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Exhibit 10.8
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of _________, 2001 by and
among Ribapharm Inc., a Delaware corporation (the "Company") and the director
and/or officer of the Company whose name appears on the signature page of this
Agreement ("Indemnitee").
RECITALS
A. Highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
unless they are provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them arising out of
their service to and activities on behalf of the corporations.
B. The Board of Directors of the Company (the "Board") has determined
that the Company should act to assure its directors and officers that there will
be increased certainty of such protection in the future.
C. It is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified.
D. Indemnitee is willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
AGREEMENT
In consideration of the premises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) For purposes of this Agreement:
(i) "Affiliate" shall mean any corporation,
partnership, joint venture, trust or other enterprise in respect of which
Indemnitee is or was or will be serving as a director or officer directly or
indirectly at the request of the Company and including, but not limited to,
service with respect to an employee benefit plan.
(ii) "Disinterested Director" shall mean a
director of the Company who is not or was not a party to the Proceeding in
respect of which indemnification is being sought by Indemnitee.
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(iii) "Expenses" shall include all
attorneys' fees and costs, retainers, court costs, transcripts, 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 incurred in connection with asserting or defending claims.
(iv) "fines" shall include any excise taxes
assessed on Indemnitee with respect to any employee benefit plan.
(v) "Independent Counsel" shall mean a law
firm or lawyer that neither is presently nor in the past year has been retained
to represent: (i) the Company or Indemnitee in any matter material to any such
party or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder in any matter material to such other party.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any firm or person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing any of the
Company or Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement. All Expenses of the Independent Counsel
incurred in connection with acting pursuant to this Agreement shall be borne by
the Company.
(vi) "Losses" shall mean all expenses,
liabilities, losses and claims (including attorneys' fees, judgments, fines,
excise taxes under the Employee Retirement Income Security Act of 1974, as
amended from time to time, penalties and amounts to be paid in settlement)
incurred in connection with any Proceeding.
(vii) "Proceeding" shall include any
threatened, pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative.
(b) For purposes of this Agreement, a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to in this Agreement; the term "serving at the request of
the Company" shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and references to the "Company" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify Indemnitee in its capacity as a director, officer, or
employee or agent, so that Indemnitee shall stand in the same position under
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
2. Service by Indemnitee. Indemnitee agrees to begin or
continue to serve the Company or any Affiliate as a director and/or officer.
Notwithstanding anything contained
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herein, this Agreement shall not create a contract of employment between the
Company and Indemnitee, and the termination of Indemnitee's relationship with
the Company or an Affiliate by either party hereto shall not be restricted by
this Agreement.
3. Indemnification. The Company jointly and severally
agree to indemnify Indemnitee for, and hold Indemnitee harmless from and
against, any Losses or Expenses at any time incurred by or assessed against
Indemnitee arising out of or in connection with the service of Indemnitee as a
director or officer of the Company or of an Affiliate (collectively referred to
as an "Officer or Director of the Company") to the fullest extent permitted by
the laws of the State of Delaware in effect on the date hereof or as such laws
may from time to time hereafter be amended to increase the scope of such
permitted indemnification. Without diminishing the scope of the indemnification
provided by this Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights set forth
hereinafter.
4. Action or Proceeding Other Than an Action by or in
the Right of the Company. Indemnitee shall be entitled to the indemnification
rights provided herein if Indemnitee is a person who was or is made a party or
is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any Proceeding (other than an action by or in the
right of the Indemnitee (unless approved in advance in writing by the Company's
Board of Directors) or the Company) by reason of (a) the fact that Indemnitee is
or was an Officer or Director of the Company or any other entity which
Indemnitee is or was or will be serving at the request of the Company or (b)
anything done or not done by Indemnitee in any such capacity.
5. Actions by or in the Right of the Company. Indemnitee
shall be entitled to the indemnification rights provided herein if Indemnitee is
a person who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any Proceeding brought
by or in the right of the Company to procure a judgment in its favor by reason
of (a) the fact that Indemnitee is or was an Officer or Director of the Company
or any Affiliate, or (b) anything done or not done by Indemnitee in any such
capacity. Pursuant to this Section, Indemnitee shall be indemnified against
Losses or Expenses incurred or suffered by Indemnitee or on Indemnitee's behalf
in connection with the defense or settlement of any 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. Notwithstanding the foregoing
provisions of this Section, no such indemnification shall be made in respect of
any claim, issue or matter as to which Delaware law expressly prohibits such
indemnification by reason of an adjudication of liability of Indemnitee to the
Company unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Losses and Expenses which the Court of Chancery or such other
court shall deem proper.
6. Indemnification for Losses and Expenses of Party Who
is Wholly or Partly Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been wholly successful on the
merits or otherwise in any Proceeding referred to in Sections 3, 4 or 5 hereof
on any claim, issue or matter therein, Indemnitee shall be indemnified
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against all Losses and Expenses 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 agrees
to indemnify Indemnitee to the maximum extent permitted by law against all
Losses and Expenses incurred by Indemnitee in connection with each successfully
resolved claim, issue or matter. In any review or Proceeding to determine the
extent of indemnification, the Company shall bear the burden of proving any lack
of success and which amounts sought in indemnity are allocable to claims, issues
or matters which were not successfully resolved. For purposes of this Section
and without limitation, the termination of any such claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a successful
resolution as to such claim, issue or matter.
7. Payment for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of the fact that Indemnitee is or was an Officer or Director of the
Company or any Affiliate, as the case may be, a witness in any Proceeding, the
Company agrees to pay to Indemnitee all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
8. Advancement of Expenses and Costs. All Expenses
incurred by or on behalf of Indemnitee (or reasonably expected by Indemnitee to
be incurred by Indemnitee within three months) in connection with any Proceeding
shall be paid by the Company in advance of the final disposition of such
Proceeding within twenty days after the receipt by the Company of a statement or
statements from Indemnitee requesting from time to time such advance or
advances, whether or not a determination to indemnify has been made under
Section 9. Indemnitee's entitlement to such advancement of Expenses shall
include those incurred in connection with any Proceeding by Indemnitee seeking
an adjudication or award in arbitration pursuant to this Agreement. The
financial ability of Indemnitee to repay an advance shall not be a prerequisite
to the making of such advance. Such statement or statements shall reasonably
evidence such Expenses incurred (or reasonably expected to be incurred) by
Indemnitee in connection therewith and shall include or be accompanied by a
written undertaking by or on behalf of Indemnitee to repay such amount if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Agreement.
9. Procedure for Determination of Entitlement to
Indemnification.
(a) When seeking indemnification under this
Agreement (which shall not include in any case the right of Indemnitee to
receive payments pursuant to Section 7 and Section 8 hereof, which shall not be
subject to this Section 9), Indemnitee shall submit a written request for
indemnification to the Company. Determination of Indemnitee's entitlement to
indemnification shall be made promptly, but in no event later than 60 days after
receipt by the Company of Indemnitee's written request for indemnification. The
Secretary of the Company shall, promptly upon receipt of Indemnitee's request
for indemnification, advise the Board that Indemnitee has made such request for
indemnification.
(b) The entitlement of Indemnitee to
indemnification under this Agreement shall be determined, with respect to a
person who is a director or officer at the time of
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such determination, in the specific case (1) by the Board of Directors by a
majority vote of the Disinterested Directors, even though less than a quorum, or
(2) by a committee of the Disinterested Directors designated by majority vote of
the Disinterested Directors, even though less than a quorum, or (3) if there are
no Disinterested Directors, or if such Disinterested Directors so direct, by
Independent Counsel, or (4) by the stockholders. The entitlement of the
Indemnitee to indemnification shall be determined with respect to any person who
is not a director or officer at the time of such determination by any means
reasonably determined by the Company.
(c) In the event the determination of
entitlement is to be made by Independent Counsel, such Independent Counsel shall
be selected by the Board and approved by Indemnitee. Upon failure of the Board
to so select such Independent Counsel or upon failure of Indemnitee to so
approve, such Independent Counsel shall be selected by the American Arbitration
Association of New York, New York or such other person as such Association shall
designate to make such selection.
(d) If a determination is made pursuant to
Section 9(b) is that Indemnitee is not entitled to indemnification to the full
extent of Indemnitee's request, Indemnitee shall have the right to seek
entitlement to indemnification in accordance with the procedures set forth in
Section 10 hereof.
(e) If a determination with respect to
entitlement to indemnification shall not have been made within 60 days after
receipt by the Company of such request, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be absolutely entitled to such indemnification, absent (i)
misrepresentation by Indemnitee of a material fact in the request for
indemnification or (ii) a final judicial determination that all or any part of
such indemnification is expressly prohibited by law.
(f) The termination of any Proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, adversely affect the rights of Indemnitee
to indemnification hereunder except as may be specifically provided herein, or
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or create a presumption that (with respect to any
criminal action or proceeding) Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(g) For purposes of any determination of good
faith hereunder, Indemnitee shall be deemed to have acted in good faith if in
taking such action Indemnitee relied on the records or books of account of the
Company or an Affiliate, including financial statements, or on information
supplied to Indemnitee by the officers of the Company or an Affiliate in the
course of their duties, or on the advice of legal counsel for the Company or an
Affiliate or on information or records given or reports made to the Company or
an Affiliate by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care to the Company or an Affiliate. The
Company shall have the burden of establishing the absence of good faith. The
provisions of this Section 9(g) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement.
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(h) The knowledge and/or actions, or failure to
act, of any other director, officer, agent or employee of the Company or an
Affiliate shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
10. Remedies in Cases of Determination Not to Indemnify
or to Advance Expenses.
(a) In the event that (i) a determination is
made that Indemnitee is not entitled to indemnification hereunder, (ii) advances
are not made pursuant to Section 8 hereof or (iii) payment has not been timely
made following a determination of entitlement to indemnification pursuant to
Section 9 hereof, Indemnitee shall be entitled to seek a final adjudication
either through an arbitration proceeding or in an appropriate court of the State
of Delaware or any other court of competent jurisdiction of Indemnitee's
entitlement to such indemnification or advance.
(b) In the event a determination has been made
in accordance with the procedures set forth in Section 9 hereof, in whole or in
part, that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration referred to in Section 10(a) shall be de novo and
Indemnitee shall not be prejudiced by reason of any such prior determination
that Indemnitee is not entitled to indemnification, and the Company shall bear
the burdens of proof specified in Sections 6 and 9 hereof in such proceeding.
(c) If a determination is made or deemed to have
been made pursuant to the terms of Section 9 or 10 hereof that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration in the absence of (i) a misrepresentation
of a material fact by Indemnitee or (ii) a final judicial determination that all
or any part of such indemnification is expressly prohibited by law.
(d) To the extent deemed appropriate by the
court, interest shall be paid by the Company to Indemnitee at a reasonable
interest rate for amounts which the Company or both, indemnifies or is obliged
to indemnify Indemnitee for the period commencing with the date on which
Indemnitee requested indemnification (or reimbursement or advancement of any
Expenses) and ending with the date on which such payment is made to Indemnitee
by the Company.
11. Expenses Incurred by Indemnitee to Enforce this
Agreement. All Expenses incurred by Indemnitee in connection with the
preparation and submission of Indemnitee's request for indemnification hereunder
shall be jointly and severally borne by the Company. In the event that
Indemnitee is a party to or intervenes in any proceeding in which the validity
or enforceability of this Agreement is at issue or seeks an adjudication to
enforce Indemnitee's rights under, or to recover damages for breach of, this
Agreement, Indemnitee, if Indemnitee prevails in whole in such action, shall be
entitled to recover from the Company and shall be indemnified by the Company
against, any Expenses incurred by Indemnitee. If it is determined that
Indemnitee is entitled to indemnification for part (but not all) of the
indemnification so requested, Expenses incurred in seeking enforcement of such
partial indemnification shall be reasonably prorated among the claims, issues or
matters for which
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Indemnitee is entitled to indemnification and for claims, issues or matters for
which Indemnitee is not so entitled.
12. Non-Exclusivity. The rights of indemnification and to
receive advances as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under any law,
certificate of incorporation, by-law, other agreement, vote of stockholders or
resolution of directors or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such office. To the
extent Indemnitee would be prejudiced thereby, no amendment, alteration,
rescission or replacement of this Agreement or any provision hereof shall be
effective as to Indemnitee with respect to any action taken or omitted by such
Indemnitee in Indemnitee's position with the Company or an Affiliate or any
other entity which Indemnitee is or was serving at the request of the Company
prior to such amendment, alteration, rescission or replacement.
13. Duration of Agreement. This Agreement shall apply to
any claim asserted and any Losses and Expenses incurred in connection with any
claim asserted on or after the effective date of this Agreement and shall
continue until and terminate upon the later of: (a) ten years after Indemnitee
has ceased to occupy any of the positions or have any of the relationships
described in Section 3, 4 or 5 hereof; or (b) one year after the final
termination of all pending or threatened Proceedings of the kind described
herein with respect to Indemnitee. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's spouse, assigns, heirs, devisee, executors,
administrators or other legal representatives.
14. Maintenance of D&O Insurance.
(a) The Company each hereby covenants and agrees
with Indemnitee that, so long as Indemnitee shall continue to serve as an
Officer or Director of the Company and thereafter so long as Indemnitee shall be
subject to any possible claim or threatened, pending or completed Proceeding,
whether civil, criminal or investigative, by reason of the fact that Indemnitee
was an Officer or Director of the Company or any other entity which Indemnitee
was serving at the request of the Company shall maintain in full force and
effect (i) the directors' and officers' liability insurance issued by the
insurer and having the policy amount and deductible as currently in effect with
respect to directors and officers of the Company or any of its subsidiaries and
(ii) any replacement or substitute policies issued by one or more reputable
insurers providing in all respects coverage at least comparable to and in the
same amount as that currently provided under such existing policy (collectively,
"D&O Insurance").
(b) In all policies of D&O Insurance, Indemnitee
shall be named as an insured in such a manner as to provide Indemnitee the same
rights and benefits, subject to the same limitations, as are accorded to the
Company's directors or officers most favorably insured by such policy.
(c) Notwithstanding anything to the contrary set
forth in (a) above, the Company shall have no obligation to maintain D&O
Insurance if the Company determines in good faith that such insurance is not
reasonably available, the premium cost for such insurance is
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disproportionate to the amount of coverage provided or the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit.
15. Severability. Should any part, term or condition
hereof be declared illegal or unenforceable or in conflict with any other law,
the validity of the remaining portions or provisions hereof shall not be
affected thereby, and the illegal or unenforceable portions hereof shall be and
hereby are redrafted to conform with applicable law, while leaving the remaining
portions hereof intact.
16. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
17. Headings. Section headings are for convenience only
and do not control or affect meaning or interpretation of any terms or
provisions hereof.
18. Modification and Waiver. No supplement, modification
or amendment of this Agreement shall be binding unless executed in writing by
each of the parties hereto.
19. Notices. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing (including
telecopier or similar writing) and shall be deemed to have been given at the
time when mailed, enclosed in a registered or certified postpaid envelope, in
any general or branch office of the United States Postal Service, or sent by
Federal Express or other similar overnight courier service, addressed to the
address of the parties stated below or to such changed address as such party may
have fixed by notice or, if given by telecopier, when such telecopy is
transmitted and the appropriate answerback is received.
(a) If to Indemnitee, to the address appearing on the
signature page hereof.
(b) If to the Company to:
Ribapharm, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Senior Vice President, General Counsel and
Secretary
20. Governing Law. The parties agree that this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of Delaware without regard to its conflicts of law
rules.
21. Entire Agreement. Subject to the provisions of
Section 12 hereof, this Agreement constitutes the entire understanding between
the parties and supersedes all proposals, commitments, writings, negotiations
and understandings, oral and written, and all other communications between the
parties relating to the subject matter hereof. This Agreement may not be amended
or otherwise modified except in writing duly executed by all of the parties. A
waiver by any party of any breach or violation of this Agreement shall not be
deemed or construed as a waiver of any subsequent breach or violation thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
RIBAPHARM INC.
By:
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Name:
Title:
INDEMNITEE
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Name:
Title:
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