EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Agreement is made this _____ day of __________, 2000, between
Tanox, Inc., a Delaware corporation (the "Company") and
________________________ ("Agent").
RECITALS
1. The Agent is serving as a director, officer, employee or other agent of
the Company or, at the request of the Company, another corporation or
enterprise, and the Company desires the Agent to continue to serve in this
capacity.
2. The Company and the Agent recognize that qualified persons are often
reluctant to serve publicly-held corporations as directors, officers, employees
or agents of such corporations or, at the request of such corporations, other
corporations or enterprises, unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate risks of claims
and actions against them arising out of their service to, and activities on
behalf of, the corporation.
3. The Company's board of directors has determined that the inability to
attract and retain qualified persons would be detrimental to the best interests
of the Company's stockholders and that the Company should act to assure these
persons that there will be increased certainty of adequate protection in the
future.
4. The Company has adopted bylaws (the "Bylaws") providing for
indemnification of the directors, officers, employees and other agents of the
Company, including persons serving at the request of the Company in these
capacities with other corporations or enterprises, to the fullest extent
permitted under the Delaware General Company Law (the "GCL").
5. The bylaws, and the GCL, by their non-exclusive nature, permit
contracts between the Company and its directors, officers, employees and other
agents with respect to indemnification.
6. To induce the Agent to continue to serve as a director, officer,
employee or other agent of the Company or, at the request of the Company, other
corporations or enterprises, the Company has determined it to be in its best
interest to enter into this Agreement to indemnify the Agent to the fullest
extent permitted by law.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Agent agree as follows:
ARTICLE 1. AGREEMENT TO SERVE
Agent will serve at the will of the Company as a director, officer,
employee or other agent of the Company or, at the request of the Company, other
corporations or enterprises, faithfully and to the best of her or his ability so
long as she or he is duly elected and qualified unless she or he is removed or
terminated in accordance with applicable law or until such time as she or he
tenders her or his resignation in writing.
ARTICLE 2. INDEMNIFICATION
2.1 INDEMNITY OF AGENT. In consideration of the Agent's service to the
Company, the Company hereby agrees to hold harmless and indemnify Agent to the
full extent authorized or permitted by the provisions of the Bylaws and the GCL,
as same may be amended from time to time (but only to the extent that such
amendment permits the Company to provide broader indemnification rights than the
Bylaws or the GCL permitted before adoption of such amendment).
2.2 ADDITIONAL INDEMNITY. Subject only to the exclusions set forth in
Paragraph 2.3, the Company hereby further agrees to hold harmless and indemnify
Agent against:
(a) any and all expenses (including attorneys' fees), fees, damages,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Agent in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or
on behalf of the Company) to which Agent is, was or at any time
becomes a party, or is threatened to be made a party, by reason of
the fact that Agent is, was or at any time becomes a director,
officer, employee or agent of the Company, or is or was serving or
at any time serves at the request of the Company as a director,
officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Agent by the
Company under the non-exclusivity provisions of the GCL and the
Bylaws.
2.3 LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Paragraph 2.2 may be paid by the Company:
(a) if indemnity is not lawful (and, in this respect, both the Company
and Agent have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising
under the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification should
be submitted to appropriate courts for adjudication);
(b) if judgment is rendered against Agent for an accounting of profits
made from the purchase or sale by Agent of securities of the Company
pursuant to the provisions of
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Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state or local law;
(c) if Agent's conduct is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful or
intentional misconduct;
(d) if Agent's conduct is established by a final judgment as
constituting a breach of Agent's duty of loyalty to the Company or
resulting in any personal profit or advantage to which Agent was not
legally entitled;
(e) for which payment is actually made to Agent under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any
excess beyond payment under such insurance, clause, bylaw or
agreement; or
(f) in connection with any proceeding (or part thereof) initiated by
Agent, or any proceeding by Agent against the Company or its
directors, officers, employees or other agents, unless (i) such
indemnification is expressly required to be made by law, or (ii) the
proceeding was authorized by the Board of Directors of the Company.
2.4 CONTRIBUTION. If the indemnification provided in Paragraphs 2.1 and
2.2 is unavailable and may not be paid to Agent for any reason other than those
set forth in Paragraph 2.3, then in respect to any threatened, pending or
completed action, suit or proceeding in which the Company is jointly liable with
Agent (or would be if joined in such action, suit or proceeding), the Company
shall contribute to the amount of expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
and paid or payable by Agent in such proportion as is appropriate to reflect (i)
the relative benefits received by the Company on the one hand and by Agent on
the other hand from the transaction from which such action, suite or proceeding
arose, and (ii) the relative fault of the Company on the one hand and of Agent
on the other hand in connection with the events that resulted in such expenses,
judgements, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of Agent
on the other hand shall be determined by reference to, among other things, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Paragraph 2.4 were determined by pro
rata allocation or any other method of allocation that does not take account of
the foregoing equitable considerations.
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2.5 CONTINUATION OF OBLIGATIONS.
(a) All agreements and obligations of the Company contained herein shall
continue during the period Agent is a director, officer, employee or
agent of the Company or (or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as Agent shall be subject to
any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal or investigative, by reason
of the fact that Agent was serving in any capacity referred to
herein.
(b) If Agent is deceased and is entitled to indemnification under any
provision of this Agreement, the Company shall indemnify Agent's
estate and her or his spouse, heirs, administrators and executors
against, and the Company shall, and does hereby agree to, assume any
and all expenses (including attorneys' fees), penalties and fines
actually and reasonably incurred by or for Agent or her or his
estate, in connection with the investigation, defense, settlement or
appeal of any such action, suit or proceeding. Further, when
requested in writing by the spouse of Agent, and/or the heirs,
executors or administrators of Agent's estate, the Company shall
provide appropriate evidence of the Company's agreement set out
herein, to indemnify Agent against and to itself assume such costs,
liabilities and expenses.
2.6 NOTIFICATION AND DEFENSE OF CLAIM. Not later than 30 days after
receipt by Agent of notice of the commencement of any action, suit or
proceeding, Agent must, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company of the commencement thereof.
Agent's omission so to notify the Company will relieve the Company from any
liability that it may have to her or him under this Agreement. However, such
omission will not relieve the Company from any obligation it may have to Agent
other than under this Agreement.
With respect to any such action, suit or proceeding as to which Agent
notifies the Company of the commencement thereof:
(a) The Company may participate therein at its own expense;
(b) Except as otherwise provided below, to the extent that it may wish,
the Company, jointly with any other indemnifying party similarly
notified, may assume the defense thereof, with counsel reasonably
satisfactory to Agent. After notice from the Company to Agent of the
Company's election to assume the defense as provided above, the
Company will not be liable to Agent under this Agreement for any
legal or other expenses subsequently incurred by Agent in connection
with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Agent may employ
counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of
its assumption
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of the defense thereof shall be at the expense of Agent unless (i)
the employment of counsel by Agent has been authorized by the
Company, (ii) Agent shall have reasonably concluded that there may
be a conflict of interest between the Company and Agent in
conducting the defense of such action or (iii) the Company shall not
in fact have employed counsel to assume the defense of such action,
in each of which cases the fees and expenses of counsel shall be at
the expense of the Company. The Company may not assume the defense
of any action, suit or proceeding brought by or on behalf of the
Company or as to which Agent shall have made the conclusion provided
for in (ii) above; and
(c) The Company shall not be required to indemnify Agent under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company may not settle any
action or claim in any manner that would impose any penalty or
limitation on Agent without her or his written consent. Neither the
Company nor Agent will unreasonably withhold its consent to any
proposed settlement.
2.7 ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) If Agent employs her or his own counsel pursuant to Paragraph
2.6(b)(i) through (iii) above, the Company shall advance to Agent
any and all reasonable expenses (including legal fees and expenses)
incurred in investigating or defending any threatened or pending
action, suit or proceeding, whether civil, criminal, administrative
or investigative, within ten (10) days after receiving from Agent
copies of invoices for such expenses and prior to any final
disposition of any such action, suit or proceeding.
(b) Agent agrees that she or he will reimburse the Company for all
reasonable expenses paid by the Company in defending any civil or
criminal action, suit or proceeding against Agent if and only to the
extent it shall be ultimately determined that Agent is not entitled,
under the provisions of the GCL, the Bylaws, this Agreement or
otherwise, to be indemnified by the Company for such expenses.
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2.8 ENFORCEMENT.
(a) Any right to indemnification or advances granted by this Agreement
to Agent shall be enforceable by or on behalf of Agent in any court
of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of
such claim is made within ninety (90) days of request therefor.
Agent, in such enforcement action, if successful in whole or in
part, shall be entitled to be paid also the expense of prosecuting
her or his claim. It shall be a defense to any action for which a
claim for indemnification is made under this Agreement (other than
an action brought to enforce a claim for expenses pursuant to
Section 2.7, provided that the required undertaking has been
tendered to the Company) that Agent is not entitled to
indemnification because of the limitations set forth in Section 2.3.
Neither the failure of the Company (including its Board of Directors
or its stockholders) to have made a determination prior to the
commencement of such enforcement action that indemnification of
Agent is proper in the circumstances, nor an actual determination by
the Company (including its Board of Directors or its stockholders)
that such indemnification is improper shall be a defense to the
action or create a presumption at Agent is not entitled to
indemnification under this Agreement or otherwise.
(b) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on the Company
hereby to induce Agent to serve as a director, officer, employee or
other agent of the Company or, at the request of the Company, other
corporations or enterprises, and acknowledges that she or he is
relying upon this Agreement in serving in such capacity.
(c) If Agent is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such
action, the Company shall reimburse Agent for all of her or his
reasonable fees and expenses in bringing and pursuing such action.
2.9 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 Agent, who shall execute all documents required and shall do all
acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
2.10 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Agent by this
Agreement shall not be exclusive of any other right which Agent may have or
hereafter acquire under any statute, provision of the Company's Certificate of
Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in her or his official capacity and as to action in
another capacity while holding office.
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ARTICLE 3. MISCELLANEOUS PROVISIONS
3.1 SEPARABILITY. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
of this Agreement is held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provisions.
3.2 BINDING EFFECT. This Agreement shall be binding upon Agent and upon
the Company, its successors and assigns, and shall inure to the benefit of
Agent, her or his heirs, personal representatives and assigns and to the benefit
of the Company, its successors and assigns. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or
assetsCompany,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.
3.3 AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
3.4 GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
3.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
together constitute a single instrument.
3.6 HEADINGS. The headings of paragraphs in this Agreement are for
convenience only and shall not be deemed to constitute part of this Agreement or
affect the construction thereof.
3.7 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication was
directed or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage
prepaid:
(a) if to Agent, at the address indicated on the signature page
hereof; and
(b) if to the Company, to:
Tanox, Inc.
10301 Stella Link
Xxxxxxx, Xxxxx 00000
Attn: President
Facsimile: (000) 000-0000;
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or to such other address as may have been furnished to Agent by the Company as
provided in this paragraph.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
