Exhibit 10.2
IMMUNEX CORPORATION
FORM OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of ______________________, 2000,
between IMMUNEX CORPORATION, a Washington corporation (the "Company"), and
_______________________, a director and/or officer of the Company (the
"Indemnitee").
RECITALS
A. Indemnitee is a director and/or officer of the Company and in such
capacity is performing valuable services for the Company.
B. The Company has adopted bylaws (the "Bylaws") providing for the
indemnification of the directors and officers of the Company to the full extent
permitted by the Business Corporation Law of Washington (the "Statute").
C. The Bylaws and the Statute specifically provide that they are not
exclusive, and thereby contemplate that contracts may be entered into between
the Company and the members of its Board of Directors and its officers with
respect to indemnification of such directors and officers.
D. In order to induce Indemnitee to serve, or to continue to serve, as a
director and/or officer of the Company, the Company has agreed to enter into
this Agreement with Indemnitee.
AGREEMENTS
In consideration of the recitals above, the mutual covenants and agreements
herein contained, and Indemnitee's continued service as a director and/or
officer after the date hereof, the parties to this Agreement agree as follows:
1. Indemnity of Indemnitee
1.1 Scope
The Company agrees to hold harmless and indemnify Indemnitee to the full
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by this Agreement, the Company's Articles of
Incorporation, the Bylaws, the Statute or otherwise. In the event of any change,
after the date of this Agreement, in any applicable law, statute or rule
regarding the right of a Washington corporation to indemnify a member of its
board of directors or an officer, such changes, to the extent that they would
expand Indemnitee's rights hereunder, shall be within the purview of
Indemnitee's rights and the
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Company's obligations hereunder, and, to the extent that they would narrow
Indemnitee's rights hereunder, shall be excluded from this Agreement; provided,
however, that any change that is required by applicable laws, statutes or rules
to be applied to this Agreement shall be so applied regardless of whether the
effect of such change is to narrow Indemnitee's rights hereunder.
1.2 Nonexclusivity
The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the Company's
Articles of Incorporation, the Bylaws, any agreement, any vote of shareholders
or disinterested directors, the Statute, or otherwise, whether as to action in
Indemnitee's official capacity or otherwise.
1.3 Included Coverage
If Indemnitee was or is made a party, or is threatened to be made a party,
to or is otherwise involved (including, without limitation, as a witness) in any
Proceeding (as defined below), the Company shall hold harmless and indemnify
Indemnitee from and against any and all losses, claims, damages, liabilities or
expenses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties, amounts paid in settlement and other expenses incurred in connection
with such Proceeding) actually and reasonably incurred or suffered by Indemnitee
in connection therewith (collectively, "Damages").
1.4 Definition of Proceeding
For purposes of this Agreement, "Proceeding" shall mean any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, in which
Indemnitee is, was or becomes involved (including, without limitation, as a
witness) by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company or that, being or having been such a director,
officer, employee or agent, Indemnitee is or was serving at the request of the
Company as a director, officer, partner, trustee, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise
(collectively, a "Related Company"), whether the basis of such proceeding is
alleged action (or inaction) by Indemnitee in an official capacity as such a
director, officer, partner, trustee, employee or agent or in any other capacity
while serving as such a director, officer, partner, trustee, employee or agent;
provided, however, that, except with respect to an action to enforce the
provisions of this Agreement, "Proceeding" shall not include any action, suit or
proceeding (or part thereof) instituted by or at the direction of Indemnitee
unless such action, suit or proceeding is or was authorized or ratified by a
majority of the disinterested directors of the Company's Board of Directors.
1.5 Determination of Entitlement
In the event that a determination of Indemnitee's entitlement to
indemnification is required pursuant to Section 23B.08.550 of the Statute or a
successor statute or pursuant to other applicable law, the appropriate decision-
maker shall make such determination;
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provided, however, that Indemnitee shall initially be presumed in all cases to
be entitled to indemnification, that Indemnitee may establish a conclusive
presumption of any fact necessary to such a determination by delivering to the
Company a declaration made under penalty of perjury that such fact is true.
1.6 Survival
The indemnification provided under this Agreement shall apply to any and
all Proceedings, notwithstanding that Indemnitee has ceased to be a director,
officer, employee, trustee or agent of the Company or a Related Company.
2. Expense Advances
2.1 Generally
The right to indemnification of Damages conferred by Section 1 shall
include the right to have the Company pay Indemnitee's expenses in any
Proceeding as such expenses are incurred and in advance of such Proceeding's
final disposition (such right is referred to hereinafter as an "Expense
Advance").
2.2 Conditions to Expense Advance
The Company's obligation to provide an Expense Advance is subject to the
following conditions:
2.2.1 Undertaking
If the Proceeding arose in connection with Indemnitee's service as a
director or an officer of the Company (and not in any other capacity in which
Indemnitee rendered service, including service to any Related Company), then
Indemnitee or his or her representative shall execute and deliver to the Company
an undertaking, which need not be secured and shall be accepted without
reference to Indemnitee's financial ability to make repayment, by or on behalf
of Indemnitee to repay all Expense Advances if and to the extent that it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that Indemnitee is not entitled to be indemnified for
such Expense Advance under this Agreement or otherwise.
2.2.2 Cooperation
Indemnitee shall give the Company such information and cooperation as it
may reasonably request and as shall be within Indemnitee's power.
2.2.3 Affirmation
Indemnitee shall furnish, upon request by the Company and if required under
applicable law, a written affirmation of Indemnitee's good faith belief that any
applicable standards of conduct have been met by Indemnitee.
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3. Procedures for Enforcement
3.1 Enforcement
In the event that a claim for indemnity, an Expense Advance or otherwise is
made hereunder and is not paid in full within 60 days (20 days for an Expense
Advance) after written notice of such claim is delivered to the Company,
Indemnitee may, but need not, at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim (an "Enforcement Action").
3.2 Presumptions in Enforcement Action
In any Enforcement Action the following presumptions (and limitation on
presumptions) shall apply:
(a) The Company shall conclusively be presumed to have entered into this
Agreement and assumed the obligations imposed on it hereunder in order to induce
Indemnitee to continue as a director and/or officer of the Company;
(b) Neither (i) the failure of the Company (including the Company's Board
of Directors, independent or special legal counsel or the Company's
shareholders) to have made a determination prior to the commencement of the
Enforcement Action that indemnification of Indemnitee is proper in the
circumstances nor (ii) an actual determination by the Company, its Board of
Directors, independent or special legal counsel or shareholders that Indemnitee
is not entitled to indemnification shall be a defense to the Enforcement Action
or create a presumption that Indemnitee is not entitled to indemnification
hereunder; and
(c) If Indemnitee is or was serving as a director, officer, employee,
trustee or agent of a corporation of which a majority of the shares entitled to
vote in the election of its directors is held by the Company or in an executive
or management capacity in a partnership, joint venture, trust or other
enterprise of which the Company or a wholly owned subsidiary of the Company is a
general partner or has a majority ownership, then such corporation, partnership,
joint venture, trust or enterprise shall conclusively be deemed a Related
Company and Indemnitee shall conclusively be deemed to be serving such Related
Company at the request of the Company.
3.3 Attorneys' Fees and Expenses for Enforcement Action
In the event Indemnitee is successful in whole or in part in an Enforcement
Action, the Company shall indemnify and hold harmless Indemnitee against all of
Indemnitee's fees and expenses in bringing and pursuing such Enforcement Action
(including attorneys' fees at any stage, including on appeal); provided,
however, that the Company shall not be required to provide such indemnity for
such attorneys' fees or expenses if a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee in such Enforcement
Action was not made in good faith or was frivolous.
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4. Limitations on Indemnity; Mutual Acknowledgment
4.1 Limitation on Indemnity
No indemnity pursuant to this Agreement shall be provided by the Company:
(a) On account of any suit in which a final, unappealable judgment is
rendered against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended;
or
(b) For Damages that have been paid directly to Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Company.
4.2 Mutual Acknowledgment
The Company and Indemnitee acknowledge that, in certain instances, federal
law or public policy may override applicable state law and prohibit the Company
from indemnifying Indemnitee under this Agreement or otherwise. In all such
cases, the Company shall have no indemnification obligation hereunder. For
example, the Company and Indemnitee acknowledge that the Securities and Exchange
Commission (the "SEC") has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal legislation prohibits indemnification for certain ERISA violations.
Furthermore, Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the SEC to submit
the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
5. Notification and Defense of Claim
5.1 Notification
Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee shall, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company shall not relieve the Company
from any liability which it may have to Indemnitee under this Agreement unless
and only to the extent that such omission can be shown to have prejudiced the
Company's ability to defend the Proceeding.
5.2 Defense of Claim
With respect to any such Proceeding as to which Indemnitee notifies the
Company of the commencement thereof:
(a) The Company may participate therein at its own expense;
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(b) The Company, jointly with any other indemnifying party similarly
notified, may assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election so to
assume the defense thereof, the Company shall not be liable to Indemnitee under
this Agreement for any legal or other expenses (other than reasonable cost of
investigation) subsequently incurred by Indemnitee in connection with the
defense thereof unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded, with
the concurrence of the Company, which shall not be unreasonably withheld, that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of 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 shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee with
the Company's consent shall have made the conclusion provided for in (ii) above;
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected without
the Company's written consent;
(d) The Company shall not settle any action or claim in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent;
(e) Neither the Company nor Indemnitee shall unreasonably withhold its,
his or her consent to any proposed settlement; and
(f) Any requirement for the Company's consent or concurrence set forth in
this Section 5.2 shall be satisfied by obtaining the consent of a majority of
the disinterested directors of the Company's Board of Directors.
6. 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, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provision of this Agreement shall be severable, as provided in
this Section 6. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
7. Governing Law; Binding Effect; Amendment and Termination
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Washington.
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(b) This Agreement shall be binding upon Indemnitee and upon the Company,
its successors and assigns, and shall inure to the benefit of Indemnitee,
Indemnitee's heirs, personal representatives and assigns and to the benefit of
the Company, its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
IMMUNEX CORPORATION
By
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Its
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INDEMNITEE:
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(Printed Name)
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