INDEMNITY AGREEMENT
EXHIBIT 10.1
This
Agreement is made and entered into this ___ day of ___,
______ by and between IDM Pharma, Inc., a Delaware corporation (the “Corporation”), and
____________ (“Agent”).
Recitals
Whereas, Agent performs a valuable service to the Corporation in his capacity as an
[officer/director] of the Corporation;
Whereas, the stockholders of the Corporation have adopted bylaws (the “Bylaws”)
providing for the indemnification of the directors, officers, employees and other agents of the
Corporation, including persons serving at the request of the Corporation in such capacities with
other corporations or enterprises, as authorized by the Delaware General Corporation Law, as
amended (the “Code”);
Whereas, the Bylaws and the Code, by their non-exclusive nature, permit contracts
between the Corporation and its agents, officers, employees and other agents with respect to
indemnification of such persons; and
Whereas, in order to induce Agent to continue to serve as an [officer/director] of
the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;
Now, Therefore, in consideration of Agent’s continued service as an
[officer/director] after the date hereof, the parties hereto agree as follows:
Agreement
1. Services to the Corporation. Agent will serve, at the will of the Corporation or
under separate contract, if any such contract exists, as an [officer/director] of the Corporation
or as a director, officer or other fiduciary of an affiliate of the Corporation (including any
employee benefit plan of the Corporation) faithfully and to the best of his ability so long as he
is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable
charter documents of the Corporation or such affiliate; provided, however, that Agent may at any
time and for any reason resign from such position (subject to any contractual obligation that Agent
may have assumed apart from this Agreement) and that the Corporation or any affiliate shall have no
obligation under this Agreement to continue Agent in any such position.
2. Indemnity of Agent. The Corporation hereby agrees to hold harmless and indemnify
Agent to the fullest extent authorized or permitted by the provisions of the Bylaws and the Code,
as the same may be amended from time to time (but, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than the Bylaws or the Code permitted
prior to adoption of such amendment).
1.
3. Additional Indemnity. In addition to and not in limitation of the indemnification
otherwise provided for herein, and subject only to the exclusions set forth in Section 4 hereof,
the Corporation hereby further agrees to hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally
obligated to pay because of any claim or claims made against or by him in connection with any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Agent is, was or at any time becomes a director, officer,
employee or other agent of Corporation, or is or was serving or at any time serves at the request
of the Corporation as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the
non-exclusivity provisions of the Code and Section 42 of the Bylaws.
4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof
shall be paid by the Corporation:
(a) on account of any claim against Agent for an accounting of profits made from the purchase
or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal,
state or local statutory law;
(b) on account of Agent’s conduct that was knowingly fraudulent or deliberately dishonest or
that constituted willful misconduct;
(c) on account of Agent’s conduct that constituted a breach of Agent’s duty of loyalty to the
Corporation or resulted in any personal profit or advantage to which Agent was not legally
entitled;
(d) for which payment is actually made to Agent under a valid and collectible insurance policy
or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any
excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent
have been advised that the Securities and Exchange Commission believes that indemnification for
liabilities arising under the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to appropriate courts for
adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding
by Agent against the Corporation or its directors, officers, employees or other agents, unless (i)
such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by
the Board of Directors of the Corporation, (iii) such indemnification is provided by the
Corporation, in its sole discretion, pursuant to the powers
2.
vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to
Section 9 hereof.
5. Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Agent is a director, officer, employee or other
agent of the Corporation (or is or was serving at the request of the Corporation as a director,
officer, employee or other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so long as Agent shall be
subject to any possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that
Agent was serving in the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this Agreement to
indemnification by the Corporation for a portion of the expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that
Agent becomes legally obligated to pay in connection with any action, suit or proceeding referred
to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is
entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after receipt
by Agent of notice of the commencement of any action, suit or proceeding, Agent will, if a claim in
respect thereof is to be made against the Corporation under this Agreement, notify the Corporation
of the commencement thereof; but the omission so to notify the Corporation will not relieve it from
any liability which it may have to Agent otherwise than under this Agreement. With respect to any
such action, suit or proceeding as to which Agent notifies the Corporation of the commencement
thereof:
(a) the Corporation will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such defense, assume the
defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation
to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent
under this Agreement for any legal or other expenses subsequently incurred by Agent in connection
with the defense thereof except for reasonable costs of investigation or otherwise as provided
below. Agent shall have the right to employ separate counsel in such action, suit or proceeding
but the fees and expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of
counsel by Agent has been authorized by the Corporation, (ii) Agent shall have reasonably concluded
that there may be a conflict of interest between the Corporation and Agent in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees and expenses of Agent’s separate
counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or
as to which Agent shall have made the conclusion provided for in clause (ii) above; and
3.
(c) the Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its written consent, which shall
not be unreasonably withheld. The Corporation shall be permitted to settle any action except that
it shall not settle any action or claim in any manner which would impose any penalty or limitation
on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. Expenses. The Corporation shall advance, prior to the final disposition of any
proceeding, promptly following request therefor, all expenses incurred by Agent in connection with
such proceeding upon receipt of an undertaking by or on behalf of Agent to repay said amounts if it
shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of
this Agreement, the Bylaws, the Code or otherwise.
9. Enforcement. Any right to indemnification or advances granted by this Agreement
to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request therefor. Agent, in such
enforcement action, if successful in whole or in part, shall be entitled to be paid also the
expense of prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for
expenses pursuant to Section 8 hereof, provided that the required undertaking has been tendered to
the Corporation) that Agent is not entitled to indemnification because of the limitations set forth
in Section 4 hereof. Neither the failure of the Corporation (including its Board of Directors or
its stockholders) to have made a determination prior to the commencement of such enforcement action
that indemnification of Agent is proper in the circumstances, nor an actual determination by the
Corporation (including its Board of Directors or its stockholders) that such indemnification is
improper shall be a defense to the action or create a presumption that Agent is not entitled to
indemnification under this Agreement or otherwise.
10. Subrogation. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of Agent, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Corporation effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement shall
not be exclusive of any other right which Agent may have or hereafter acquire under any statute,
provision of the Corporation’s Certificate of Incorporation or Bylaws, agreement, vote of
stockholders or directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office.
12. Survival of Rights.
(a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to
be a director, officer, employee or other agent of the Corporation or to serve at the request of
the Corporation as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the
benefit of Agent’s heirs, executors and administrators.
4.
(b) The Corporation shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or assets of the
Corporation, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Corporation would be required to perform if no such succession had taken
place.
13. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision hereof shall be held to
be invalid for any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated
in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the
fullest extent provided by the Bylaws, the Code or any other applicable law.
14. Governing Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Delaware.
15. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
16. 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 but one and the same Agreement. Only one such counterpart need be
produced to evidence the existence of this Agreement.
17. Headings. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
18. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to
the party to whom such communication was directed or (ii) upon the third business day after the
date on which such communication was mailed if mailed by certified or registered mail with postage
prepaid:
(a) If to Agent, at the address indicated on the signature page hereof.
(b) If to the Corporation, to
or to such other address as may have been furnished to Agent by the Corporation.
5.
In Witness Whereof, the parties hereto have executed this Agreement on and as of the
day and year first above written.
| IDM Pharma, Inc.: |
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| Agent: |
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