INDEMNIFICATION AGREEMENT
Exhibit 10.5
This Indemnification Agreement (this “Agreement”) is made as of this day of , 2005 by
and between La Jolla Pharmaceutical Company (the “Company”) and
(“Indemnitee”).
RECITALS
WHEREAS, the Board of Directors has determined that in order to attract and retain qualified
persons as directors and officers of the Company, it is in the best interests of the Company and
its stockholders to indemnify such persons for claims and actions against them arising out of their
service to and activities on behalf of the Company;
WHEREAS, the bylaws of the Company provide for indemnification of its officers and directors
to the fullest extent permitted by applicable law, and the Company wishes to clarify and enhance
the rights and obligations of the Company and Indemnitee with respect to indemnification;
WHEREAS, the Company has elected to follow the corporate governance practices and procedures
of the Delaware General Corporation Law (the “DGCL”), as the same may be amended from time to time;
WHEREAS, in order to induce and encourage experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the Company and in any other capacity
with respect to the Company, and to otherwise promote the desirable end that such persons will
resist what they consider unjustified lawsuits and claims made against them in connection with the
good faith performance of their duties to the Company, with the knowledge that certain costs,
judgments, penalties, fines, liabilities and expenses incurred by them in their defense of such
litigation will be borne by the Company and that they will receive the maximum protection against
such risks and liabilities as may be afforded by applicable law, the Board of Directors of the
Company has determined that this Agreement is reasonable, prudent and necessary to promote and
ensure the best interests of the Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee continue to serve as a director or officer of
the Company free from undue concern for unpredictable, inappropriate or unreasonable legal risks
and personal liabilities by reason of Indemnitee acting in good faith in the performance of
Indemnitee’s duties to the Company; and Indemnitee desires to continue to serve the Company.
NOW, THEREFORE, in consideration of Indemnitee’s continued service as a director or officer of
the Company, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by the DGCL and the bylaws of the Company, as each may
be amended from time to time. In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a) Third party proceedings. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1(a) if, by reason of his Corporate Status (as defined in
Section 15), he is, or is threatened to be made, a party to or participant in any
Proceeding (as defined in Section 15) other than a Proceeding by or in the right of the Company. Pursuant to this
Section 1(a), and to the
extent allowed by applicable law, Indemnitee shall be indemnified
against all Expenses (as defined in Section 15), judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf in connection with 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 Company and, with respect
to any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful.
(b) Proceedings by or in the right of the Company. Indemnitee shall be entitled to the rights
of indemnification provided in this Section 1(b) if, by reason of his Corporate Status, he
is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection with 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 Company; provided,
however, that, if applicable law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Company unless, and only 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 upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such costs, judgments, penalties, fines, liabilities and Expenses as such court
shall deem proper.
(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 a Proceeding and is successful, on the merits or otherwise, in
any such Proceeding, he shall be indemnified to the maximum extent permitted by applicable law
against all Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. 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 Company 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. For purposes of this Section and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
(d) Additional Indemnity. Notwithstanding any limitation in Section 1(a), (b) or (c),
the Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a
party to or threatened to be made a party to any Proceeding (including a Proceeding by or on behalf
of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with the
Proceeding; provided that, indemnification of Indemnitee shall be made by the Company only as
authorized in the specific case upon a determination that the indemnification of Indemnitee is
proper under the circumstances because Indemnitee met the applicable standard of conduct. For
purposes of this Section 1(d), the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to:
(i) to the fullest extent permitted by the provisions of the DGCL that authorize or
contemplate additional indemnification by agreement (or the corresponding provision of any
amendment to or successor or substitute provision of the DGCL); and
(ii) to the fullest extent authorized or permitted by any amendment to the DGCL or by any
successor or substitute rule, law or provision adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify it officers and directors.
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2. Exclusions. Notwithstanding any provision of Section 1 to the contrary, no
indemnity shall be paid by the Company:
(a) with respect to remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation of law;
(b) on account of any suit in which judgment is rendered against Indemnitee for an accounting
of profits made from the purchase or sale 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 statutory law;
(c) on account of Indemnitee’s conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful misconduct; or
(d) if a final decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
3. Contribution. If the indemnification provided in Section 1 is unavailable
and may not be paid to Indemnitee for any reason (other than those set forth in Section 2(a),
(b) and (c)), then with respect to any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount
of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee to the extent allowed by applicable law, in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the one hand and by the
Indemnitee on the other hand from the transaction from which such Proceeding arose and (ii) the
relative fault of the Company on the one hand and of the Indemnitee on the other hand in connection
with the events which resulted in such Expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company on the one hand and
of the Indemnitee on the other hand shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
the circumstances resulting in such Expenses, judgments, fines or settlement amounts. The Company
agrees that it would not be just and equitable if contribution pursuant to this Section 3
were determined by pro rata allocation or any other method of allocation which does not take
account of the foregoing equitable considerations.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, to
the extent allowed by applicable law, the Company shall advance all reasonable Expenses incurred by
or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate
Status within twenty (20) days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements (i) shall reasonably evidence the
Expenses incurred by Indemnitee, (ii) shall include or be accompanied by such documentation and
information as is reasonably requested by the Company to determine the nature of the Proceeding and
whether Indemnitee is entitled to the advancement of Expenses, and (iii) shall include or be
preceded 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. Notwithstanding the foregoing, the obligation of the Company to advance Expenses
pursuant to this Section 5 shall be subject to the condition that, if, when
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and to the extent that the Company determines that Indemnitee would not be permitted to be
indemnified under applicable law, the Company shall be entitled to be reimbursed, within sixty (60)
days of such determination, by Indemnitee (who hereby agrees to reimburse the Company) for all such
amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made by the Company that
Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any advance of Expenses until a final
judicial determination is made with respect thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed).
6. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company 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 Chief Executive Officer of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification; provided that, if the Chief Executive
Officer is making such request, then the notice to the Board of Directors shall be given by the
Secretary of the Company.
(b) Upon written request by Indemnitee for indemnification, a determination with respect to
Indemnitee’s entitlement thereto shall be made by the following person or persons who shall be
empowered to make such determination: (i) the Board of Directors by a majority vote of a quorum of
Disinterested Directors (as defined in Section 15); (ii) by Independent Counsel (as defined
in Section 15) in a written opinion to the Board of Directors (a copy of which shall be
delivered to Indemnitee) if a quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, said Disinterested Directors so direct; or
(iii) if so directed by said Disinterested Directors, by the stockholders of the Company. If it is
determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within fifteen (15) days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board of Directors, or stockholder of the
Company shall act reasonably and in good faith in making a determination under this Agreement of
the Indemnitee’s entitlement to indemnification. Any Expenses incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company to the extent allowed by applicable law (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as
provided in this Section 6(c). The Independent Counsel shall be selected by the Board of
Directors (subject to this Section 6(c)), and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected. Indemnitee may,
within seven (7) days after receipt of such written notice of selection, deliver to the Company a
written objection to such selection; provided, however, 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 Section 15 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 Counsel. If a written objection is made and
substantiated, the Independent Counsel 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,
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within twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a) hereof, (i) an Independent Counsel has not been
selected or (ii) an Independent Counsel has been selected, but there is an outstanding written
objection regarding the independence of the Independent Counsel selected by the Company, either the
Indemnitee or the Company may petition a court of competent jurisdiction for resolution of any
objection which shall have been made by Indemnitee to the Company’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 Section
6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant to Section
6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which such Independent Counsel
was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 8(a) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
7. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 6(a) of this Agreement and the Company shall have the burden of
proof to overcome that presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected under Section 6 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company of the request therefor, the
requisite determination of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be entitled to such indemnification (i) absent actual and material fraud in the
request for 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 thirty (30) 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 documentation and/or information relating thereto; and provided, further, that the
foregoing provisions of this Section 7(b) shall not apply (i)(A) if the determination of
entitlement to indemnification is to be made by the stockholders pursuant to Section 6(b)
of this Agreement and (B)(1) if, within fifteen (15) days after receipt by the Company of the
request for such determination, the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their consideration at an
annual meeting thereof to be held within seventy five (75) days after such receipt and such
determination is made thereat or (2) a special meeting of stockholders is called within thirty (30)
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 Counsel
pursuant to Section 6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement (with or without court approval), conviction, or upon a plea of no lo contendere
or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
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(d) For purposes of any determination of good faith, 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 Enterprise
(as defined in Section 15), including financial statements, or on information supplied to
Indemnitee by the directors, officers or key employees of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Enterprise. In addition, 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. The provisions of this Section 7(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.
8. Remedies of Indemnitee.
(a) In the event that (i) payment of contribution or indemnification is not made pursuant to
Section 3 or Section 4 of this Agreement, respectively, within fifteen (15) days
after receipt by the Company of a written request therefor, (ii) advancement of Expenses is not
timely made pursuant to Section 5 of this Agreement, (iii) a determination of entitlement
to indemnification shall not have been made pursuant to Section 6(b) of this Agreement
within the time frames described in Section 7(b), (iv) a determination is made pursuant to
Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, or (v) payment of indemnification is not made within fifteen (15) days after a
determination has been made that Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Section 6 or Section 7 of this Agreement,
respectively, Indemnitee shall be entitled to an adjudication in an appropriate court of the State
of Delaware, or in any other court of competent jurisdiction, of his entitlement to such
indemnification. Alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 8(a). The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 8 shall be conducted in all respects as a de
novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination.
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 8, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 8, seeks a judicial
adjudication of or an award in arbitration to enforce his 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 actually and reasonably incurred by him in
such judicial adjudication or arbitration, but only if he prevails therein. If it shall be
determined in said judicial adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification sought, the expenses incurred by Indemnitee in connection with
such judicial adjudication or arbitration shall be appropriately prorated. The Company shall
indemnify Indemnitee against any and all expenses
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and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefor) advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee to recover under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advancement of expenses or insurance
recovery, as the case may be.
(e) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 8 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
9. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
bylaws or certificate of incorporation of the Company, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal 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 in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute
or judicial decision, permits greater indemnification than would be afforded currently under the
Company’s bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change. 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.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company, 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 under such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
10. Exception to Right of Indemnification. Notwithstanding any other provision of
this Agreement, Indemnitee shall not be entitled to indemnification under this Agreement with
respect to any Proceeding or claim therein brought voluntarily by Indemnitee and not by way of
defense, unless (a) the bringing of such Proceeding or making of such claim shall have been
approved by the Board of Directors or (b) such Proceeding is being brought by the Indemnitee to
assert his rights under this Agreement.
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11. Notification and Defense of Claim. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena, complaints, indictment,
information or other document relating to any Proceeding or matter which may be subject to indemnification
covered hereunder. The failure to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or otherwise. Notwithstanding
any other provision of this Agreement, with respect to any such Proceeding of which Indemnitee
notifies the Company:
(a) The Company will be entitled to participate therein at its own expense;
(b) Except as otherwise provided in this Section 11(b), to the extent that it may
wish, the Company, together with any other indemnifying party similarly notified, shall be entitled
to assume the defense thereof, with counsel reasonably 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 Expenses subsequently incurred by
Indemnitee in connection with the defense thereof except as otherwise provided below. Indemnitee
shall have the right to employ Indemnitee’s own counsel in 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 Indemnitee unless (i) the employment of counsel by Indemnitee
has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded 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 the
action, in each of which cases the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above; and
(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. The
Company shall not settle any Proceeding in any manner that would impose any penalty or limitation
on or disclosure obligation with respect to Indemnitee without Indemnitee’s written consent.
Neither the Company nor Indemnitee will unreasonably withhold its consent to any proposed
settlement.
12. Duration of Agreement. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is an officer or director 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) and shall continue thereafter
so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under
Section 8 hereof) by reason of his Corporate Status, whether or not he is acting or serving
in any such capacity at the time any liability or expense is incurred for which indemnification can
be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an officer or director of the Company or any other Enterprise at the
Company’s request.
13. Security. To the extent requested by the Indemnitee and approved by the Board of
Directors, the Company may at any time and from time to time provide security to the Indemnitee for
the Company’s obligations hereunder through an irrevocable blank line of credit, funded trust or
other collateral. Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of the Indemnitee.
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14. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer
or director of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral written and
implied, between the parties hereto with respect to the subject matter hereof.
15. Definitions. For purposes of this Agreement:
(a) “Corporate Status” describes the status of a person who is or was a director, officer,
employee or agent or fiduciary of the Company or of any other corporation, partnership joint
venture, trust, employee benefit plan or other Enterprise which such person is or was serving at
the express written request of the Company.
(b) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding with respect to which indemnification is sought by Indemnitee.
(c) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the
express written request of the Company as a director, officer, employee, agent or fiduciary.
(d) “Expenses” shall include 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, participating, or being or preparing to be a witness in, or
otherwise participating in a Proceeding.
(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. 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.
(f) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a
director, officer employee or agent of the Company, by reason of any action taken by him or of any
inaction on his part while acting as a director, officer employee or agent of the Company, or by
reason of the fact that he 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; in
each case whether or not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement; including one
pending on or before the date of this Agreement; and excluding one initiated by an Indemnitee pursuant to Section 8 of this Agreement to
enforce his rights under this Agreement.
9
16. Severability. If any provision or provisions of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
17. Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both 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.
18. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted
for by the party to whom said notice or other communication shall have been directed, or (ii)
mailed by certified or registered mail with postage prepaid, on the third business day after the
date postmarked. Addresses for notice to either party are as provided below, or as subsequently
modified by written notice
(a) If to Indemnitee, to:
(b) If to the Company, to:
La Jolla Pharmaceutical Corporation
Attention: Corporate Secretary
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
(c) With a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
19. 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. Signatures transmitted electronically or by facsimile will be deemed
original signatures.
20. Headings; References; Pronouns. 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. References herein to section numbers are to sections of this
Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as appropriate.
21. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be brought only in the state courts of the State of
Delaware.
22. 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 without application of
the conflict of laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| LA JOLLA PHARMACEUTICAL COMPANY | ||||||||
| By: | ||||||||
| Xxxxxx X. Xxxxx | ||||||||
| Chairman and Chief Executive Officer | ||||||||
| INDEMNITEE | ||||||||
| Signature: | ||||||||
| Print Name: | ||||||||
