EXHIBIT 10.2
INDEMNIFICATION AND ADVANCEMENT AGREEMENT
THIS INDEMNIFICATION AND ADVANCEMENT AGREEMENT is made as of September 23,
2005 by and between EMISPHERE TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxx ("Indemnitee").
RECITALS:
WHEREAS, directors, officers, and other persons in service to corporations
or business enterprises are being increasingly subjected to expensive and
time-consuming litigation relating to claims that traditionally would have been
brought only against the business enterprise itself; and
WHEREAS, the Certificate of Incorporation and Bylaws of the Company
provide rights of advancement and indemnification of the officers and directors
of the Company and Indemnitee may also be entitled to advancement and
indemnification pursuant to the Delaware General Corporation Law ("DGCL"), but
the Bylaws and the DGCL expressly provide that the advancement and
indemnification provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between the Company and members
of the Board of Directors and officers with respect to advancement and
indemnification of directors and officers; and
WHEREAS, the Indemnitee is considering resigning from the Board of
Directors and seeks a clearer statement as to his rights to indemnity; and
WHEREAS, it is in the best interests of the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law; and
WHEREAS, it is in the best interests of the Company to obtain Indemnitee's
agreement to cooperate in any future litigation, investigation or proceedings;
and
WHEREAS, this Agreement is a supplement to and in furtherance of the
Bylaws of the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the Company and Indemnitee do hereby
covenant and agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement:
"Beneficial Owner" shall have the meaning given to such term in Rule 13d-3
under the Exchange Act; provided, however, that Beneficial Owner shall exclude
any Person otherwise
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becoming a Beneficial Owner by reason of the shareholders of the Company
approving a merger of the Company with another entity.
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning specified in Section 14.
"Covered Enterprise" means the Company and any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at the request of
the Company as a director, officer, manager, employee, agent or fiduciary.
"Corporate Status" describes the status of a person who is or was a
director, officer, manager, employee, agent or fiduciary of the Company or of
any other Covered Enterprise.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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, being or preparing to be a witness in, or
otherwise participating in, a Proceeding. However, Expenses shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
"Good Faith" means as to the Indemnitee, Indemnitee having 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,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
With respect to actions related to an employee benefit plan, a person who acted
in good faith and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in manner "not opposed to the best interests of the
Company" as referred to in this Agreement.
"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 to make the
determination of entitlement under Section 10(a) or a similar determination as
to other indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement. The Company agrees to pay the reasonable fees and expenses
of the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims,
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liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
"Person", for purposes of the Change of Control provisions of Section 14
hereof, shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude (i) the Company, (ii)
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company, and (iii) any corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
"Proceeding" includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution process, investigation, inquiry,
administrative hearing or other proceeding, whether brought in the right of the
Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee was, is or will be involved as a party
or otherwise by reason of any of the following: (i) the fact that Indemnitee is
or was a director or officer of the Company, (ii) any action taken, approved or
permitted by him while acting as director or officer of the Company, (iii) the
fact that he is or was serving at the request of the Company as a director,
officer, manager, employee, agent or fiduciary of another Covered Enterprise, or
(iv) any action taken, approved or permitted by him while acting as a director,
officer, manager, employee, agent or fiduciary of another Covered Enterprise, in
each case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement, or advancement of
expenses can be provided under this Agreement.
SECTION 2. SERVICES TO THE COMPANY. Indemnitee agrees to reasonably
cooperate with the Company, at the Company's expense, in connection with its
defense or prosecution of any proceeding, including submitting affidavits,
meeting with Company counsel, or appearing as a testifying witness, at such
times, and at such places, that are reasonably convenient to the Indemnitee.
Indemnitee further agrees to not cooperate with, or providing assistance to, any
third party in any proceeding against the Company, its officers and directors
involving any past, present or future claims that such third party may have
against the Company, its officers or directors relating to any matter involving
the Company occurring prior to or in connection with Indemnitee's resignation as
a Director, other than to comply with a court order, a subpoena or other legal
or regulatory obligation.
SECTION 3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall
indemnify Indemnitee if Indemnitee is, or is threatened to be made, a party to
or a participant in any Proceeding, other than a Proceeding by or in the right
of the Company to procure a judgment in its favor. Pursuant to this Section,
Indemnitee shall be indemnified against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on
his behalf in connection with such Proceeding, or any claim, issue or matter
therein, if Indemnitee acted in Good Faith.
SECTION 4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section, Indemnitee
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shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection with such Proceeding, or any claim, issue or
matter therein, if Indemnitee acted in Good Faith. No indemnification for
Expenses shall be made under this Section in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a court to be
liable to the Company, unless and only to the extent that any court in which the
Proceeding was brought or the Court of Chancery of the State of Delaware (the
"Delaware Court") 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.
SECTION 5. 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.
SECTION 6. INTENDED SCOPE OF INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3 or 4, 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 in the right 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. For
purposes of the foregoing, 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 provision of the DGCL
that authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement of the
DGCL; and
(ii) to the fullest extent authorized or permitted by any amendments
to or replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its officers
and directors.
(b) In the interpretation of Sections 3 or 4, references to "fines"
shall include any excise tax assessed with respect to any employee benefit plan.
SECTION 7. EXCLUSIONS. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision (including
any provision of the Company's charter or Bylaws), except with respect to any
excess beyond the amount paid under any such insurance policy or other indemnity
provision; or
(b) for the amount of any profits made from the purchase and sale
(or sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act, or similar provisions of state
statutory law or common law; or
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(c) for the amount of any bonus or other incentive-based or
equity-based compensation or for any profits from the sale of securities which
Indemnitee is required to disgorge pursuant to Section 304 of the Xxxxxxxx-Xxxxx
Act of 2002.
SECTION 8. ADVANCES OF EXPENSES. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance the Expenses incurred by
Indemnitee in connection with any Proceeding within 30 days after the receipt by
the Company of a statement or statements requesting such advances from time to
time, whether prior to or after final disposition of any Proceeding. Advances
shall be unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the Expenses. Advances shall include any and all
reasonable Expenses incurred by or on behalf of Indemnitee pursuing an action to
enforce this right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claimed. The
Indemnitee shall be entitled to advances solely upon the execution and delivery
to the Company of an undertaking providing that the Indemnitee undertakes to
repay the advance to the extent that it is ultimately determined that Indemnitee
is not entitled to be indemnified by the Company.
SECTION 9. PROCEDURE FOR NOTIFICATION AND DEFENSE OF CLAIM.
(a) To obtain advancement or indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including 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 advancement or indemnification, not later than 60 days after receipt
by Indemnitee of notice of the commencement of any Proceeding. The omission to
notify the Company will not relieve the Company from any liability which it may
have to Indemnitee otherwise than under this Agreement. The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested indemnification.
(b) Indemnitee shall have the right to select counsel of his choice,
and the Company waives any right to object to that selection on any grounds.
SECTION 10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon written request by Indemnitee for indemnification pursuant
to the first sentence of Section 9(a), a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case: (i) if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not
have occurred, (A) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board, or (B) by a committee of Disinterested
Directors designated by the Disinterested Directors, even though less than a
quorum, (C) if there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a written opinion
to the Board, a copy of which shall be delivered to Indemnitee or (D) if so
directed by the Board, by the stockholders of the Company; and, if it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such determination. Indemnitee shall
cooperate with the person making such determination with respect to
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Indemnitee's entitlement to indemnification, including providing to such person
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
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person 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.
(b) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to paragraph (a) hereof, the
Independent Counsel shall be selected as provided in this paragraph (b). If a
Change in Control shall not have occurred, the Independent Counsel shall be
selected by a majority of Disinterested Directors, and the Company shall give
written notice to Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within 10 days after
such written notice of selection shall have been given, deliver to the Company
or to Indemnitee, as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as Independent Counsel.
If such written objection is so made and substantiated, the Independent Counsel
so selected may not serve as Independent Counsel unless and until such objection
is withdrawn or a court has determined that such objection is without merit. If,
within 20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 9(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under paragraph (a).
Upon the due commencement of any judicial proceeding or arbitration pursuant to
Section 12(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).
SECTION 11. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to entitlement to
indemnification under Section 11, 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 9(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 of any determination contrary to that presumption.
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(b) If the person empowered or selected under Section 10 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within 60 days after receipt by the Company of 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 60-day period may be extended for a reasonable time, not to
exceed an additional 30 days, if the person making the determination with
respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing provisions of this
paragraph (b) shall not apply (i) if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section 10(a) of
this Agreement and if (A) within 15 days after receipt by the Company of the
request for such determination the Board of Directors has resolved to submit
such determination to the stockholders for their consideration at an annual
meeting thereof to be held within 75 days after such receipt (90 days if the
Company is then subject to Section 13 of the Exchange Act) and such
determination is made thereat, or (B) a special meeting of stockholders is
called within 20 days after such receipt (30 days if the Company is then subject
to Section 13 of the Exchange Act) for the purpose of making such determination,
such meeting is held for such purpose within 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 10(a) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (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.
(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 Covered Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Covered Enterprise in the course of their duties, or on the advice of legal
counsel for the Covered Enterprise or on information or records given or reports
made to the Covered Enterprise by an independent certified public accountant or
by an appraiser or other expert selected with the reasonable care by the Covered
Enterprise. The provisions of this paragraph (d) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set forth in this
Agreement.
(e) The knowledge and/or actions, or failure to act, of any
director, officer, manager, agent, employee or fiduciary of any of the Covered
Enterprises shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
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SECTION 12. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 8 of this Agreement, (iii) no determination of entitlement to
indemnification (or referral to stockholders for determination) shall have been
made pursuant to Section 10(a) 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 Section 5, 6, or the last sentence of Section 10(a) of
this Agreement within 10 days after receipt by the Company of a written request
therefor, or (v) payment of indemnification pursuant to Section 3 or 4 of this
Agreement is not made within 10 days after a determination has been made that
Indemnitee is entitled to indemnification, then in each such case, Indemnitee
shall be entitled to an adjudication by a court of competent jurisdiction,
including the Delaware Court, of his entitlement to such indemnification or
advancement of Expenses. The Company shall not oppose Indemnitee's right to seek
any such determination.
(b) Neither (i) the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to
the commencement of any action pursuant to this Section that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor (ii) an actual determination by the Company (including by its
directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct shall be a defense to any action under this
Section, or create a presumption that Indemnitee has not met the applicable
standard of conduct; and any judicial proceeding or arbitration commenced
pursuant to this Section shall be conducted in all respects as a de novo trial,
or arbitration, on the merits, Indemnitee shall not be prejudiced by reason of
any prior adverse determination, and the Company shall have the burden of
proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section
10(a) 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, 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, 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. If it shall be determined in said judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the
Company against, any and all Expenses reasonably incurred by Indemnitee in
connection with such judicial adjudication or arbitration.
(e) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section that the procedures
and presumptions of this
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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. The Company shall indemnify Indemnitee against any
and all Expenses and, if requested by Indemnitee, shall (within 10 days after
receipt by the Company of a written request therefore) advance such Expenses as
are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement
or under any directors' and officers' liability insurance policies maintained by
the Company, except to the extent Indemnitee ultimately is determined not to be
entitled to such indemnification, advancement of Expenses or insurance recovery,
as the case may be.
SECTION 13. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Certificate of Incorporation, the Company's Bylaws, 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. 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, managers,
employees, agents or fiduciaries of the Company or of any other Covered
Enterprise, 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, manager, employee, agent or fiduciary under such policy
or policies. If, at the time of the receipt of a notice of a claim pursuant to
Section 9 hereof, the Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such 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 reasonably necessary to secure such rights, at the Company's expense,
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 (or for which advancement is provided
hereunder) hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
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(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from any Covered
Enterprise.
SECTION 14. CHANGE IN CONTROL. A "Change in Control" shall be deemed to
occur upon the earliest to occur after the date of this Agreement of any of the
following events:
(a) After the date hereof, any Person other than MHR Fund Management
LLC and its affiliates who is not already the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities becomes such;
(b) The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior to such
merger of consolidation continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more than
51% of the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation and with the
power to elect at least a majority of the board of directors or other governing
body of such surviving entity;
(c) The approval by the shareholders of the Company of a complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets; or
(d) During any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in paragraphs (a)-(d)) whose election
by the Board or nomination for election by the Company's shareholders was
approved by a vote of at least a majority of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority of the members of the Board.
SECTION 15. CONTRIBUTION. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of the relevant
Proceeding in order to reflect (i) the relative benefits received by the Company
or other Covered Enterprise and Indemnitee as a result of the event(s) and/or
transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of
the Company or other Covered Enterprise (and its directors, officers, managers,
employees, agents and fiduciaries) and Indemnitee in connection with such
event(s) and/or transaction(s).
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SECTION 16. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, 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; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (c) 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.
SECTION 17. ENTIRE AGREEMENT; MODIFICATION OR WAIVER; SUCCESSORS AND
ASSIGNS.
(a) 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.
(b) No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by each of the parties thereto.
(c) No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement
nor shall any waiver constitute a continuing waiver.
(d) This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.
SECTION 18. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee 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.
SECTION 19. NOTICES.
(a) All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(i) if delivered by hand and receipted for by the party to whom said notice or
other communication shall have been directed, or (b) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed.
(b) Notices shall be given to the following addresses (or in each
case, as otherwise hereafter provided by written notice from one party to the
other):
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If to the Company to:
Emisphere Technologies, Inc.
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx Israels LLP
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
If to Indemnitee:
Xxxxxx X. Xxxxxxxx
c/o Lenox Capital Group
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
SECTION 20. APPLICABLE LAW; JURISDICTION; VENUE.
(a) This Agreement and the legal relations among the parties shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws rules.
(b) The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the "Delaware Court, and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) to the extent such party is not a resident
of the State of Delaware, irrevocably appoint CT Corporation as its agent in the
State of Delaware as such party's agent for acceptance of legal process in
connection with any such action or proceeding against such party with the same
legal force and validity as if served upon such party personally within the
State of Delaware, (iv) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court, and (v) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum.
SECTION 21. MISCELLANEOUS.
(a) 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.
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(b) Use of the masculine pronoun shall be deemed to include usage of
the feminine pronoun where appropriate. References to a person shall include
both individuals and legal persons.
(c) 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the day and year first above written.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
INDEMNITEE:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
Address: c/o Lenox Capital Group
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
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