DIRECTOR INDEMNITY AGREEMENT
Exhibit
10.19
This
Agreement is made and entered into as of this 1st day of
January, 2010, by and between Novavax, Inc., a Delaware corporation (the
“Company”), and _______________________
(“Indemnitee”), who is currently serving the Company in the capacity of a
director and/or officer thereof.
WITNESSETH:
WHEREAS,
the Company and Indemnitee recognize that the interpretation of ambiguous
statutes, regulations and court opinions and of the Amended and Restated
Certificate of Incorporation, as amended (the “Certificate of Incorporation”)
and Amended and Restated By-laws, as amended (the “By-laws”) of the Company, and
the vagaries of public policy, are too uncertain to provide directors and
officers of the Company with adequate or reliable advance knowledge or guidance
with respect to the legal risks and potential liabilities to which they become
personally exposed as a result of performing their duties in good faith for the
Company; and
WHEREAS,
the Company and the Indemnitee are aware that highly experienced and capable
persons are often reluctant to serve as directors and officers of a corporation
unless they are protected to the fullest extent permitted by law by
comprehensive insurance or indemnification; and
WHEREAS,
the General Corporation Law of the State of Delaware, which sets forth certain
provisions relating to the mandatory and permissive indemnification of, and
advancement of expenses to, officers and directors of a Delaware corporation by
such corporation, is specifically not exclusive of other rights to which those
indemnified thereunder may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, and, thus, does not by
itself limit the extent to which the Company may indemnify persons serving as
its officers and directors, provided such persons have met the applicable
standard of conduct; and
WHEREAS,
the Company desires to have Indemnitee continue to serve as a director and/or
officer of the Company, and, if applicable, to serve in any other capacity as
agreed by the Company and the Indemnitee, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of his or her acting in good faith in the performance of
his or her duty to the Company; and Indemnitee desires to continue to serve
(provided that he or she is furnished the indemnity provided for hereinafter) as
a director and/or officer of the Company and, if applicable, to serve in any
other capacity as agreed by the Indemnitee and the Company; and
WHEREAS,
after due consideration and investigation of the terms and provisions of this
Agreement and the various other options available to the Company and the
Indemnitee in lieu thereof, the Board of Directors of the Company has determined
that the following Agreement is reasonable and prudent, and necessary to obtain
or retain Indemnitee’s service to and on behalf of the Company.
1
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Indemnitee, intending to be
legally bound, do hereby agree as follows:
1. Agreement to Serve. Indemnitee
agrees to continue to serve as a director and/or officer of the Company and, as
Indemnitee and the Company may agree, in any other capacity for the Company
and/or as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, for so long as he or she
is duly elected or appointed and qualified in accordance with the provisions of
the General Corporation Law of the State of Delaware and the Certificate of
Incorporation and By-laws of the Company, or until such time as he or she
tenders a resignation. The Company acknowledges that the Indemnitee is relying
on this Agreement in so serving.
2. Definitions. As used in this
Agreement:
(a) The
term “Proceeding” shall mean any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative (including an action by or in the right of the Company), any
appeal in such an action, suit, or proceeding, and any inquiry or investigation
that could lead to such an action, suit or proceeding. The final disposition of
a Proceeding shall be as determined by a settlement or the judgment of a court
or other investigative or administrative body. The Board of Directors shall not
make a determination as to the final disposition of a Proceeding.
(b) “Change
in Control” means a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule
or form) promulgated under the Securities Exchange Act of 1934, as amended (the
“Act”), whether or not the Company is then subject to such reporting
requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Act), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 15% or more of the
combined voting power of the Company’s then outstanding securities without the
prior approval of at least a majority of the members of the Board of Directors
of the Company in office immediately prior to such person attaining such
percentage interest; (ii) there occurs a proxy contest, or the Company is a
party to a merger, consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least a majority of the members of the Board
of Directors of the Company then in office, as a consequence of which members of
the Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or
(iii) during any period of two consecutive years, other than as a result of
an event described in clause (ii) of this subsection (b), individuals who
at the beginning of such period constituted the Board of Directors of the
Company (including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was approved by a vote of
at least a majority of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
2
(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) The
term “Expenses” includes, without limitation, all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees 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, or being or preparing to be a witness in
a Proceeding. Expenses also shall include 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 its equivalent.
(e) “Independent
Counsel” means a law firm, or a 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 with respect to matters
concerning the Indemnitee under this Agreement, or of 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. The Company
agrees to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(f) References
to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any (i) excise taxes assessed with respect to any
employee benefit plan and (ii) penalties; 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 acts in good
faith and in a manner he or she reasonably believed to be in the interest 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.
3
3. Indemnity in Third Party Proceedings.
Subject to Sections 8 and 9, the Company shall indemnify, defend and
hold harmless Indemnitee to the fullest extent permitted or required by the laws
of the State of Delaware in effect as of the date hereof or as such laws may
from time to time hereafter be amended to increase the scope of such permitted
indemnification, if Indemnitee was or is a party or is threatened to be made a
party to any Proceeding (other than a Proceeding by or in the right of the
Company) by reason of the fact that Indemnitee is or was a director and/or
officer of the Company, 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, 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, provided the
Indemnitee acted 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 and, in
the case of a criminal Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful. Indemnitee shall have the right to employ
Indemnitee’s own legal counsel in any Proceeding for which indemnification is
available under this Section 3, subject to Section 8
below.
4. Indemnity in Proceedings By or In the
Right of the Company. Subject to Sections 8 and 9, the Company shall
indemnify, defend and hold harmless Indemnitee to the fullest extent permitted
or required by the laws of the State of Delaware in effect as of the date hereof
or as such laws may from time to time hereafter be amended to increase the scope
of such permitted indemnification, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a director and/or officer of the Company, 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, against all
Expenses actually and reasonably incurred by Indemnitee (or on his or her
behalf) in connection with the defense or settlement of such Proceeding or any
claim, issue or matter therein, provided the
Indemnitee acted 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 and, in
the case of a criminal Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful, and except that no indemnification shall be
made under this Section 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company unless and
only to the extent that the Delaware Court of Chancery or other court in which
such Proceeding was brought or is pending, 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 indemnity for such
Expenses as the Delaware Court of Chancery or other court in such Proceeding
shall deem proper. Indemnitee shall have the right to employ Indemnitee’s own
legal counsel in any Proceeding for which indemnification is available under
this Section 4, subject to Section 8 below.
4
5. Reimbursement for Expenses of a
Witness. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of the fact that Indemnitee is or was a
director and/or officer of the Company, 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, a witness at the
Company’s request in any Proceeding to which Indemnitee is not a party, he or
she shall be reimbursed against all Expenses actually and reasonably incurred by
Indemnitee (or on his or her behalf) in connection therewith upon Indemnitee’s
written request therefor.
6. Indemnification for Expenses of
Successful Party. Notwithstanding any other provision of this Agreement
to the contrary, to the extent that Indemnitee has been successful on the merits
or otherwise (whether partially or in full) in defense of any Proceeding
referred to in Sections 3 and/or 4 of this Agreement, or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee (or on his or her
behalf) in connection therewith. For purposes of this Section 6, and
without limitation, the termination of any claim, issue or matter in any
Proceeding referred to in Sections 3 and/or 4 of this Agreement by
dismissal shall be deemed to be a successful result as to such claim, issue or
matter.
7. Advances of Expenses.
Indemnitee shall have the right to advancement by the Company prior to
the final disposition of any Proceeding or any claim, issue or other matter
therein of any and all Expenses incurred by Indemnitee in defense of such
Proceeding or any claim, issue or other matter therein. Without limiting the
generality or effect of the foregoing, within 10 business days after any request
by Indemnitee, the Company shall, in accordance with such request, (a) pay
such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in
an amount sufficient to pay such Expenses or (c) reimburse Indemnitee for
such Expenses; provided that
Indemnitee shall repay any amounts actually advanced to Indemnitee that, at the
final disposition of the Proceeding to which the advance related, were in excess
of amounts paid or payable by Indemnitee in respect of Expenses relating to,
arising out of or resulting from such Proceeding; and provided further the Company
receives an undertaking by or on behalf of Indemnitee (“Indemnitee Undertaking”)
to repay such amount paid, advanced or reimbursed to the extent that it is
ultimately determined that Indemnitee is not entitled to be indemnified by the
Company. The Indemnitee Undertaking shall be substantially on the form of
Exhibit A to this Agreement and shall be accepted without reference to the
financial ability of the Indemnitee to make such repayment.
5
8. Notice and Defense of a Proceeding.
As a condition precedent to the right to be indemnified or receive
advancement of Expenses, the Indemnitee must notify the Company in writing as
soon as practicable of any Proceeding for which indemnity will or could be
sought. With respect to any such Proceeding of which the Company is so notified,
the Company will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Company to the Indemnitee of
its election so to assume such defense, the Company shall not be liable to the
Indemnitee for any legal or other Expenses subsequently incurred by the
Indemnitee in connection with such Proceeding, other than as provided in this
Section 8. The Indemnitee shall have the right to employ his or her own
counsel in connection with such Proceeding, but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of the Indemnitee unless (i) the employment
of counsel by the Indemnitee has been authorized by the Company, (ii) counsel to
the Indemnitee shall have reasonably concluded that there may be a conflict of
interest or position on any significant issue between the Company and the
Indemnitee in the conduct of the defense of such Proceeding, 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 other Expenses of counsel for the
Indemnitee shall be at the expense of and borne by the Company, except as
otherwise expressly provided by this Agreement, and in no event shall the
Company be required to bear the expense of more than one counsel for all
Indemnitees with respect to a Proceeding. The Company shall not be entitled,
without the consent of the Indemnitee, to assume the defense of any Proceeding
brought by or in the right of the Company or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
9. Procedure
for Determination of Entitlement to Indemnification.
(a) To
obtain indemnification or advancement of Expenses under this Agreement,
Indemnitee shall submit to the Company a written request therefor, including in
such request such documentation and information as is reasonably available to
the Indemnitee and is reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification or advancement of
Expenses.
(b) It
is the express intention of the parties that the Indemnitee be entitled to
indemnification hereunder to the fullest extent permitted by Delaware law.
Without limiting the generality or effect of the immediately preceding sentence,
and without excluding any other basis upon which Indemnitee may be found to be
entitled to indemnification hereunder, the Indemnitee shall be entitled to
indemnification hereunder if (i) Indemnitee acted 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 and, in the case of a criminal Proceeding, had no
reasonable cause to believe that Indemnitee’s conduct was unlawful, or
(ii) Indemnitee has been successful on the merits or otherwise in defense
of any Proceeding or any claim, issue or matter therein.
6
(c) Upon
written request by Indemnitee for indemnification pursuant to Section 9(a)
hereof, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in the specific case: (i) if
a Change in Control shall have occurred, by Independent Counsel in a written
opinion to the Board of Directors of the Company, a copy of which shall be
delivered to Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board of Directors of the Company, or
(B) if there are no Disinterested Directors or, if the Disinterested
Directors so direct, by Independent Counsel in a written opinion to the Board of
Directors of the Company, a copy of which shall be delivered to Indemnitee, or
(C) a majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote for directors, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to the Proceeding
in question, or (D) a court of competent jurisdiction. If it is so
determined that Indemnitee is entitled to indemnification hereunder, payment to
Indemnitee shall be made within 60 days after receipt by the Company of the
request for indemnification required pursuant to Section 9(a) hereof. Any costs
or expenses (including reasonable attorneys’ fees and disbursements) incurred by
Indemnitee in cooperating with the person, persons or entity making the
determination discussed in this Section 9(c) with respect to Indemnitee’s
entitlement to indemnification, 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.
(d) In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(c) hereof, the Independent Counsel
shall be selected as provided in this Section 9(d). If a Change in Control
shall not have occurred, the Independent Counsel shall be selected by the Board
of Directors of the Company, and the Company shall give written notice to
Indemnitee advising him or her of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors of the Company, in which event the
preceding sentence shall apply), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may, within
10 days after such written notice of selection shall have been given,
deliver to the Company 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 Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in
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 Counsel. If such written objection is so made
and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 9(c) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition a court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company or Indemnitee to the other’s selection of Independent Counsel and/or for
the appointment as Independent 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 Counsel under this Section 9.
7
(e) Indemnitee
will be deemed a party to a Proceeding for all purposes hereof if Indemnitee is
named as a defendant or respondent in a complaint or petition for relief in that
Proceeding, regardless of whether Indemnitee is ever served with process or
makes an appearance in that Proceeding.
10. Presumptions
and Effect of Certain Provisions.
(a) Neither
the failure of the Company (including its Board of Directors or Independent
Counsel) to have made a determination prior to the commencement of any action
pursuant to Section 11 of this Agreement that indemnification is proper in
the circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Company (including its Board of Directors or
Independent 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.
(b) If
the person, persons or entity empowered or selected under Section 9 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within 60 days after receipt by the Company
of a request for indemnification, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not misleading, in connection with the request for
indemnification, which if such fact were previously known, the Indemnitee would
not have been entitled to indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such
60-day period may be extended for a reasonable time, not to exceed an additional
60 days, if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto.
(c) 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, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner that 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, had reasonable cause to believe that his or her conduct was
unlawful.
8
(d) For
purposes of any determination of whether Indemnitee acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, Indemnitee had no
reasonable cause to believe his or her conduct was unlawful (collectively, “Good
Faith”), Indemnitee shall be deemed to have acted in Good Faith if, with respect
to Indemnitee’s action, Indemnitee relied in good faith on the records or books
of account of the Company and any other corporation, partnership, joint venture,
trust, or other enterprise of which Indemnitee is or was serving at the request
of the Company as a director, officer, employee or agent (“Enterprise”), or on
information, opinions, reports or statements, including financial statements and
other financial information, concerning the Enterprise or any other Person which
were prepared or supplied to Indemnitee by: (i) one or more officers or
employees of the Enterprise; (ii) appraisers, engineers, investment bankers,
legal counsel or other Persons as to matters Indemnitee reasonably believed were
within the professional or expert competence of those Persons and who have been
selected with reasonable care by or on behalf of the Company or Enterprise; and
(iii) any committee of the Board of Directors or equivalent managing body
of the Enterprise of which Indemnitee is or was, at the relevant time, not a
member. The provisions of this Section 10(d) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which the Indemnitee may be
deemed to have met the applicable standard of conduct set forth in this
Agreement.
(e) The
knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
11. Remedies
of Indemnitee.
(a) In
the event that (i) a determination is made pursuant to Section 9 of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made within the time period provided in Section
9(c) after receipt by the Company of the written request for indemnification,
(iv) reimbursement or payment of indemnification is not made pursuant to
Section 5, Section 6 and/or Section 9(b)(ii), within 60 days
after receipt by the Company of a written request therefor, or (v) payment
of indemnification pursuant to Section 3 or Section 4 of this
Agreement is not timely made after a determination has been made, or deemed to
have been made, that Indemnitee is entitled to indemnification, Indemnitee shall
be entitled to an adjudication by the Delaware Court of Chancery or a court of
competent jurisdiction of his or her entitlement to such indemnification or
advancement of Expenses and appeals therefrom, concluding in a final and
unappealable judgment by the highest court in Delaware. The Board of Directors
shall not make a determination as to the final disposition of such
adjudication.
9
(b) In
the event that a determination shall have been made pursuant to Section 9
of this Agreement that Indemnitee is not entitled to indemnification, any
judicial proceeding commenced pursuant to this Section 11 shall be
conducted in all respects as a de novo trial on the merits and Indemnitee shall
not be prejudiced by reason of that adverse determination.
(c) If
a determination shall have been made pursuant to Section 9 of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding commenced pursuant to
this Section 11, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement
not misleading, in connection with the request for indemnification, which if
such fact were previously known, the Indemnitee would not have been entitled to
indemnification or (ii) a prohibition of such indemnification under
applicable law.
(d) In
the event that Indemnitee, pursuant to this Section 11, seeks a judicial
adjudication of his or her rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 2(d) of this Agreement)
actually and reasonably incurred by Indemnitee in such judicial
adjudication.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 11 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court that the Company is bound by all the provisions of this
Agreement.
12. Indemnification and Advancement of
Expenses Under this Agreement Not Exclusive; Survival of Rights. 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 be entitled under the Certificate of Incorporation or By-laws of
the Company, any other agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware, or otherwise.
No amendment or alteration of this Agreement or of any provision hereof shall
limit or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee prior to such amendment or
alteration. To the extent that a change in the General Corporation Law of the
State of Delaware, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Certificate of Incorporation of the Company 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. 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. 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.
10
13. Partial Indemnification. If
Indemnitee is entitled under any provision of this Agreement to indemnification
or to receive advancement by the Company for a portion of the Expenses,
judgments, fines, penalties or 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, but not, however, for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
14. Rights Continued. The rights
of indemnification and to receive advancement of Expenses as provided by this
Agreement shall continue as to Indemnitee even though Indemnitee may have ceased
to be a director or officer of the Company, and shall inure to the benefit of
Indemnitee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
15. No Construction as an Employment
Agreement or Any Other Commitment. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ
or as an officer of the Company or any of its subsidiaries, if Indemnitee
currently serves as an officer of the Company, or to be renominated or reelected
as a director of the Company, if Indemnitee currently serves as a director of
the Company.
16. Liability Insurance. For the
duration of Indemnitee’s service as a director and/or officer of the Company,
and thereafter for so long as Indemnitee shall be subject to any pending or
possible Proceeding or of any claim, issue or matter therein, the Company shall
use commercially reasonable efforts (taking into account the scope and amount of
coverage available relative to the cost thereof) to cause to be maintained in
effect policies of directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Company that is at least
substantially comparable in scope and amount to that provided by the Company’s
current policies of directors’ and officers’ liability insurance. Indemnitee
shall be covered by such policy or policies in accordance with its or their
terms.
17. No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment
of amounts otherwise indemnifiable under this Agreement if, and to the extent
that, Indemnitee is entitled to or has otherwise actually received such payment
under any contract, agreement or insurance policy, the Certificate of
Incorporation or By-laws of the Company, or otherwise. Indemnitee hereby
releases the Company and its respective authorized representatives from any
claims for indemnification hereunder if and to the extent that Indemnitee
receives proceeds from any liability insurance policy or other third-party
source in payment or reimbursement for such Proceeding or claims. Indemnitee
hereby agrees to assign all proceeds Indemnitee receives under any such
insurance policy or third-party agreement to the extent of the amount of
indemnification made to Indemnitee under the terms of this
Agreement.
11
18. Subrogation. In the event of
payment under this Agreement, the Company shall be subrogated to the extent of
such payment to all the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including without limitation the execution of such documents as may be
necessary to enable the Company effectively to bring suit to enforce such
rights.
19. Exceptions. Notwithstanding
any other provision in this Agreement, but except as provided in
Section 11(d), the Company shall not be obligated pursuant to the terms of
this Agreement, to indemnify or advance Expenses to Indemnitee with respect to
any Proceeding, or any claim, issue or matter therein, (i) brought or made
by Indemnitee, unless the bringing of such Proceeding or the making of such
claim, issue or matter shall have been approved by the Board of Directors of the
Company, (ii) in which a final judgment is rendered against Indemnitee for
an accounting of profits made from the purchase and sale or the sale and
purchase by Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of any federal, state or local statute, (iii) if a final
adjudication establishes that the Indemnitee’s acts or omissions involved a
breach of Indemnitee’s fiduciaries duties or intentional misconduct, fraud or a
knowing violation of the law, or (iv) charging an improper personal benefit
to Indemnitee and Indemnitee is adjudged liable on that basis, unless, in each
case, the Delaware Court of Chancery or other court in which such Proceeding was
brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses.
20. Notices. Any notice or other
communication required or permitted to be given or made to the Company or
Indemnitee pursuant to this Agreement shall be given or made in writing
(a) three business days after being deposited in the United States mail,
with return receipt requested and postage thereon prepaid, (b) upon
delivery, when delivered personally or by overnight national courier or express
delivery, or (c) upon delivery, when sent by facsimile and provided
confirmation of receipt is obtained, addressed to the person to whom such notice
or communication is directed at the address of such person on the records of the
Company. Any such notice or communication to the Company shall be addressed to
the Secretary of the Company at the address of the Company’s principal executive
office set forth in the Company’s most recent periodic or current filing under
the Act.
21. Contractual Rights. The right
to be indemnified or to receive advancement of Expenses under this Agreement
(i) is a contract right based upon good and valuable consideration,
pursuant to which Indemnitee may xxx, (ii) is and is intended to be
retroactive and shall be available as to events occurring prior to the date of
this Agreement, and (iii) shall continue after any rescission or
restrictive modification of this Agreement as to events occurring prior
thereto.
12
22. Severability. If any provision
or provisions of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. To the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provisions held invalid, illegal or unenforceable, and any provision or
provisions held to be invalid, illegal or unenforceable for any reason
whatsoever 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.
23. Successors; Binding Agreement.
The Company shall use its commercially reasonable efforts to cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise to all or substantially all of the business or assets of the Company),
by written agreement in form and substance reasonably satisfactory to
Indemnitee, to expressly 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. As used in this Agreement, “Company” shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided for
in this Section 23 or that otherwise becomes bound by the terms and
provisions of this Agreement by operation of law. This Agreement shall be
binding upon the Company and its successors and assigns (including, without
limitation, any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company).
24. Counterparts,
Modification, Headings, Gender.
(a) This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
instrument, and either party hereto may execute this Agreement by signing any
such counterpart.
(b) No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by
Indemnitee and an appropriate authorized officer of the Company. No waiver by
any party at any time of any breach by any other party of, or compliance with,
any condition or provision of this Agreement to be performed by any other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or at any prior or subsequent time.
(c) Section
headings are not to be considered part of this Agreement, are solely for
convenience of reference, and shall not affect the meaning or interpretation of
this Agreement or any provision set forth herein.
(d) Pronouns
in masculine, feminine and neuter genders shall be construed to include any
other gender, and words in the singular form shall be construed to include the
plural and vice versa, unless the context otherwise requires.
13
25. Exclusive Jurisdiction; Governing
Law. The Company and Indemnitee agree that all disputes in any way
relating to or arising under this Agreement, including, without limitation, any
action for advancement of Expenses or indemnification, shall be litigated, if at
all, exclusively in the Delaware courts, and if necessary, the corresponding
appellate courts. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to its principles
of conflicts of laws. The Company and Indemnitee (i) expressly submit
themselves to the personal jurisdiction of the Delaware courts for purposes of
any action or proceeding arising out of or in connection with this Agreement,
(ii) irrevocably appoint, to the extent such party is not a resident of the
State of Delaware, CT Corporation Systems, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, 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, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware courts, and
(iv) waive, and agree not to plead or to make, any claim that any such
action or proceeding brought in the Delaware courts has been brought in an
improper or otherwise inconvenient forum.
26. Duration of Agreement. This
Agreement shall continue until and terminate upon the later of: (a) six
years after the date that Indemnitee shall have ceased to serve as a director
and/or officer of the Company or director, officer, employee or agent of any
other corporation, partnership, joint venture, trust, or other enterprise which
Indemnitee served at the request of the Company; or (b) one year after the
final, nonappealable termination of any Proceeding 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 11 of this Agreement relating thereto.
27.
Contribution. If it is
established, under Section 9 or otherwise, that Indemnitee has the right to
be indemnified under this Agreement in respect of any claim, but that right is
unenforceable by reason of applicable law or public policy, then, to the fullest
extent applicable law permits, the Company, in lieu of indemnifying or causing
the indemnification of Indemnitee under this Agreement, will contribute to the
amount Indemnitee has incurred, whether for judgments, fines, penalties, excise
taxes, amounts paid or to be paid in settlement or for Expenses reasonably
incurred, in connection with that Proceeding, in such proportion as is deemed
fair and reasonable in light of all the circumstances of that Proceeding in
order to reflect:
(a) the
relative benefits Indemnitee and the Company have received as a result of the
event(s) or transactions(s) giving rise to that Proceeding; or
14
(b) the
relative fault of Indemnitee and of the Company and its other functionaries in
connection with those event(s) or transaction(s).
28. Effect of Federal Law. Both
the Company and Indemnitee acknowledge that in certain instances, federal law
will override Delaware law and prohibit the Company from indemnifying its
officers and directors. The Company and Indemnitee specifically acknowledge that
the Securities and Exchange Commission has taken the position that
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal law prohibits indemnification for certain
violations of the Employee Retirement Income Security Act.
29. Savings Clause. 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
provisions of this Agreement (including any provision within a single section,
paragraph or sentence) shall be severable in accordance with this
Section 29. If this Agreement or any portion thereof shall be invalidated
on any ground by any court of competent jurisdiction, the Company shall
nevertheless indemnify Indemnitee as to Expenses, judgments, fines and penalties
with respect to any Proceeding to the fullest extent permitted by any applicable
portion of this Agreement that shall not have been invalidated or by any other
applicable law, and this Agreement shall remain enforceable to the fullest
extent permitted by law.
IN
WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement as of
the date and year first above written.
|
NOVAVAX,
INC.
|
||
|
By:
|
||
|
Xxxxx
Xxxxxxx
|
||
|
President
and Chief
|
||
|
Executive
Officer
|
||
|
INDEMNITEE
|
||
|
Print
Name:
|
||
15
EXHIBIT
A
INDEMNITEE’S
UNDERTAKING
___________, 20__
Novavax,
Inc.
0000
Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Re: Indemnity
Agreement
Ladies
and Gentlemen:
Reference
is made to the Indemnity Agreement dated as of January 1, 2010 by and between
Novavax, Inc. and the undersigned Indemnitee (the “Agreement”), and particularly
to Section 7 thereof relating to the advancement by the Company of certain
Expenses incurred by the undersigned Indemnitee. Capitalized terms used and not
otherwise defined in this Indemnitee’s Undertaking shall have the respective
meanings given to such terms in the Agreement.
The types
and amounts of Expenses incurred by or on behalf of the undersigned Indemnitee
are itemized on Attachment I to this Indemnitee’s Undertaking. The undersigned
Indemnitee hereby requests that the total amount of these Expenses (the
“Advanced Amount”) be paid by the Company in advance of the final disposition of
such Proceeding in accordance with the Agreement.
The
undersigned Indemnitee hereby agrees to repay the Advanced Amount to the Company
to the extent that it is determined, following the final disposition of such
Proceeding and in accordance with Section 9, that the undersigned
Indemnitee is not entitled to be indemnified therefor by the
Company.
|
Very
truly yours,
|
|
|
Signature
|
|
|
Name
of Indemnitee (Type or Print)
|
16
ATTACHMENT
I TO
INDEMNITEE’S
UNDERTAKING
ITEMIZATION
OF
TYPES AND AMOUNTS OF
EXPENSES
Attached
hereto are receipts, statements or invoices for the following qualifying
Expenses which Indemnitee represents have been incurred by Indemnitee in
connection with a Proceeding:
Type Amount
1.
Total
Advanced Amount
17
