PROGENICS PHARMACEUTICALS, INC. INDEMNIFICATION AGREEMENT
Exhibit
10.6
PROGENICS
PHARMACEUTICALS, INC.
This
Indemnification Agreement ("Agreement") is made and entered into as of this
1st
day of January, 2007, by and between Progenics Pharmaceuticals, Inc., a Delaware
corporation (the "Corporation"), and ______________ (the
"Indemnitee").
WHEREAS,
the Corporation recognizes that competent and experienced persons are
increasingly reluctant to serve as directors or officers of publicly-held
corporations, unless they are protected by comprehensive liability insurance
or
indemnification, or both, due to increased exposure to litigation costs and
risks arising out of their service to and activities on behalf of such
corporation;
WHEREAS,
the Corporation, after reasonable investigation, has determined that the
liability insurance coverage presently available to the Corporation may be
inadequate in certain circumstances to cover all possible exposure for which
the
Indemnitee should be protected;
WHEREAS,
the Board of Directors of the Corporation (the "Board") has determined that
the
inability to attract and retain such persons is detrimental to the best
interests of the Corporation and its stockholders. The Corporation believes
that
these interests would be best served by a combination of such insurance and
the
indemnification by the Corporation of the directors and officers of the
Corporation;
WHEREAS,
the Corporation’s By-laws require the Corporation to indemnify its directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law
(the “DGCL”), under which the Corporation is organized. The By-laws further
expressly provide that the indemnification provisions set forth therein are
not
exclusive and that contracts with regard to indemnification may be entered
into
between the Corporation and its directors and officers;
WHEREAS,
Section 145 of the DGCL (“Section 145”) allows the Corporation to indemnify its
officers, directors, employees and agents by agreement and to indemnify persons
who serve, at the request of the Corporation, as directors, officers, employees,
agents or fiduciaries of other corporations or enterprises, and expressly
provides that the indemnification provided by Section 145 is not
exclusive;
WHEREAS,
the Board has determined that it is reasonable and prudent for the Corporation
to obligate itself contractually to indemnify such persons as set forth herein
and that such contractual indemnification promotes the best interests of the
Corporation and its stockholders;
WHEREAS,
the Corporation desires and has requested Indemnitee to serve or continue to
serve as a director or officer (or both) of the Corporation, and has requested
or may in the future request Indemnitee to serve as a director, officer,
employee, agent or fiduciary of another corporation or other enterprise, in
any
event free from undue concern that he will not be adequately indemnified against
unwarranted claims for damages arising out of or related to such services to
the
Corporation;
WHEREAS,
Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Corporation on the condition that he be
indemnified according to the terms of this Agreement; and
WHEREAS,
this Agreement is a supplement to and in furtherance of Article XII of the
By-laws of the Corporation, any rights granted under the Certificate of
Incorporation of the Corporation and any resolutions adopted pursuant thereto
and shall neither be deemed to be a substitute therefor nor to diminish or
abrogate any rights of Indemnitee thereunder.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Corporation and Indemnitee do hereby covenant and agree as
follows:
Section
1. Definitions.
For
purposes of this Agreement:
(a) "Corporate
Status" means the status of a person attained by virtue of being a
director,
officer,
employee, agent or fiduciary of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the
Corporation.
(b) "Disinterested
Director" means a director of the Corporation who is not at the time a party
to
the Proceeding in respect of which indemnification is being sought by
Indemnitee.
(c) "Expenses"
means all reasonable attorneys' fees and related disbursements, appeal bonds,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, retainers, other out-of pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party and all other disbursements
or
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defending, investigating, or being or
preparing to be a witness in a Proceeding.
(d) "Independent
Legal Counsel" means a law firm or a member of a law firm that is experienced
in
matters of corporation law and who has not represented the Corporation or
related organization, or a director, officer, member of a committee of the
board
or employee, whose indemnification is in issue. Notwithstanding the foregoing,
the term “Independent Legal 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 Corporation or Indemnitee in
an
action to determine Indemnitee’s right to indemnification under this
Agreement.
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(e) "Proceeding"
means the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative.
Section
2. Services
by Indemnitee.
Indemnitee agrees to serve, or continue to serve, as a director or officer
(or
both) of the Corporation, and, at the Corporation’s request, to serve, or
continue to serve, as a director, officer, employee, agent or fiduciary of
other
corporations and enterprises. Indemnitee may at any time and for any reason
resign from any such position (subject to any other contractual obligation
or
any obligation imposed by operation of law).
Section
3. General
Indemnification.
The
Corporation hereby agrees to indemnify and hold harmless (including, without
limitation, by advancement of Expenses) Indemnitee to the fullest extent
permitted by, and in the manner permissible under applicable law as it presently
exists or may hereafter be amended. In addition to (but not in duplication
of)
the foregoing right to indemnification, the general right to indemnification
set
forth in Article XII of the Corporation’s By-laws and any other rights of
indemnification to which Indemnitee is entitled under applicable law or
otherwise, the Corporation hereby agrees to provide Indemnitee the specific
rights to indemnification set forth in Section 4 through Section 10 of this
Agreement.
Section
4. Indemnification
for a Proceeding, etc.
(a) Proceedings
Other Than Proceedings by or in the Right of the Corporation.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4(a) if, by reason of his Corporate Status, he is, or is threatened
to
be made, a party to or participant in any threatened, pending or completed
Proceeding, other than a Proceeding by or in the right of the Corporation.
Pursuant to this Section 4(a), Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he acted in good faith
and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful. For purposes of this
Agreement, “fines” shall include, without limitation, excise taxes assessed
against Indemnitee with respect to an employee benefit plan.
(b) Proceedings
by or in the Right of the Corporation.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4(b) if, by reason of his Corporate Status, he is, or is threatened
to
be made, a party to or participant in any threatened, pending or completed
Proceeding brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section 4(b), Indemnitee shall be indemnified
against Expenses actually and reasonably incurred by him or on his behalf in
connection with any such Proceeding if he acted in good faith and in a manner
he
reasonably believed to be in or not opposed to the best interests of the
Corporation. Notwithstanding the foregoing, if applicable law so provides,
no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in any such Proceeding as to which Indemnitee shall have been
finally adjudged to be liable to the Corporation unless and to the extent that
the Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that such
indemnification may nevertheless be made by the Corporation.
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(c) Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. For purposes of this
Agreement and without limiting the foregoing, if any action, suit or proceeding
is disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Corporation, (iii) a plea of
guilty or nolo contendere
by
Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith
and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the purposes hereof
to
have been wholly successful with respect thereto.
If
Indemnitee is not wholly successful in such Proceeding, but is successful,
on
the merits or otherwise, as to one or more, but less than all claims, issues
or
matters in such Proceeding, the Corporation shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter.
(d) Additional
Indemnity.
In
addition to, and without regard to any limitations on, the indemnification
provided for in Sections 4(a) through 4(c), the Corporation shall and hereby
does indemnify and hold harmless Indemnitee against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf if, by reason of his Corporate Status he is, or is
threatened to be made, a party to or participant in any Proceeding (including,
without limitation, a Proceeding by or in the right of the Corporation). The
only limitation that shall exist upon the Corporation’s obligations pursuant to
this Agreement shall be that the Corporation shall not be obligated to make
any
payment to Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections 6, 7 and 8 hereof) to be
unlawful under Delaware law.
(e)
Contribution in the Event of Joint Liability.
(i) Whether
or not the indemnification provided in Sections 4(a) through 4(d) hereof is
available, in respect of any threatened, pending or completed action, suit
or
proceeding in which the Corporation is jointly liable with Indemnitee (or would
be if joined in such action, suit or proceeding), the Corporation shall pay,
in
the first instance, the entire amount of any judgment or settlement of such
action, suit or Proceeding without requiring Indemnitee to contribute to such
payment, and the Corporation hereby waives and relinquishes any right of
contribution it may have against Indemnitee. The Corporation shall not enter
into any settlement of any action, suit or proceeding in which the Corporation
is jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding) unless such settlement provides for a full and final release of
all
claims asserted against Indemnitee.
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(ii) Without
diminishing or impairing the obligations of the Corporation 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 action, suit or proceeding in which Corporation
is jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), the Corporation shall contribute to the amount of Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
and paid or payable by Indemnitee in proportion to the relative benefits
received by the Corporation and all officers, directors or employees of the
Corporation other than Indemnitee who are jointly liable with him (or would
be
if joined in such action, suit or proceeding), on the one hand, and Indemnitee,
on the other hand, from the transaction from which such action, suit or
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 Corporation and all officers,
directors or employees of the Corporation other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, in connection
with the events that resulted in such Expenses, judgments, fines or settlement
amounts, as well as any other equitable considerations which the law may require
to be considered. The relative fault of the Corporation and all officers,
directors or employees of the Corporation other than Indemnitee who are jointly
liable with him (or would be if joined in such action, suit or 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.
(iii) The
Corporation hereby agrees to fully indemnify and hold Indemnitee harmless from
any claims of contribution which may be brought by officers, directors or
employees of the Corporation who may be jointly liable with
Indemnitee.
Section
5. Advancement
of Expenses and Costs.
If
Indemnitee is made or threatened to be made a party to a Proceeding, Indemnitee
is entitled, upon written request to the Corporation, to payment or
reimbursement by the Corporation, within twenty (20) days of receipt of the
request of all reasonable Expenses, including, without limitation, attorneys’
fees and disbursements, incurred by Indemnitee, whether prior to or after the
final disposition of the Proceeding. Such request shall evidence in reasonable
detail the Expenses incurred by Indemnitee and shall include or be preceded
or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Any advances and undertakings
to repay pursuant to this Section 5 shall be unsecured and interest free and
shall be accepted without reference to financial ability to make the repayment.
Indemnitee’s entitlement to indemnification against such Expenses shall include
those incurred in connection with any Proceeding by Indemnity seeking an
adjudication pursuant to this Agreement.
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Section
6. Determination
of Entitlement to Indemnification.
It is
the intent of this Agreement to secure for Indemnitee rights of indemnity that
are as favorable as may be permitted under the law and public policy of the
state of Delaware. Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification under this Agreement.
(a) To
obtain
indemnification (including, without limitation, the advancement of expenses
and
contribution by the Corporation) under this Agreement, Indemnitee shall submit
to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and
is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board in writing
that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 6(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made by one of the
following three methods, which shall be at the election of Indemnitee: (i)
by a
majority vote of the Disinterested Directors, even though less than a quorum,
or
(ii) by Independent Legal Counsel in a written opinion to the Board or (iii)
by
the stockholders of the Corporation.
(c) If
the
determination of entitlement to indemnification is to be made by Independent
Legal Counsel pursuant to Section 6(b) hereof, the Independent Legal Counsel
shall be selected as provided in this Section 6(c). The Independent Legal
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board). Indemnitee or the Corporation, as the
case
may be, may, within ten (10) days after such written notice of selection shall
have been given, deliver to the Corporation or to Indemnitee, as the case may
be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Legal Counsel
so selected does not meet the requirements of “Independent Legal Counsel” as
defined in Section 1(d) of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent Legal Counsel.
If a written objection is made and substantiated, the Independent Legal Counsel
selected may not serve as Independent Legal Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without
merit. If, within thirty (30) days after submission by Indemnitee of a written
request for indemnification pursuant to Section 6(a) hereof, no Independent
Legal Counsel shall have been selected and not objected to, either the
Corporation or Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Corporation or Indemnitee to the
other’s selection of Independent Legal Counsel and/or for the appointment as
Independent Legal Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent
Legal Counsel under Section 6(b) hereof. The Corporation shall pay any and
all
reasonable fees and expenses of Independent Legal Counsel incurred by such
Independent Legal Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Corporation shall pay all reasonable fees and expenses incident
to the procedures of this Section 6(c), regardless of the manner in which such
Independent Legal Counsel was selected or appointed. The Corporation shall
fully
indemnify Independent Legal Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
6
(d) The
Corporation 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 action, claim
or
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 (unless there is a preponderance
of
competent evidence to the contrary) that Indemnitee has been successful on
the
merits or otherwise in such action, suit or proceeding.
(e) Indemnitee
shall reasonably 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 Legal Counsel,
member of the Board, or stockholder of the Corporation shall act reasonably
and
in good faith in making a determination under the Agreement of Indemnitee’s
entitlement to indemnification. Any costs or Expenses (including, without
limitation, attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Corporation (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Corporation hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
Section
7. Presumptions
and Effect of Certain Proceedings.
(a) In
making
a determination with respect to entitlement for indemnification hereunder,
the
persons or entity making such determination shall presume (unless there is
clear
and convincing evidence to the contrary) that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request
for
indemnification in accordance with this Agreement.
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(b) If
the
person(s) so empowered to make such determination shall have failed to make
the
requested determination within sixty (60) days after receipt by the Corporation
of such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be absolutely entitled
to
such indemnification absent actual and material fraud; provided, however, that
such sixty (60) day period may be extended for a reasonable time, not to exceed
an additional thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
require(s) such additional time for the obtaining or evaluating of documentation
and/or information relating thereto; and provided, further, that the foregoing
provisions of this Section 7(b) shall not apply (i) if the determination of
entitlement to indemnification is to be made by the stockholders of the
Corporation pursuant to Section 6(b)(iii) of this Agreement and if (A) within
fifteen (15) days after receipt by the Corporation of the request for such
determination the Board has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within 75 days after such receipt and such determination is made thereat, or
(B)
a special meeting of stockholders is called within fifteen (15) days after
such
receipt for the purpose of making such determination, such meeting is held
for
such purpose within sixty (60) days after having been so called and such
determination is made thereat, or (ii) if the determination of entitlement
to
indemnification is to be made by Independent Legal Counsel pursuant to Section
6(b)(ii) of this Agreement.
(c) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Corporation, including, without
limitation, financial statements, or on information supplied to Indemnitee
by
the officers of the Corporation in the course of their duties, or on the advice
of legal counsel for the Corporation or on information or records given or
reports made to the Corporation by an independent certified public accountant,
by a financial advisor or by an appraiser or other expert selected with
reasonable care by the Corporation. In addition, the knowledge and/or actions,
or failure to act, of any director, officer, agent or employee of the
Corporation shall not be imputed to Indemnitee for purposes of determining
the
right to indemnification under this Agreement. Whether or not the foregoing
provisions of this Section 7 are satisfied, it shall in any event be presumed
(unless there is clear and convincing evidence to the contrary) that Indemnitee
has at all times acted in good faith and in a manner he reasonably believed
to
be in or not opposed to the best interests of the Corporation. Neither the
failure of the Corporation (including by its directors or Independent Legal
Counsel) to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation (including by its directors or Independent
Legal Counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has
not
met the applicable standard of conduct.
(d) The
termination of a Proceeding described in Section 4 hereof by judgment, order,
settlement or conviction, or upon a plea of nolo contendere
or its
equivalent, shall not, of itself, (i) establish that Indemnitee does not meet
the criteria for entitlement to indemnification set forth in Section 4 hereof
or
(ii) otherwise adversely affect the rights of Indemnitee to indemnification
except as may be provided herein. The knowledge and/or actions, or failure
to
act, of any other director, officer, trustee, partner, managing member,
fiduciary, agent or employee of the Corporation shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.
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Section
8. Remedies
of Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses.
(a) In
the
event that (i) a determination is made that Indemnitee is not entitled to
indemnification hereunder, (ii) advancement of expenses is not timely made
pursuant to Section 5 hereof, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6 hereof within ninety
(90) days after receipt by the Corporation of the request for indemnification,
(iv) payment of indemnification is not made pursuant to this Agreement within
ten (10) days after receipt by the Corporation of a written request therefor
or
(v) payment of indemnification is not made within ten (10) days following a
determination of entitlement to indemnification pursuant to Section 6 and
Section 7 hereof, Indemnitee shall be entitled to adjudicate in an appropriate
court of the State of Delaware or any other court of competent jurisdiction,
his
entitlement to such indemnification or advance. Alternatively, Indemnitee,
at
his option, may adjudicate any such entitlement in arbitration to be conducted
by a single arbitrator pursuant to the rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking an adjudication
or an award in arbitration within one hundred eighty (180) days following the
date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 8(a). In any such proceeding, the burden of proof
shall
be on the party opposing indemnification to prove that Indemnitee is not
entitled to indemnification.
(b) In
the
event that a determination shall have been made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration of the type contemplated by Section 8(a) hereof shall
be made de novo,
and
Indemnitee shall not be prejudiced by reason of a determination (if so made)
that he is not entitled to indemnification.
(c) If
a
determination is made or deemed to have been made pursuant to the terms of
Section 6 or Section 7 hereof that Indemnitee is entitled to indemnification,
the Corporation shall be bound by such determination and shall be precluded
from
asserting that such determination has not been made or that the procedure by
which such determination was made is not valid, binding and enforceable. The
Corporation further agrees to stipulate in any such court that the Corporation
is bound by all the provisions of this Agreement and is precluded from making
any assertion to the contrary.
(d) If
as a
result of an adjudication of the type contemplated by Section 8(a) hereof the
court or arbitrator shall determine that Indemnitee is entitled to any
indemnification hereunder, the Corporation shall pay all reasonable Expenses
(including attorneys’ fees) and costs actually incurred by Indemnitee in
connection with such adjudication (including, without limitation, any appellate
proceedings). If Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 8, Indemnitee shall not be required to reimburse the
Corporation for any advances pursuant to Section 5 hereof until a final
determination is made with respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or
lapsed).
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(e) The
Corporation shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by law against all expenses and, if requested by Indemnitee, shall
(within ten (10) days after the Corporation’s receipt of such written request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any judicial proceeding or arbitration brought by Indemnitee
(i)
to enforce his rights under, or to recover damages for breach of, this Agreement
or any other indemnification, advancement or contribution agreement or provision
of the Corporation’s Certificate of Incorporation or By-laws now or hereafter in
effect or (ii) for recovery or advances under any insurance policy maintained
by
any person for the benefit of Indemnitee, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance,
contribution or insurance recovery, as the case may be. Interest shall be paid
by the Corporation to Indemnitee at the legal rate under Delaware law for
amounts which the Corporation indemnifies or is obliged to indemnify for the
period commencing with the date on which Indemnitee requests indemnification
(or
reimbursement or advancement of any expenses) and ending with the date on which
such payment is made to Indemnitee by the Corporation.
Section
9. Reimbursement
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has served, by reason of his Corporate Status, as a witness in any
Proceeding, at a time when such Indemnitee has not been made a party to the
Proceeding, the Corporation shall reimburse such Indemnitee for all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.
Section
10. Other
Rights of Indemnification and Insurance.
(a) The
indemnification and advancement of expenses (including, without limitation,
attorneys’ fees) and costs provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future
be
entitled under any agreement, provision of the By-laws, or provision of the
Certificate of Incorporation, vote of stockholders or Disinterested Directors
of
the Corporation, provision of law or otherwise. No amendment, alteration or
repeal of this Agreement or any provision hereof shall be effective as to any
Indemnitee with respect to any action taken or omitted by such Indemnitee in
his
Corporate Status prior to such amendment, alteration or repeal.
(b) To
the
extent that the Corporation maintains an insurance policy or policies providing
liability insurance for directors, officers, employees or agents or fiduciaries
of the Corporation or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person serves at
the
request of the Corporation, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee or agent or
fiduciary under such policy or policies. The Corporation hereby covenants and
agrees to maintain the directors and officers insurance policy in effect on
the
date of this Agreement (the “Current D&O Policy”) on terms and subject to
conditions at least as favorable to Indemnitee as the terms and conditions
that
exist as of the date of this Agreement. In the event that, notwithstanding
the
foregoing, the Current D&O Policy is no longer in full force and effect or
is otherwise unavailable, the Corporation shall obtain and maintain a policy
or
policies of insurance providing liability insurance for Indemnitee on terms
and
subject to conditions not materially different from, and in no way less
favorable to Indemnitee than, the Current D&O Policy; provided that the
Corporation shall not be required to pay an aggregate premium for such insurance
coverage in excess of 200% of the amount of the premium for the Current D&O
Policy on the date of this Agreement, but shall, in such case, purchase as
much
coverage as possible for such amount.
10
Section
11. Duration
of Agreement.
This
Agreement shall continue until and terminate upon the later of: (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which Indemnitee served at the request of the Corporation; or (b)
the
final termination of all pending Proceedings in respect of which Indemnitee
is
granted rights of indemnification or advancement of Expenses hereunder and
or
any proceeding commenced by Indemnitee pursuant to Section 8 of this Agreement.
This Agreement shall be binding upon the Corporation and its successors and
assigns and shall inure to the benefit of Indemnitee and his heirs, executors
and administrators.
Section
12. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, all portions of any paragraphs of this Agreement containing any
such
provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and (b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that
are not themselves invalid, illegal or unenforceable) shall be construed so
as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
Section
13. Identical
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. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
Section
14. Headings.
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.
Section
15. Modification
and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any
other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
11
Section
16. Notice
by Indemnitee.
Indemnitee agrees promptly to notify the Corporation in writing upon being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject
to
indemnification or advancement of Expenses covered hereunder.
Section
17. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) delivered by hand
and
receipted for by the party to whom said notice or other communication shall
have
been directed or (b) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
(a) If
to the
Corporation, to:
Progenics
Pharmaceuticals, Inc.
000
Xxx
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
General Counsel
(b) If
to
Indemnitee, to the address shown on the signature page of this Agreement or
to
such other address as may have been furnished to Indemnitee by the Corporation
or to the Corporation by Indemnitee, as the case may be.
Section
18. Successor
and Assigns.
All of
the terms and provisions of this Agreement shall be binding upon, shall inure
to
the benefit of and shall be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors, administrators and legal
representatives. The Corporation shall require and cause any direct or indirect
successor (whether by purchase, merger, consolidation or otherwise) to all
or
substantially all of the business or assets of the Corporation, by written
agreement to assume and agree to perform this Agreement in the same manner
and
to the same extent that the Corporation would be required to perform if no
such
succession had taken place.
Section
19. Employment
Rights.
Nothing
in this Agreement is intended to create in Indemnitee any right to employment
or
continued employment.
Section
20. Service
of Process and Venue.
For
purposes of any claims or proceedings to enforce this Agreement, the Corporation
consents to the jurisdiction and venue of any federal or state court of
competent jurisdiction in the states of Delaware and New York, and waives an
agrees not to raise any defense that any such court is an inconvenient forum
or
any similar claim.
Section
21. Gender.
Use of
the masculine pronoun in this Agreement shall be deemed to include use of the
feminine pronoun where appropriate.
Section
22. Supercedes
Prior Agreement.
This
Agreement supercedes any prior indemnification agreement between Indemnitee
and
the Corporation or its predecessors.
Section
23. Governing
Law.
The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
By: _________________________________
[Name]
[Title]
I,
Xxxx
X. Xxxxx, Secretary, certify that the Board of Directors has authorized the
Corporation to enter into this Agreement by a resolution unanimously passed
at
its November 27, 2006 meeting.
_________________________________
Xxxx
X.
Xxxxx
Secretary
Date:
________________________________
