limited to:
(i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any amendment to or
replacement of the DGCL; and
(ii) the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part
of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid, and except as may otherwise be agreed between the Company, on the one hand, and
Indemnitee or another indemnitor of Indemnitee, on the other;
(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or
common law, if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements);
(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee from the sale of securities
of the Company, as required in each case under the Securities Exchange Act of 1934, as amended
(including any such reimbursements that arise from an accounting restatement of the Company
pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the
payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements);
(d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers, employees, agents or other
indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant
part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law, (iii)
otherwise authorized in Section 12(b) or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
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8. Advances of Expenses. The Company shall advance the Expenses incurred by Indemnitee in
connection with any Proceeding in which Indemnitee is, or is threatened to be made, a party to or a
participant in by reason of Indemnitee’s Corporate Status, and such advancement shall be made as
soon as reasonably practicable, but in any event no later than 60 days, after the receipt by the
Company of a written statement or statements from Indemnitee requesting such advances from time to
time (which shall include invoices received by Indemnitee in connection with such Expenses or
otherwise reasonably evidence the Expenses incurred by Indemnitee, but, in the case of invoices in
connection with legal services, any references to legal work performed or to expenditure made that
would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with
the invoice). Advances shall be unsecured and interest free and made without regard to Indemnitee’s
ability to repay such advances. Indemnitee hereby undertakes to repay any advance to the extent
that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 8 shall not apply to the extent advancement is prohibited by law and shall not apply
to any Proceeding for which indemnity is not permitted under this Agreement, but shall apply to any
Proceeding referenced in Section 7(b) or 7(c) prior to a determination that Indemnitee is not
entitled to be indemnified by the Company.
9. Procedures for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing upon being served with or otherwise
receiving any summons, citation, subpoena, complaint, indictment or other document relating to any
Proceeding or any matter which may be subject to indemnification covered hereunder with respect to
which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably
practicable following the receipt by Indemnitee thereof. The written notification to the Company
shall include, in reasonable detail, a description of the nature of the Proceeding and the facts
underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve the
Company from any liability which it may have to Indemnitee hereunder or otherwise than under this
Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of
any rights, except to the extent that such failure or delay materially prejudices the Company.
(b) If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof,
the Company has directors’ and officers’ liability insurance in effect, the Company shall give
prompt notice of the commencement of the Proceeding to the insurers in accordance with the
procedures set forth in the applicable policies. The Company shall thereafter take all reasonably
necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such Proceeding in accordance with the terms of such policies.
(c) In the event the Company may be obligated to make any indemnity in connection with a
Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election to do so. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not
be liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemnitee
with respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of any
such Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’s
counsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company,
(ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflict
of interest between the Company and Indemnitee in the conduct of any such defense such that
Indemnitee needs to be separately represented, (iii) the Company is not financially or legally
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able to perform its indemnification obligations or (iv) the Company shall not have retained, or
shall not continue to retain, such counsel to defend such Proceeding. The Company shall have the
right to conduct such defense as it sees fit in its sole discretion. Regardless of any provision in
this Agreement, Indemnitee shall have the right to employ counsel in any Proceeding at Indemnitee’s
personal expense. The Company shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the Company.
(d) Indemnitee shall give the Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e) The Company shall not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior written consent, which shall not be
unreasonably withheld.
10. Procedures upon Application for Indemnification.
(a) To obtain indemnification, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is reasonably available to
Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification following the final disposition of the Proceeding. The Company shall,
promptly after receipt of such a request for indemnification, advise the board of directors that
Indemnitee has requested indemnification. Any delay in providing the request will not relieve the
Company from its obligations under this Agreement, except to the extent such failure is
prejudicial.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a
determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case
(A) by a majority vote of the Disinterested Directors, even though less than a quorum of the
Company’s board of directors, (B) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than a quorum of the Company’s board
of directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors
so direct, by Independent Counsel in a written opinion to the Company’s board of directors, a copy
of which shall be delivered to Indemnitee or (D) if so directed by the Company’s board of
directors, by the stockholders of the Company. If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to this Section 10(b), the
Independent Counsel shall be selected by the Board of Directors and approved by Indemnitee. Upon
failure of the Board of Directors to so select, or upon the failure of Indemnitee to so approve,
such Independent Counsel shall be selected by the Court of Chancery of the State of Delaware or
such other person or body as the Indemnitee and the Company may agree in writing. If the person
making such determination shall determine that Indemnitee is entitled to indemnification as to part
(but not all) of the application for indemnification, such person shall reasonably pro-rate such
part of indemnification among such claims, issues or matters. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten days
after such determination. Indemnitee shall cooperate with the person, persons or entity making the
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
that is not privileged or otherwise protected from disclosure and that is reasonably available to
Indemnitee and reasonably necessary to such determination. Any costs or expenses (including
attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the Company, to the fullest
extent permitted by applicable law.
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11. Presumptions and Effect of Certain Proceedings.
(a) 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 create a presumption that
Indemnitee did not act in good faith and in a manner which he or she 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 or her conduct was unlawful.
(b) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account
of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the
Enterprise or its board of directors or counsel selected by any committee of the board of directors
or (iv) information or records given or reports made to the Enterprise by an independent certified
public accountant, an appraiser, investment banker or other expert selected with reasonable care by
the Enterprise or its board of directors or any committee of the board of directors. The provisions
of this Section 11(b) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(c) Neither the knowledge, actions nor failure to act of any other director, officer,
agent or employee of the Enterprise shall be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
(d) 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 or member of
the Board of Directors 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.
(e) 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 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
Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion by clear and convincing evidence.
12. Remedies of Indemnitee.
(a) Subject to Section 12(d), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement,
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(ii) advancement of Expenses is not timely made pursuant to Section 8 or 12(b) of this Agreement, (iii)
no determination of entitlement to indemnification shall have been made pursuant to Section 10 of
this Agreement within 90 days after the later of the receipt by the Company of the request for
indemnification or the final disposition of the Proceeding, (iv) payment of indemnification
pursuant to this Agreement is not made (A) within ten days after a determination has been made that
Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to
Sections 4, 5 and 12(b) of this Agreement, within 30 days after receipt by the Company of a written
request therefor, or (v) the Company or any other person or entity takes or threatens to take any
action to declare this Agreement void or unenforceable, or institutes any litigation or other
action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or
intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by
a court of competent jurisdiction of his or her entitlement to such indemnification or advancement
of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration with
respect to his or her entitlement to such indemnification or advancement of Expenses, to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing
clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her
rights under Section 4 of this Agreement. The Company shall not oppose Indemnitee’s right to seek
any such adjudication or award in arbitration in accordance with this Agreement.
(b) Neither (i) the failure of the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel or stockholders to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor (ii) an actual determination by the Company, its board of
directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders
that Indemnitee has not met the applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the
event that a determination shall have been made pursuant to Section 10 of this Agreement that
Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration,
on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In
connection with any determination (including a determination by the Court of Chancery of the State
of Delaware (or other court of competent jurisdiction)) with respect to entitlement to
indemnification hereunder, the Company shall, to the fullest extent not prohibited by law, have the
burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be, and any decision that Indemnitee is not entitled to indemnification or advancement of
Expenses must be supported by clear and convincing evidence.
(c) To the fullest extent permissible under applicable law, the Company shall indemnify
Indemnitee against all Expenses that are incurred by Indemnitee in connection with any action for
indemnification or advancement of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company to the extent
Indemnitee is successful in such action, and, if requested by Indemnitee, shall (as soon as
reasonably practicable, but in any event no later than 60 days, after receipt by the Company of a
written request therefor) advance such Expenses to Indemnitee, subject to the provisions of Section
8.
(d) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification shall be required to be made prior to the final disposition of the
Proceeding.
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13. Contribution.
(a) To the fullest extent permissible under applicable law, whether or not the indemnification
provided in Sections 2, 3, 4, or 6 hereof is available, in respect of any threatened, pending or
completed Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined
in such Proceeding), the Company shall pay, in the first instance, the entire amount of any
judgment or settlement of such 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 Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such
settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) To the fullest extent permissible under applicable law, 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 Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount
of Expenses, judgments, fines, liabilities and amounts paid in settlement actually 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 Proceeding), on the one hand, and Indemnitee, on the
other hand, from the transaction from which such 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 Proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such expenses, judgments, fines,
liabilities 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 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 claim
of contribution 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, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses,
judgments, fines or amounts paid or to be paid in settlement, 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 events and transactions giving
rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other
directors, officers, employees and agents) in connection with such events and transactions.
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14. Non-exclusivity. The rights of indemnification and to receive advancement of Expenses 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 Company’s certificate of incorporation or
bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. To the
extent that a change in Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses 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 Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change,
subject to the restrictions expressly set forth herein or therein. Except as expressly set forth
herein, 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. Except as
expressly set forth herein, 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.
Notwithstanding anything in this Agreement to the contrary, the indemnification and contribution
provided for in this Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of Indemnitee or Indemnitee’s agents.
15. Primary Responsibility. The Company acknowledges that Indemnitee may have certain rights
to indemnification and advancement of expenses provided by the fund and/or certain affiliates
thereof with whom Indemnitee may be affiliated (collectively, the “Secondary Indemnitors”). The
Company agrees that, as between the Company and the Secondary Indemnitors, the Company is primarily
responsible for amounts required to be indemnified or advanced under the Company’s certificate of
incorporation or bylaws or this Agreement and any obligation of the Secondary Indemnitors to
provide indemnification or advancement for the same amounts is secondary to those Company
obligations. The Company waives any right of contribution or subrogation against the Secondary
Indemnitors with respect to the liabilities for which the Company is primarily responsible under
this Section 15. In the event of any payment by the Secondary Indemnitors of amounts otherwise
required to be indemnified or advanced by the Company under the Company’s certificate of
incorporation or bylaws or this Agreement, the Secondary Indemnitors shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee for indemnification or
advancement of expenses under the Company’s certificate of incorporation or bylaws or this
Agreement or, to the extent such subrogation is unavailable and contribution is found to be the
applicable remedy, shall have a right of contribution with respect to the amounts paid. The
Secondary Indemnitors are express third-party beneficiaries of the terms of this Section 15.
16. No Duplication of Payments. Subject to the provisions of Section 15 above, the Company
shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has
otherwise actually received payment for such amounts under any insurance policy, contract,
agreement or otherwise.
17. Insurance. To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, trustees, general partners, managing members,
officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall
be covered by such policy or policies to the same extent as the most favorably-insured persons
under such policy or policies in a comparable position.
18. Subrogation. 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, who shall
execute all
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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.
19. Services to the Company. Indemnitee agrees to serve as a director or officer of the
Company or, at the request of the Company, as a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is
duly elected or appointed or until Indemnitee tenders his or her resignation or is removed from
such position. Indemnitee may at any time and for any reason resign from such position (subject to
any other contractual obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any
employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and
Indemnitee may be discharged at any time for any reason, with or without cause, with or without
notice, except as may be otherwise expressly provided in any executed, written employment contract
between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing
formal severance policies adopted by the Company’s board of directors or, with respect to service
as a director or officer of the Company, the Company’s certificate of incorporation or bylaws or
the DGCL. No such document shall be subject to any oral modification thereof.
20. Duration. This Agreement shall continue until and terminate upon the later of (a) ten
years after the date that Indemnitee shall have ceased to serve as a director or officer of the
Company or as a director, trustee, general partner, managing member, officer, employee, agent or
fiduciary of any other Enterprise, as applicable; or (b) one year after the final termination of
any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights
of indemnification or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 12 of this Agreement relating thereto.
21. Successors. This Agreement shall be binding upon the Company and its successors and
assigns, 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, and shall inure to the
benefit of Indemnitee and Indemnitee’s heirs, executors and administrators.
22. Severability. Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable law. The Company’s
inability, pursuant to court order or other applicable law, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (ii) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (iii) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
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23. Enforcement. The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve
as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director or officer of the Company.
24. Entire Agreement. 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; provided, however, that this Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s certificate of incorporation and bylaws and applicable
law.
25. Modification and Waiver. No supplement, modification or amendment to this Agreement shall
be binding unless executed in writing by the parties hereto. No amendment, alteration or repeal of
this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect of
any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such
amendment, alteration or repeal. No waiver of any of the provisions of this Agreement shall
constitute or be deemed a waiver of any other provision of this Agreement nor shall any waiver
constitute a continuing waiver.
26. Notices. All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or
electronic mail or otherwise delivered by hand, messenger or courier service addressed:
(a) if to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail address as
shown on the signature page of this Agreement or in the Company’s records, as may be updated in
accordance with the provisions hereof; or
(b) if to the Company, to the attention of the Chief Executive Officer or Chief Financial
Officer of the Company at c/o Xxxxx Xxxxx, Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxx., Xxx
Xxxx, XX 00000 or at such other current address as the Company shall have furnished to the
Investors.
Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given (i) if delivered by hand, messenger or courier service, when
delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after deposit with the courier), (ii) if
sent via mail, at the earlier of its receipt or five days after the same has been deposited in a
regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as
aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via
electronic mail, when directed to the relevant electronic mail address, if sent during normal
business hours of the recipient, or if not sent during normal business hours of the recipient, then
on the recipient’s next business day.
27. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, 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 Delaware Court of
Chancery, 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
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of the Delaware Court of Chancery for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to
service of process in the State of Delaware, The Corporation Trust Company, Wilmington, Delaware as
its agent in the State of Delaware as such party’s agent for acceptance of legal process in
connection with any such action or proceeding against such party with the same legal force and
validity as if served upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in the Delaware Court of
Chancery, and (v) waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court of Chancery has been brought in an improper or
inconvenient forum.
28. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be 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 counterparts, each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
29. Captions. 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.
(signature page follows)
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The parties are signing this Indemnification Agreement as of the date stated in the
introductory sentence.
| COMPANY CLOVIS ONCOLOGY, INC. |
||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| (Signature) | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| (Print name) | ||||
| President and Chief Executive Officer | ||||
| (Title) | ||||
| INDEMNITEE |
||||
| /s/ Xxxx X. Xxxx | ||||
| (Signature) | ||||
| Xxxx X. Xxxx | ||||
| (Print name) | ||||
| (Street address) | ||||
| (City, State and ZIP) | ||||
