NABI BIOPHARMACEUTICALS
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EXHIBIT 10.34
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into this 25th day
of November, 2002, between Nabi Biopharmaceuticals (the "Company") and Xxxxxx
Xxxxxxxxx (the "Indemnitee"), and is effective retroactively to the date of hire
of the Indemnitee by Company.
PRELIMINARY STATEMENT
The board of directors of the Company has determined that highly
competent persons will be difficult to retain unless they are adequately
protected against liabilities incurred in performance of their services on
behalf of the Company, and the Company's By-laws authorize the Company to enter
into and perform Indemnification Agreements for this purpose.
Therefore, the board of directors has determined that it is in the best
interests of the Company to attract and retain persons such as the Indemnitee by
providing adequate protection against such liabilities by means of
Indemnification Agreements with persons such as the Indemnitee.
NOW, THEREFORE, in consideration of the promises and covenants
contained herein and as an inducement to the Indemnitee to continue as an
employee of the Company, the Company and the Indemnitee, intending to be legally
bound, do hereby agree as follows:
1. The Indemnitee agrees to serve as an employee of the
Company until the Indemnitee's resignation by written notice to the
Company or the Indemnitee's removal, whichever occurs earliest.
2. The Company agrees to indemnify and hold harmless the
Indemnitee, with respect to any action taken or omitted by the
Indemnitee while serving as an employee of the Company, to the fullest
extent permissible under applicable law, as such law may be amended or
supplemented from time to time. The Indemnitee's indemnification rights
shall include but not be limited to the rights contained in the
following paragraphs, except to the extent expressly prohibited by
applicable law.
3. The Company shall indemnify and hold harmless the
Indemnitee from and against expenses (including attorneys' fees and
disbursements), judgments, damages, fines (including any excise taxes
assessed on a person with respect to an employee benefit plan) and
amounts paid in settlement actually and reasonably incurred by the
Indemnitee in connection with any threatened, pending or contemplated
action, suit or proceeding, or appeal thereof, whether civil, criminal
or administrative, or in connection with any internal or external
investigation (other than an action by or in the right of the Company)
if the Indemnitee was or is a "party" (as used in this Agreement,
"party" shall include the giving of testimony or similar involvement)
or threatened to be made a party to such action, suit or proceeding by
reason of the fact that the Indemnitee is or was a director, officer,
employee or agent 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
(including employee benefit plans); provided, however, that the
Indemnitee shall be entitled to such indemnification only if the
Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding,
the Indemnitee had no reasonable cause to believe such conduct was
unlawful. The term "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. A person who acted in
good faith and in a manner he 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."
4. The Company shall indemnify and hold harmless the
Indemnitee from and against expenses (including attorneys' fees and
disbursements), and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement
of any threatened, pending or completed action or suit, or appeal
thereof, by or in the right of the Company to procure a judgment in its
favor if the Indemnitee was or is a party or threatened to be a party
to such action or suit by reason of the fact that the Indemnitee is or
was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employer
or agent of another corporation, partnership, joint venture, trust or
other enterprise; provided, however, that the Indemnitee shall be
entitled to such indemnification only if the Indemnitee acted in good
faith and in a manner reasonably believed by the Indemnitee to be in or
not opposed to the best interests of the Company and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable in the
performance of such person's duty to the Company if and to the extent
that the court in which such action or suit was brought shall determine
that the Indemnitee is not entitled to such indemnification.
5. The Company currently has in force policies of Directors
and Officers Liability Insurance (the "D&O Policy"). The Company shall
not be liable under this Indemnification Agreement for any amount of
any claim for which the Indemnitee has been paid under the D&O Policy
or under any other valid insurance policies maintained in the future by
the Company for Indemnitee's benefit. The Company shall not be required
to maintain the D&O Policy presently in effect or to replace such
policy if, in the judgment of the board of directors of the Company,
the cost of such policy is not reasonable in relation to the coverage
provided. If the Company so decides not to maintain the current D&O
Policy or replace it with policies with similar coverage, the Company
agrees, in addition to and not in limitation of the indemnification
otherwise provided for by this Indemnification Agreement, to indemnify
and hold harmless the Indemnitee to the extent of coverage which would
have been provided by the D&O Policy to the fullest extent permissible
under applicable law.
6. Expenses incurred by the Indemnitee in connection with any
action, suit, proceeding, or appeal thereof, described in Paragraphs 3
and 4 above, shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding within twenty (20) days
of receipt of an undertaking by the Indemnitee to repay such amount if
it is ultimately determined by the board of directors, Independent
Counsel (as defined below), the shareholders or a court, as provided in
Paragraph 9 of this Indemnification Agreement, that the Indemnitee is
not entitled to be indemnified by the Company or not entitled to full
indemnification by the Company.
7. The Indemnitee's right to indemnification and advancement
of expenses as set forth in this Indemnification Agreement shall not be
exclusive of other rights the Indemnitee may have under applicable law,
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other agreements between the Company and the Indemnitee, the
Certificate of Incorporation or By-laws of the Company, by vote of
disinterested directors of the Company or by vote of the shareholders
of the Company.
8. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Indemnification Agreement shall
continue after the Indemnitee has ceased to be an employee of the
Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
9. Upon written request by the Indemnitee for indemnification
under Paragraphs 3 and 4 above, a determination regarding the
Indemnitee's entitlement to such indemnification shall be made by (1)
the board of directors of the Company by a majority vote of a quorum
consisting of directors who are not parties to the action, suit,
settlement or proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable, a quorum consisting of disinterested directors
so directs, by Independent Counsel, as defined below, in a written
opinion, or (3) by the shareholders of the Company. "Independent
Counsel" shall mean a law firm or member of a law firm that has not
within the last five (5) years represented the Company or the
Indemnitee in a matter material to either or in a matter material to
any other party to the action, suit or proceeding giving rise to the
Indemnitee's claim for indemnification under this Indemnification
Agreement. Independent Counsel shall not include any member of a law
firm who would have a conflict of interest under applicable standards
of professional conduct in representing the Company or the Indemnitee
in an action hereunder. Such Independent Counsel shall be chosen by the
board of directors of the Company and approved by the Indemnitee. Upon
failure of the board of directors to choose, or the Indemnitee to
approve, Independent Counsel, Independent Counsel shall be selected by
the Chancellor of the State of Delaware or by an appointee of the
Chancellor. Determination of entitlement to indemnification shall be
made within thirty (30) days of receipt by the Company of a written
request for indemnification by the Indemnitee. The Indemnitee's request
to the Company shall be accompanied by any documentation reasonably
available to the Indemnitee relating to the Indemnitee's entitlement to
be indemnified. All reasonable expenses (including attorneys' fees and
disbursements) relating to the Indemnitee's request for indemnification
under this Indemnification Agreement shall be paid by the Company
regardless of the outcome of the determination as to the Indemnitee's
entitlement to indemnification. If such determination is unfavorable to
the Indemnitee or if the Indemnitee has made no request for
indemnification hereunder or no determination is otherwise made, the
Indemnitee may within two (2) years after such determination, or, if no
determination has been made, within two (2) years after the Indemnitee
has incurred the expense or otherwise made a payment for which the
Indemnitee seeks indemnification, petition the Court of Chancery of the
State of Delaware or any other court of competent jurisdiction to
determine whether the Indemnitee is entitled to indemnification under
the terms of this Indemnification Agreement or otherwise. The
Indemnitee shall not be prejudiced in such judicial proceeding by a
prior determination that the Indemnitee is not entitled to
indemnification. The Company shall be precluded from asserting in such
judicial proceeding that it is not bound by the provisions of this
Indemnification Agreement. The Company shall pay all expenses
(including attorneys' fees and disbursements incurred or at trial or on
one or more appeals) actually and reasonably incurred by the Indemnitee
in connection with such judicial determination.
10. If any action, suit or proceeding described in Paragraphs
3 and 4 above shall be terminated by judgment, order, settlement or
conviction or upon a plea of NOLO CONTENDERE or its equivalent, no
presumption shall be created that the 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, and, with respect to any
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criminal action or proceeding, that the Indemnitee had reasonable cause
to believe that his conduct was unlawful.
11. In each request made by Indemnitee for indemnity or
advancement of expenses under this Indemnification Agreement, the
Indemnitee shall be presumed to have satisfied the required standard of
conduct and any and all other conditions precedent to such indemnity
and/or advancement, unless and until the contrary is established.
12. Notwithstanding any other provision of the Indemnification
Agreement, the Company shall not be liable to indemnify the Indemnitee
under this Indemnification Agreement in connection with any claim
against Indemnitee:
(a) for which the Indemnitee is indemnified by the
Company other than under this Indemnification Agreement;
(b) if a court of competent jurisdiction has rendered
a final decision that indemnification relating to the claim
would be unlawful;
(c) if pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of any
state or federal statutory law, the claim is for an accounting
of profits made from the purchase and sale by the Indemnitee
of securities of the Company;
(d) if a final decision by a court of competent
jurisdiction shall adjudge the Indemnitee's conduct to have
been knowingly fraudulent or deliberately dishonest and to be
material to the claim adjudicated by the court; or
(e) if the claim was based upon the Indemnitee's
deriving an unlawful personal benefit and a court of competent
jurisdiction adjudges that such benefit was unlawful in a
final decision.
13. If any provision of this Indemnification Agreement or the
application thereof to any particular facts or circumstances shall be
held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions (including portions of
any paragraph of this Indemnification Agreement containing an invalid,
illegal or unenforceable provision) and the application thereof to
facts or circumstances other than those as to which it is held invalid,
illegal, or unenforceable shall not be impaired or affected thereby.
This Indemnification Agreement shall be construed to be valid and
enforceable to the full extent allowed by law, and any invalid, illegal
or unenforceable provision of this Indemnification Agreement shall be
modified as necessary to comply with all applicable laws.
14. This Indemnification Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
15. This Indemnification Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
applicable to contracts made and wholly performed in such state.
16. All notices or other communication hereunder shall be in
writing and shall be deemed to be effective and to have been duly given
if delivered by certified mail postage prepaid, return receipt
requested, to the respective parties, as follows:
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If to the Company:
Nabi Biopharmaceuticals
0000 Xxxx xx Xxxxxxxx Xxxxxxxxx, X.X.
Xxxx Xxxxx, XX 00000
Attention: President & COO
If to Indemnitee:
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
or to such other address as a party may have furnished to the other in
writing in accordance with this paragraph, except that notices of
change of address shall only be effective upon receipt.
17. This Indemnification Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit
of (and be enforceable against the Company by) the Indemnitee and the
Indemnitee's heirs, executors and administrators.
18. No amendment of this Indemnification Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of
any provision of this Indemnification Agreement shall constitute a
waiver of any other provision hereof.
19. The Indemnitee shall notify the Company in writing within
thirty days after being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any
matter concerning which the Indemnitee may be entitled to
indemnification hereunder, but the failure to give such notice shall
not affect the Company's obligation to indemnify the Indemnitee to the
extent provided for herein or otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and signed as of the day and year first above
written.
Nabi Biopharmaceuticals: Indemnitee
By: /s/ Xxxxxx X. XxXxxx By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. XxXxxx Name: Xxxxxx Xxxxxxxxx
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Title: President & COO Title: Senior Vice President, Operations
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Date: November 25, 2002 Date: December 03, 2002
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