INDEMNIFICATION AGREEMENT
EXHIBIT 10.53
THIS AGREEMENT (the “Agreement”) is made and entered into as of ____________ by and
between XxxxxxXxxxx Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
____________ (“Indemnitee”). This Agreement shall be effective as of the date the Indemnitee
became a member of the Board of Directors of the Company or an employee of the Company, as
applicable (the “Effective Date”).
WITNESSETH THAT:
WHEREAS, Indemnitee performs a valuable service for the Company; and
WHEREAS, the Board of Directors of the Company has adopted a Certificate of Incorporation and
Bylaws (the “Bylaws”) which provide that the Company shall indemnify directors and officers of the
Company and that the Company shall have the power to indemnify employees and agents of the Company,
in each case to the fullest extent permitted by the Delaware General Corporation Law, as amended
(“Delaware Law”); and
WHEREAS, in recognition of Indemnitee’s need for protection against personal liability in
order to enhance Indemnitee’s continued service to the Company in an effective manner, and in part
to provide Indemnitee with specific contractual assurance that the indemnification protection
provided by the Certificate of Incorporation and By-laws of the Company will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of such Certificate
of Incorporation and By-laws or any change in the composition of the Board of Directors of the
Company or acquisition transaction relating to the Company), and in order to induce Indemnitee to
continue to provide services to the Company as a member of the Board of Directors or as an employee
thereof (as applicable), the Company wishes to provide in this Agreement for the indemnification of
and the advancing of expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained,
for the continued coverage of Indemnitee under the Company’s liability insurance policies; and
WHEREAS, in order to induce Indemnitee to provide or continue to provide services to the
Company, the Company has determined and agreed to enter into this Agreement with Indemnitee, which
shall be effective as of the Effective Date;
NOW, THEREFORE, in view of the considerations set forth above the Company and Indemnitee
hereby agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent authorized or permitted by the provisions of the Delaware Law, as
such may be amended from time to time, and Article IX of the Certificate of Incorporation and
Article 5 of the Bylaws, as such Certificate of Incorporation and Bylaws are in effect on the date
hereof and as such may be amended from time to time to enhance the rights of Indemnitee. In
furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of
Indemnitee’s Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and
in a manner Indemnitee 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
Indemnitee’s 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 Indemnitee’s
Corporate Status, Indemnitee 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 Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company; provided, however, 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 to the extent
that the Court of Chancery of the State of Delaware shall determine that such indemnification may
be made.
(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 Indemnitee’s Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, Indemnitee shall be indemnified to the maximum extent permitted by law against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s 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 Indemnitee or on Indemnitee’s 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.
2. Contribution in the Event of Joint Liability.
(a) Whether or not the indemnification provided in Section 1 hereof is available, in respect
of any threatened, pending or completed action, suit or proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company
shall contribute to the amount of expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement of such action, suit or proceeding actually and reasonably incurred and
paid or payable by Indemnitee in proportion to the relative fault of the
Company and all officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such
expenses, judgments, fines or settlement amounts, as well as any other equitable considerations
which the Delaware Law may require to be considered. The relative fault of the Company and all
officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree
to which their actions were motivated by intent to gain personal profit or advantage, the degree to
which their liability is primary or secondary and the degree to which their conduct is active or
passive.
(b) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.
3. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.
4. Advancement of Expenses. Notwithstanding any other provision of this Agreement,
the Company shall advance all 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 shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to repay pursuant to this Section 4 shall be
unsecured and interest free. Notwithstanding the foregoing, the obligation of the Company to
advance Expenses pursuant to this Section 4 shall be subject to the condition that, if, when 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 twenty (20) 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 (and as to which all rights of appeal therefrom
have been exhausted or lapsed).
5. Procedures and Presumptions for Determination of Entitlement to Indemnification.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the Delaware Law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to, the advancement of Expenses and
contribution by the Company) 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 Secretary 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.
(b) In the event the Company shall be obligated hereunder to pay the Expenses of any
Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not
be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding; provided that, (i) Indemnitee shall have the right
to employ Indemnitee’s counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee
shall have reasonably concluded that there is a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain such
counsel to defend such Proceeding, then the fees and expenses of Indemnitee counsel shall be at the
expense of the Company. The Company shall have the right to conduct such defense as it sees fit in
its sole discretion; provided, however, the Company shall not, without the prior written consent of
Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or
compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee.
(c) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 5(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following three methods, which
shall be at the election of Indemnitee: (1) by a majority vote of the Disinterested Directors,
even though less than a quorum, (2) by independent legal counsel in a written opinion or (3) by the
stockholders.
(d) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 5(c) hereof, the Independent Counsel shall be selected as provided in
this Section 5(d). The Independent Counsel shall be selected by the Board of Directors and
approved by Indemnitee. Indemnitee may, within 10 days after such
written notice of selection shall have been given, deliver to the Company 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 Section 14 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, within 20 days
after submission by Indemnitee of a written request for indemnification pursuant to Section 5(a)
hereof, no Independent Counsel shall have been selected and not objected to, either the Company or
Indemnitee may petition the Court of Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have been made by 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 5(c) 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 5(c) hereof, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 5(d), regardless of the manner in which such
Independent Counsel was selected or appointed.
(e) 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. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence.
(f) 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, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) 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. Whether or not the foregoing provisions of this Section
5(f) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in
good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company. Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion by clear and convincing evidence.
(g) If the person, persons or entity empowered or selected under Section 5 to determine
whether Indemnitee is entitled to indemnification shall not have made a determination within thirty
(30) 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 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; provided, however, that such 30-day
period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the
person, persons or entity making such determination with respect to entitlement to indemnification
in good faith requires such additional time to obtain or evaluate documentation and/or information
relating thereto; and provided, further, that the foregoing provisions of this
Section 5(g) shall not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 5(c) of this Agreement and if (A) 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 (B) a special meeting of stockholders is
called within fifteen (15) days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within sixty (60) days after having been so called and such
determination is made thereat.
(h) 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 regarding Indemnitee’s entitlement to indemnification under this Agreement. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination 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.
(i) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without payment of money or
other consideration) it shall be presumed that Indemnitee has been successful on the merits or
otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion by clear and convincing evidence.
6. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 5 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 4 of this Agreement, (iii) no determination of
entitlement to indemnification is made pursuant to Section 5(c) of this Agreement within 90 days
after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to this Agreement within twenty (20) days
after receipt by the Company of a written request therefor or (v) payment of indemnification is not
made within ten (10) 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 5 of this
Agreement, 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 Indemnitee’s entitlement to such
indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days
following the date on which Indemnitee first has the right to commence such proceeding pursuant to
this Section 6(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 5(c) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 6 shall be conducted in all respects as a de novo trial on the merits,
and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 5(c).
(c) If a determination shall have been made pursuant to Section 5(c) 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 6, absent a prohibition of such
indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 6, seeks a judicial adjudication
of Indemnitee’s rights under, or to recover damages for breach of, this Agreement, the Company
shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 14 of this Agreement) actually and reasonably incurred by
Indemnitee in such judicial adjudication, only if Indemnitee ultimately is determined to be
entitled to such indemnification or advancement of expenses; provided, however, if
it shall be determined in such judicial adjudication that Indemnitee is entitled to receive part
but not all of the indemnification or advancement of expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately
pro-rated.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 6 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.
(f) Both the Company and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from indemnifying its directors, officers,
employees or agents under this Agreement or otherwise. Indemnitee understands and acknowledges
that the Company has undertaken or may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company’s right under public policy to indemnify
Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, officers, employees, agents or fiduciaries, Indemnitee shall be covered by
such policies in such a manner as to provide Indemnitee the same rights and benefits as are
provided to the most favorably insured of the Company’s directors, if Indemnitee is a director; or
of the Company’s officers, if Indemnitee is not a director of the Company but is an officer; or of
the Company’s key employees, agents or fiduciaries, if Indemnitee is not a director or officer but
is a key employee, agent or fiduciary.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for Indemnitee’s acts,
omissions or transactions from which Indemnitee may not be relieved of liability under applicable
law;
(b) Proceedings Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by
way of defense, except (i) with respect to actions or proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other agreement or insurance policy or under
the Company’s Certificate of Incorporation or Bylaws now or hereafter in effect relating to
Proceedings, (ii) in specific cases if the Board of Directors has approved the initiation or
bringing of such Proceeding, or (iii) as otherwise required under Section 145 of the Delaware
General Corporation Law, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance expense payment or insurance recovery, as the case may be;
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction ultimately determines that each of the material
assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous; or
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment
of profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
9. Non-Exclusivity; Primary Source of Indemnification; 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
Certificate of Incorporation of the Company, the Bylaws, any agreement, a vote of stockholders, 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 Indemnitee’s Corporate Status prior to
such amendment, alteration or repeal. To the extent
that a change in the Delaware Law, whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under the 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) The Company acknowledges that, for liabilities and expenses incurred by reason of
Indemnitee’s service to the Company, the Indemnitee may have certain rights to indemnification,
advancement of expenses and/or insurance provided by investment funds and their affiliates or other
third parties (collectively, the “Secondary Indemnitors”). The Company hereby acknowledges that
(a) the Company’s obligations under this Agreement shall be the primary source of indemnification
and advancement of liabilities and expenses incurred by reason of Indemnitee’s service to the
Company, and the Company will not assert that the Indemnitee must seek advancement, reimbursement
or indemnification from the Secondary Indemnitors, under this Agreement, (b) the Company shall be
required to perform all of its obligations under this Agreement without regard to any rights
Indemnitee may have against the Secondary Indemnitors, (c) as consideration for Indemnitee’s
service to the Company, the Company irrevocably waives, relinquishes and releases any and all
claims it would otherwise have against the Secondary Indemnitors for contribution, subrogation or
any other recovery of any amounts paid by the Company for advancement or indemnification under this
Agreement, (d) no advancement or payment of any kind by the Secondary Indemnitors to or on behalf
of the Indemnitee shall affect the foregoing, and (e) to the extent that the Secondary Indemnitors
advance or pay any amounts that the Company is obligated to advance or indemnify under this
Agreement, the Secondary Indemnitors shall have a right of subrogation against the Company for any
such amounts. If for any reason a court of competent jurisdiction determines that the Secondary
Indemnitors are not entitled to the subrogation rights described in clause (e) above of this
Section 9(b), the Secondary Indemnitors shall have a right of contribution by the Company to the
Secondary Indemnitors with respect to any advance or payment by the Secondary Indemnitors to or on
behalf of the Indemnitee by reason of Indemnitee’s service to the Company.
(c) 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 that 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 director, officer, employee, agent or fiduciary under such policy or policies.
(d) Except as provided in Section 9(b) hereof, 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.
(e) Except as provided in Section 9(b) hereof, 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.
(f) No legal action shall be brought and no cause of action shall be asserted by or in the
right of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal
or legal representatives after the expiration of two (2) years from the date of accrual of such
cause of action, and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
(g) The Company and Indemnitee agree that any Secondary Indemnitor shall be a third party
beneficiary of this Agreement.
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 brought by Indemnitee, or any claim therein, unless (a) the bringing of
such Proceeding or making of such claim shall have been approved by the Board of Directors of the
Company or (b) such Proceeding is being brought by Indemnitee to assert, interpret or enforce
Indemnitee’s rights under this Agreement.
11. Duration of Agreement. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is 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) and shall
continue thereafter so long as Indemnitee shall be subject to any Proceeding (or any proceeding
commenced under Section 6 hereof) by reason of Indemnitee’s Corporate Status, whether or not
Indemnitee 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.
12. Security. To the extent requested by Indemnitee and approved by the Board of
Directors of the Company, the Company may at any time and from time to time provide security to
Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of Indemnitee, which consent may not be
unreasonably withheld.
13. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
officer, employee or agent or of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director, officer, employee or agent 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.
14. Definitions. For purposes of this Agreement:
(a) “Corporate Status” describes the status, either prior or subsequent to the date of this
agreement, of a person who is or was a director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise that 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 in respect of 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 that 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 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 three (3) 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 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 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) “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 Indemnitee or of any inaction on Indemnitee’s part while acting as
a director, officer, employee or agent of the Company, or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether
or not Indemnitee 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, but excluding one initiated by an Indemnitee pursuant to
Section 6 of this Agreement to enforce Indemnitee’s rights under this Agreement.
15. 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. Without limiting the generality of the foregoing, this Agreement is intended to
confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws.
In the event any provision hereof conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent necessary to resolve such
conflict.
16. 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.
17. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
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 Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the Company.
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 on which it is so mailed:
(a) If to Indemnitee, to the address set forth below Indemnitee signature hereto.
(b) If to the Company, to:
XxxxxxXxxxx Pharmaceuticals, Inc.
0 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
19. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
20. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year
first above written.
| XXXXXXXXXXX PHARMACEUTICALS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
||||
| Name: | ||||
| Address: | ||||
