INDEMNITY AGREEMENT
Exhibit 10.32
This Indemnity Agreement (“Agreement”) is made as of by and between
Spectrum Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the corporation.
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and other business
enterprises, the Company believes that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and with more exclusions. At the same
time, directors, officers and other persons in service to corporations or business enterprises are
being increasingly subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the Company or business
enterprise itself. The Bylaws of the Company require indemnification of the officers and directors
of the Company. Indemnitee may also be entitled to indemnification pursuant to applicable
provisions of the Delaware General Corporation Law (“DGCL”). The Bylaws and the DGCL expressly
provide that the 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, officers and other persons with respect to indemnification.
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future.
WHEREAS, it is reasonable, prudent and necessary for 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 so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified.
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.
WHEREAS, Indemnitee does not regard the protection available under the Company’s Bylaws and
insurance as adequate in the present circumstances, and may not be willing to serve as an officer
or director without adequate protection, and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that he be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Services to the Company. Indemnitee will serve or continue to serve as an officer,
director or key employee of the Company for so long as Indemnitee is duly elected or appointed,
until Indemnitee tenders his resignation or until Indemnitee is terminated by the Company, as
applicable.
2. Definitions. As used in this Agreement:
(a) References to “agent” shall mean any person who is or was a director, officer, or
employee of the Company or a subsidiary of the Company or other person authorized by the Company to
act for the Company, to include such person serving in such capacity as a director, officer,
employee, fiduciary or other official of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise at the request of, for the convenience of, or to
represent the interests of the Company or a subsidiary of the Company.
(b) The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth
in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date
hereof.
(c) 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:
(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or
becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting power of the Company’s then outstanding
securities entitled to vote generally in the election of directors, unless (1) the change in the
relative Beneficial Ownership of the Company’s securities by any Person results solely from a
reduction in the aggregate number of outstanding shares of securities entitled to vote generally in
the election of directors, or (2) such acquisition was approved in advance by the Continuing
Directors (as defined below) and such acquisition would not constitute a Change in Control under
part (iii) of this definition;
(ii) Change in Board of Directors. Individuals who, as of the date hereof,
constitute the Board, and any new director whose election by the Board or nomination for election
by the Company’s stockholders was approved by a vote of at least two thirds of the directors then
still in office who were directors on the date hereof or whose election for nomination for election
was previously so approved (collectively, the “Continuing Directors”),
cease for any reason to constitute at least a majority of the members of the Board;
(iii) Corporate Transactions. The effective date of a reorganization, merger or
consolidation of the Company (a “Business Combination”), in each case, unless, following such
Business Combination: (1) all or substantially all of the individuals and entities who were the
Beneficial Owners of securities entitled to vote generally in the election of directors immediately
prior to such Business Combination beneficially own, directly or indirectly, more than 51% of the
combined voting power of the then outstanding securities of the Company entitled to vote generally
in the election of directors resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or more Subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such Business
Combination, of the securities entitled to vote generally in the election of directors; (2) no
Person (excluding any corporation resulting from such Business Combination) is the Beneficial
Owner, directly or indirectly, of 20% or more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors of such corporation except to
the extent that such ownership existed prior to the Business Combination; and (3) at least a
majority of the Board of Directors of the corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial agreement, or of the action of the
Board of Directors, providing for such Business Combination;
(iv) Liquidation. The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements for the sale or disposition by
the Company of all or substantially all of the Company’s assets, other than factoring the Company’s
current receivables or escrows due (or, if such approval is not required, the decision by the Board
to proceed with such a liquidation, sale, or disposition in one transaction or a series of related
transactions); or
(v) Other Events. There occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such reporting requirement.
(d) “Corporate Status” describes the status of a person who is or was a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any
other Enterprise (as defined below) which such person is or was serving at the request of the
Company.
(f) “Disinterested Director” shall mean a director of the Company who is not and was not a
party to the Proceeding (as defined below) in respect of which indemnification is sought by
Indemnitee.
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(g) “Enterprise” shall mean the Company and any other corporation, constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger to which the
Company (or any of its wholly owned subsidiaries) is a party, limited liability company,
partnership, 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, trustee, general partner,
managing member, fiduciary, employee or agent.
(h) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(i) “Expenses” shall include attorneys’ fees and costs, 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
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 (as defined below).
Expenses also shall include Expenses incurred in connection with any appeal resulting from any
Proceeding (as defined below), including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(j) “Independent Counsel” shall mean 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 with respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding
(as defined below) 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.
(k) References to “fines” shall include any excise tax assessed on Indemnitee with respect to
any employee benefit plan; references to “serving at the request of the Company” shall include any
service as a director, officer, employee, agent or fiduciary of the Company which imposes duties
on, or involves services by, such director, officer, employee, agent or fiduciary with respect to
an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as referred to in this Agreement.
(l) The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act as in effect on the date hereof; provided, however, that “Person”
shall
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exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any
employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of
any corporation owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company; and (iv) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary (as
defined below) of the Company or of a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock of the Company.
(m) A “Potential Change in Control” shall be deemed to have occurred if: (i) the Company
enters into an agreement or arrangement, the consummation of which would result in the occurrence
of a Change in Control; (ii) any Person or the Company publicly announces an intention to take or
consider taking actions which if consummated would constitute a Change in Control; (iii) any Person
who becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing
5% or more of the combined voting power of the Company’s then outstanding securities entitled to
vote generally in the election of directors increases his Beneficial Ownership of such securities
by 5% or more over the percentage so owned by such Person on the date thereof; or (iv) the Board
adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
(n) The term “Proceeding” shall include 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 in the right of the
Company or otherwise and whether of a civil (including intentional or unintentional tort claims),
criminal, administrative or investigative nature, 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 or officer of
the Company, by reason of any action (or failure to act) taken by him or of any action (or failure
to act) on his part while acting as a director or officer of the Company, or by reason of the fact
that he is or was serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent of any other 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.
(o) The term “Subsidiary,” with respect to any Person, shall mean any corporation or other
entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify and hold harmless
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is
threatened to be made, a party to or a participant (as a witness or otherwise) 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 3, Indemnitee shall be indemnified against all Expenses, judgments,
liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments
and
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other charges paid or payable in connection with or in respect of such Expenses, judgments,
fines, penalties 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 and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable
cause to believe that his conduct was unlawful.
4. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify
and hold harmless Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was,
is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any
Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee 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 and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. No indemnification for Expenses shall be made under this
Section 4 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 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.
5. Indemnification for Expenses of a Party who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee is a party to
(or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify and
hold harmless Indemnitee against all Expenses actually and reasonably incurred by him 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 and hold harmless Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. If the Indemnitee is not wholly successful in such Proceeding, the Company
also shall indemnify and hold harmless Indemnitee against all Expenses reasonably incurred in
connection with a claim, issue or matter related to any claim, issue, or matter on which the
Indemnitee was successful. 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.
6. 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 and held harmless against
all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
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7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify and
hold harmless Indemnitee 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, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably
incurred by Indemnitee in connection with the Proceeding. No indemnity shall be made under this
Section 7(a) on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of
loyalty to the Company or its stockholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law.
(b) Notwithstanding any limitation in Sections 3, 4, 5 or 7(a), the Company shall indemnify
and hold harmless Indemnitee 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, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably
incurred by Indemnitee in connection with the Proceeding.
8. Contribution in the Event of Joint Liability.
(a) To the fullest extent permissible under applicable law, if the indemnification and hold
harmless rights provided for in this Agreement are unavailable to Indemnitee in whole or in part
for any reason whatsoever, the Company, in lieu of indemnifying and holding harmless Indemnitee,
shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments,
liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the
Company hereby waives and relinquishes any right of contribution it may have at any time against
Indemnitee.
(b) The Company shall not enter into any settlement of any Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against Indemnitee.
(c) The Company hereby agrees to fully indemnify and hold harmless Indemnitee from any claims
for contribution which may be brought by officers, directors or employees of the Company other than
Indemnitee who may be jointly liable with Indemnitee.
9. 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:
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(a) for which payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement, other indemnity provision or
otherwise;
(b) for an accounting of 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
(c) except as otherwise provided in Sections 14(e)-(f) hereof, prior to a Change in Control,
in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized
the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under
applicable law.
10. Advances of Expenses; Defense of Claim.
(a) Notwithstanding any provision of this Agreement to the contrary, and to the fullest
extent permitted by applicable law, the Company shall advance the Expenses incurred by Indemnitee
(or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in
connection with any Proceeding within ten (10) 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 and without regard to
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce
this right of advancement, including Expenses incurred preparing and forwarding statements to the
Company to support the advances claimed. This Section 10(a) shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section 9.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which
would impose any Expense, judgment, fine, penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent.
11. Procedure for Notification and Application for Indemnification.
(a) Indemnitee agrees to notify promptly 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
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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.
(b) Indemnitee may deliver to the Company a written application to indemnify and hold
harmless Indemnitee in accordance with this Agreement. Such application(s) may be delivered from
time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion.
Following such a written application for indemnification by Indemnitee, the Indemnitee’s
entitlement to indemnification shall be determined according to Section 12(a) of this Agreement.
12. Procedure upon Application for Indemnification.
(a) A determination with respect to Indemnitee’s entitlement to indemnification shall be made
in the specific case by one of the following methods, which shall be at the election of Indemnitee:
(i) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board
or (ii) by Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to indemnification, including a description
of any reason or basis for which indemnification has been denied. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days
after such determination. Indemnitee shall reasonably 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 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.
(b) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as
provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected
and certifying that the Independent Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the
Board, the Company shall give written notice to Indemnitee advising him of the identity of the
Independent Counsel so selected and certifying that the Independent Counsel so selected meets the
requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice
of selection shall have been received,
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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 Section 2 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 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 of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 11(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may petition the Delaware
Court 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 Delaware Court, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof.
Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(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).
(c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to
fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person, 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 11(b) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the Company (including by its
directors or Independent Counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under Section 12 of this Agreement
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
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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
final judicial determination that any or all such indemnification is expressly prohibited 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 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.
(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 and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(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 Enterprise,
including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise 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 by the Enterprise. The provisions of
this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found 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 other director, officer, trustee,
partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 12 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section
10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 12(a) of this Agreement within thirty (30) days after receipt by the Company of
the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5,
6, 7 or the last sentence of Section 12(a) of this Agreement within forty five (45) days after
receipt by the Company of a written request therefor, (v) a
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contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement,
or (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by the Delaware Court of Indemnity’s rights to such
indemnification, contribution or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Except as set forth herein,
the provisions of Delaware law (without regard to its conflict of laws rules) shall apply to any
such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 12(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a
de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 14, Indemnitee shall be presumed to be entitled to indemnification under
this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be, and the Company may not refer to or
introduce into evidence any determination pursuant to Section 12(a) of this Agreement adverse to
Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant
to this Section 14, Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement
to indemnification (as to which all rights of appeal have been exhausted or lapsed).
(c) If a determination shall have been made pursuant to Section 12(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 14, 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) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 14 that the procedures and presumptions of this 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.
(e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted
by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) advance to Indemnitee, to the fullest extent permitted
by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee (i) to enforce his rights under, or to recover
damages for breach of, this Agreement or any other indemnification,
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advancement or contribution agreement or provision of the Company’s Bylaws now or hereafter in
effect; or (ii) for recovery or advances under any insurance policy maintained by any person for
the benefit of Indemnitee, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance, contribution or insurance recovery, as the case may be.
(f) Interest shall be paid by the Company to Indemnitee at the legal rate under Delaware law
for amounts which the Company indemnifies or is obliged to indemnify for the period commencing with
the date on which Indemnitee requests indemnification, contribution, reimbursement or advancement
of any Expenses and ending with the date on which such payment is made to Indemnitee by the
Company.
15. Establishment of Trust. In the event of a Potential Change in Control, the Company
shall, upon written request by Indemnitee, create a “Trust” for the benefit of Indemnitee and from
time to time upon written request of Indemnitee shall fund such Trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for, participating in or defending any Proceedings, and
any and all judgments, fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such judgments,
fines penalties and amounts paid in settlement) in connection with any and all Proceedings from
time to time actually paid or claimed, reasonably anticipated or proposed to be paid. The trustee
of the Trust (the “Trustee”) shall be a bank or trust company or other individual or entity chosen
by the Indemnitee and reasonably acceptable to the Company. Nothing in this Section 15 shall
relieve the Company of any of its obligations under this Agreement. The amount or amounts to be
deposited in the Trust pursuant to the foregoing funding obligation shall be determined by mutual
agreement of the Indemnitee and the Company or, if the Company and the Indemnitee are unable to
reach such an agreement, by Independent Counsel selected in accordance with Section 12(b) of this
Agreement. The terms of the Trust shall provide that, except upon the consent of both the
Indemnitee and the Company, upon a Change in Control: (a) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee; (b) the Trustee shall
advance, to the fullest extent permitted by applicable law, within two (2) business days of a
request by the Indemnitee and 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, any and all Expenses
to the Indemnitee; (c) the Trust shall continue to be funded by the Company in accordance with the
funding obligations set forth above; (d) the Trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise; and (e) all unexpended funds in such Trust shall revert to the Company upon mutual
agreement by the Indemnitee and the Company or, if the Indemnitee and the Company are unable to
reach such an agreement, by Independent Counsel selected in accordance with Section 12(b) of this
Agreement, that the Indemnitee has been fully indemnified under the terms of this Agreement. The
Trust shall be governed by Delaware law (without regard to its conflicts of laws rules) and the
Trustee shall consent to the exclusive jurisdiction of the Delaware Court in accordance with
Section 23 of this Agreement.
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16. Security. Notwithstanding anything herein to the contrary, to the extent requested by
the Indemnitee and approved by the Board, the Company may at any time and from time to time provide
security to the 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 the Indemnitee,
may not be revoked or released without the prior written consent of the Indemnitee.
17. 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 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. To the extent that a change in applicable law, whether by statute
or judicial decision, permits greater indemnification or advancement of Expenses than would be
afforded currently under the Company’s Bylaws or 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 DGCL and the Company’s Bylaws permit the Company to purchase and maintain insurance
or furnish similar protection or make other arrangements including, but not limited to, providing a
trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of
Indemnitee against any liability asserted against him or incurred by or on behalf of him or in such
capacity as a director, officer, employee or agent of the Company, or arising out of his status as
such, whether or not the Company would have the power to indemnify him against such liability under
the provisions of this Agreement or under the DGCL, as it may then be in effect. The purchase,
establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit
or affect the rights and obligations of the Company or of the Indemnitee under this Agreement
except as expressly provided herein, and the execution and delivery of this Agreement by the
Company and the Indemnitee shall not in any way limit or affect the rights and obligations of the
Company or the other party or parties thereto under any such Indemnification Arrangement.
(c) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees, or agents of the Company or of any other Enterprise which 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 such
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director, officer, trustee, partner, managing member, fiduciary, employee or agent under such
policy or policies. If, at the time the Company receives notice from any source of a Proceeding as
to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has
director and officer liability insurance in effect, the Company shall give prompt notice 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.
(d) 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) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, trustee, partner, managing
member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses from such
Enterprise.
18. Duration of Agreement. All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee serves as a director, officer or key employee of the
Company or as a director, officer, trustee, partner, managing member, fiduciary, employee or agent
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so
long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal
thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by
reason of his Corporate Status, whether or not he is acting in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under this Agreement.
19. 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, paragraph or sentence 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, paragraph or sentence 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
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thereby.
20. Enforcement and Binding Effect.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer or key employee of the Company.
(b) Without limiting any of the rights of Indemnitee under the Bylaws of the Company as they
may be amended from time to time, 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.
(c) The indemnification and advancement of expenses provided by or granted pursuant to this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or of any other Enterprise at the Company’s request, and shall inure to the benefit of
Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other
legal representatives.
(d) The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and substance satisfactory
to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such succession had taken
place.
(e) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from
seeking or obtaining any other relief to which he may be entitled. The Company and Indemnitee
further agree that Indemnitee shall be entitled to such specific performance and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent injunctions, without
the necessity of posting bonds or other undertaking in connection therewith. The Company
acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee
by the Court, and the Company
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hereby waives any such requirement of such a bond or undertaking.
21. Modification and Waiver. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by 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
of this Agreement nor shall any waiver constitute a continuing waiver.
22. Notices. 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
(ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day
after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the Company.
(b) If to the Company, to:
Spectrum Pharmaceuticals, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
or to any other address as may have been furnished to Indemnitee in writing by the Company.
23. Applicable Law and Consent to Jurisdiction. 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. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally: (a) 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;
(b) consent to 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; (c) appoint irrevocably,
to the extent such party is not a resident of the State of Delaware, RL&F Service Corp., One Xxxxxx
Square, 10th Floor, 10th and King Streets, Wilmington, Delaware 19801 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; (d) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court; and (e) 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, or is subject (in whole or in part) to a jury trial.
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24. 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.
25. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the
feminine pronoun where appropriate. 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.
| Spectrum Pharmaceuticals, Inc. | Indemnitee | |||||||||
By:
|
By: | |||||||||
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