INDEMNIFICATION AGREEMENT
Exhibit 10.11
INDEMNIFICATION AGREEMENT (this “Agreement”) dated as of May 26, 2004 by and between
Sucampo Pharmaceuticals, Inc. (the “Company”), a Delaware corporation, and Xxxxxxx Xxxx
(“Indemnitee”):
WHEREAS, competent persons are reluctant to serve a corporation as a director or in another
capacity 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 corporations;
WHEREAS, the Board of Directors of the Company has determined that the ability to attract and
retain such persons is in 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; and
WHEREAS, 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; and
WHEREAS, 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 Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth below
and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement the following terms shall have the
meanings set forth below:
(a) “Board” shall mean the Board of Directors of the Company.
(b) “Change of Control shall mean any of the following events:
(i) Unless approved by the affirmative vote of at least two-thirds of those
members of the Board who are in office immediately prior to the event(s) and who are
not employees of the Company:
(A) the merger or consolidation of the Company with, or the sale of all
or substantially all of the assets of the Company to, any person or entity
or group of associated persons or entities; or
(B) the acquisition of direct or indirect beneficial ownership in the
aggregate of securities of the Company representing [20]% or more of the
total combined voting power of the Company’s then issued and outstanding
securities by any
person or entity, or group of associated persons or
entities acting in concert, not affiliated (within the meaning of the
Securities Act of 1933) with the Company as of the date of this Agreement;
or
(C) approval by the stockholders of the Company of any plan or proposal
for the liquidation or dissolution of the Company; or
(i) A change in the composition of the Board at any time during any consecutive
24-month period such that the “Continuing Directors” cease for any reason to
constitute at least a [70]% majority of the Board. For purposes of this clause (ii),
“Continuing Directors” means those members of the Board who either:
(A) were members of the Board at the beginning of such consecutive
24-month period; or
(B) were elected by, or on the nomination or recommendation of, at
least a two-thirds majority (consisting of at least five directors) of the
then-existing Board.
(c) “Corporate Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is or was serving at
the express written request of the Company.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the
express written request of the Company as a director, officer, employee, agent or fiduciary.
(f) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in a Proceeding.
(g) “Good Faith” shall mean Indemnitee having acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company, and, with respect
to any criminal Proceeding, having had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
(h) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
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has been, retained
to represent: (i) the Company or Indemnitee in any matter material to either such party or (ii) any
other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under
this Agreement.
(i) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other actual, threatened or completed
proceeding whether civil, criminal, administrative or investigative, other than one initiated by
Indemnitee. For purposes of the foregoing sentence, a “Proceeding” shall not be deemed to have been
initiated by Indemnitee where Indemnitee seeks pursuant to Section 9 of this Agreement to enforce
Indemnitee’s rights under this Agreement.
2. Term of Agreement. This Agreement shall continue until and terminate upon the later
of: (a) 10 years after the date that Indemnitee has ceased to serve as a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which Indemnitee served at the express
written request of the Company or (b) the final termination of all pending Proceedings in respect
of which Indemnitee is granted rights of indemnification or advancement of expenses hereunder and
of any proceeding commenced by Indemnitee pursuant to Section 9 of this Agreement relating thereto.
In addition, no legal action shall be brought and no cause of action shall be asserted by or in the
right of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal
or legal representatives after the expiration of five (5) years from the date of accrual of such
cause of action, and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such five (5) year period;
PROVIDED, HOWEVER, that if any shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
3. Services by Indemnitee, Notice of Proceedings.
(a) Services. Indemnitee agrees to serve as a director of the Company. Indemnitee may
at any time and for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law).
(b) Notice of Proceeding. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter that may be subject to indemnification or advancement
of Expenses covered hereunder.
4. Indemnification.
(a) In General. In connection with any Proceeding, the Company shall indemnify and
advance Expenses to Indemnitee as provided in this Agreement and to the fullest
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extent permitted by
applicable law in effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit.
(b) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4(b) if, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be made, a party to any
Proceeding, other than a Proceeding by or in the right of the Company. Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and amounts paid in settlements actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding
or any claim, issue or matter therein, if Indemnitee acted in Good Faith including without
limitation, any and all losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit, proceeding or any claim asserted) under the Securities Act
of 1933, the Securities Exchange Act of 1934, as amended (the “Exchange Act of 1934”) or other
federal or state statutory law or regulation, at common law or otherwise or which relate directly
or indirectly to the registration, purchase, sale or ownership of any securities of the Company or
to any fiduciary obligation owed with respect thereto or as a direct or indirect result of any
Proceeding or any claim, issue or matter therein made by any stockholder of the Company against
Indemnitee and arising out of or related to any round of financing of the Company (including but
not limited to Proceedings or any claims, issues or matters therein regarding non- participation,
or non-pro rata participation, in such round by such stockholder), or made by a third party against
Indemnitee based on any misstatement or omission of a material fact by the Company in violation of
any duty of disclosure imposed on the Company by federal or state securities or common laws.
(c) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 4(c) if, by reason of Indemnitee’s Corporate
Status, Indemnitee is or is threatened to be made a party to any Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Indemnitee shall be indemnified against
Expenses, judgments, penalties and amounts paid in settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in Good
Faith. Notwithstanding the foregoing, no such indemnification shall be made in respect of any
claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be
liable to the Company if applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification shall nevertheless be made by the Company in such event
if and only to the extent that the Court of Chancery of the State of Delaware, or the court in
which such Proceeding shall have been brought or is pending, shall determine.
(d) Indemnification of a Party Who is Wholly or Partly Successful. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified to the maximum extent permitted by law against all Expenses,
judgments, penalties, fines and amounts paid in settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith. If
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Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
to the maximum extent permitted by law, against all Expenses, judgments, penalties, fines and
amounts paid in settlement, actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with each successfully resolved claim, issue or matter. For purposes of this
Section 4(d) 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, so long as there has been no finding (either adjudicated or pursuant
to Section 6) that Indemnitee did not act in Good Faith.
(e) Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
(f) Assumption of Defense and Settlement. Notwithstanding any other provision of this
Agreement, with respect to any such Proceeding as to which the Indemnitee gives notice to the
Company of the commencement thereof:
(1) the Company will be entitled to participate therein at its own expense;
(2) the Company, jointly with any other indemnifying party similarly notified,
shall be entitled to assume the defense thereof, with counsel satisfactory to the
Indemnitee. If the Company assumes the defense of the Indemnitee, it shall notify
the Indemnitee, and after the Indemnitee receives such notice, the Company shall not
be liable to the Indemnitee under this Agreement for any Expenses incurred by the
Indemnitee after the date such notice was received. The Indemnitee shall be entitled
to employ Indemnitee’s own counsel at Indemnitee’s own expense. Nevertheless, the
Company shall pay for Indemnitee’s own counsel if (1) the Company agrees to do the
same, (2) the Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and the Indemnitee regarding the defense of
such action, or (3) the Company shall not in fact have employed counsel to assume
the defense of the Proceeding. The Company shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Company or as to which the
Indemnitee shall have reasonably concluded that there may be a conflict of interest
between the Company and the Indemnitee regarding the defense of such Proceeding; and
(3) the Company shall not be liable to the Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding unless the Company consents to such
settlement. The Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on the Indemnitee without the Indemnitee’s written
consent. Neither the Company nor
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the Indemnitee will unreasonably withhold their
consent to any proposed settlement.
(g) Contribution.
(1) Notwithstanding any other provision of this Agreement, if the
indemnification provided for in this Section 4 for any reason is held by a court of
competent jurisdiction to be unavailable to Indemnitee in respect of any losses,
claims, damages, expenses or liabilities referred to therein, then the Company, in
lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid or
payable by Indemnitee as a result of such losses, claims, damages, expenses or
liabilities
(A) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Indemnitee; or
(B) if the allocation provided by clause (A) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (A) above but also the relative
fault of the Company and Indemnitee in connection with the action or
inaction which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations.
(2) In connection with the registration of the Company’s securities, the
relative benefits received by the Company and Indemnitee shall be deemed to be in
the same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and Indemnitee, in each case as set
forth in the table on the cover page of the applicable prospectus, bear to the
aggregate public offering price of the securities so offered. The relative fault of
the Company and Indemnitee shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or Indemnitee and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The
Company and Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 4(g) were determined by pro rata or per capita allocation
or by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
(3) In connection with the registration of the Company’s securities, in no
event shall Indemnitee be required to contribute any amount under this Section 4(g)
in excess of the lesser of:
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(C) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total
securities sold under such registration statement which is being sold by
Indemnitee; or
(D) the proceeds received by Indemnitee from its sale of securities
under such registration statement.
(4) Persons found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act of 1933) shall only be entitled to contribution
from any person who was found guilty of such fraudulent misrepresentation.
5. Exceptions
Any other provision herein to the contrary notwithstanding, the Company shall not be obligated
pursuant to the terms of this Agreement:
(a) Claims Under Section 16(b)
To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and
sale by Indemnitee of securities in violation of Section 16(b) of the Exchange Act of 1934 or any
similar successor statute; or
(b) Unlawful Indemnification.
To indemnify Indemnitee if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
6. Advancement of Expenses. Notwithstanding any provision to the contrary in Section
7, the Company shall advance all reasonable Expenses which, by reason of Indemnitee’s Corporate
Status, were incurred by or on behalf of Indemnitee in connection with any Proceeding, within 20
days after the receipt by the Company of a statement or statements from Indemnitee requesting such
advance or advances, whether prior to or after final disposition of such Proceeding. Such statement
or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall be preceded
or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.
Any advance and undertakings to repay pursuant to this Section 6 shall be unsecured and interest
free.
7. Procedures for Determination of Entitlement to Indemnification.
(a) Initial Request. To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
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Secretary of the Company
shall promptly advise the Board in writing that Indemnitee has requested indemnification.
(b) Method of Determination. A determination (if required by applicable law) with
respect to Indemnitee’s entitlement to indemnification shall be made as follows:
(1) if a Change in Control has occurred, unless Indemnitee shall request in
writing that such determination be made in accordance with clause (2) of this
Section 7(b), the determination shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to Indemnitee;
(2) if a Change of Control has not occurred, the determination shall be made by
the Board by a majority vote of Disinterested Directors, even though less than a
quorum. In the event that there are no Disinterested Directors or if such
Disinterested Directors so direct, the determination shall be made by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee.
(c) Selection, Payment, Discharge, of Independent Counsel. In the event the
determination of entitlement to indemnification is to be made by Independent Counsel pursuant
to Section 7(b) of this Agreement, the Independent Counsel shall be selected, paid and
discharged in the following manner:
(1) If a Change of Control has not occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising Indemnitee of the identity of the Independent Counsel so selected.
(2) If a Change of Control has occurred, the Independent Counsel shall be
selected by Indemnitee (unless Indemnitee shall request that such selection be made
by the Board, in which event clause (1) of this Section 7(c) shall apply), and
Indemnitee shall give written notice to the Company advising it of the identity of
the Independent Counsel so selected.
(3) Following the initial selection described in clauses (1) and (2) of this
Section 7(c), Indemnitee or the Company, as the case may be, may, within seven days
after such written notice of selection has been given, deliver to the other party a
written objection to such selection. Such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent Counsel. If such
written objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such objection is
without merit.
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(4) Either the Company or Indemnitee may petition any court of competent
jurisdiction if the parties have been unable to agree on the selection of
Independent Counsel within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 7(a) of this Agreement. Such
petition may request a determination whether an objection to the party’s selection
is without merit and/or seek the appointment as Independent Counsel of a person
selected by the Court or by such other person as the Court shall designate. A person
so appointed shall act as Independent Counsel under Section 7(b) of this Agreement.
(5) The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with acting
pursuant to this Agreement, and the Company shall pay all reasonable fees and
expenses incident to the procedures of this Section 7(c), regardless of the manner
in which such Independent Counsel was selected or appointed.
(6) Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 9(c) 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).
(d) Cooperation. Indemnitee shall cooperate with the person, persons or entity making
the determination with respect to Indemnitee’s entitlement to indemnification under this Agreement,
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.
(e) Payment. If it is determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within 10 days after such determination.
8. Presumptions and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to entitlement to
Indemnification hereunder, the person or persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 7(a), 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.
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(b) Effect of Other Proceedings. 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.
(c) Reliance as Safe Harbor. 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 with reasonable care by the Enterprise. The provisions of this Section 8(c) shall not be
deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) Actions of Others. The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this Agreement.
9. Remedies of Indemnitee.
(a) Application. This Section 9 shall apply in the event of a Dispute. For purposes of
this article, “Dispute” shall mean any of the following events:
(1) a determination is made pursuant to Section 7 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement;
(2) advancement of Expenses is not timely made pursuant to Section 6 of this
Agreement;
(3) if the determination of entitlement to be made pursuant to Section 7(b) of
this Agreement is to be made by the Board and the Board has not made such
determination within 60 days after receipt by the Company of the request for
indemnification;
(4) if the determination of entitlement to be made pursuant to Section 7(b) of
this Agreement is to be made by Independent Counsel and Independent Counsel has not
made such determination within 90 days after receipt by the Company of the request
for indemnification;
(5) payment of indemnification is not made pursuant to Section 4(e) of this
Agreement within 10 days after receipt by the Company of a written request therefor;
or
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(6) payment of indemnification is not made within 10 days after a determination
has been made that Indemnitee is entitled to indemnification or such determination
is deemed to have been made pursuant to Section 7 of this Agreement.
(b) Adjudication. In the event of a Dispute, Indemnitee shall be entitled to an
adjudication in an appropriate court in the State of Delaware, or in any other court of competent
jurisdiction, of Indemnitee’s entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted
by a single arbitrator pursuant to the rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such proceeding pursuant to
this Section 9(b). The Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(c) De Novo Review. In the event that a determination shall have been made pursuant to
Section 7 of this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 9 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 such proceeding or arbitration, the Company shall have the
burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be.
(d) Company Bound. If a determination shall have been made or deemed to have been made
pursuant to Section 7 of this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding or arbitration 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.
(e) Procedures Valid. The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 9 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 of the provisions of this Agreement.
(f) Expenses of Adjudication. In the event that Indemnitee, pursuant to this Section
9, seeks a judicial adjudication of or an award in arbitration to enforce Indemnitee’s rights
under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover
from the Company, and shall be indemnified by the Company against, any and all expenses (of the
types described in the definition of Expenses in this Agreement) actually and reasonably incurred
by Indemnitee in such adjudication or arbitration, but only if Indemnitee prevails therein. If it
shall be determined in such adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or advancement of expenses sought, the
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expenses incurred by
Indemnitee in connection with such adjudication or arbitration shall be appropriately prorated.
10. Non-exclusivity, Insurance, Subrogation.
(a) Non-Exclusivity. 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 Certificate of Incorporation, the
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. 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 Corporate Status prior to such amendment, alteration, rescission or replacement.
(b) Insurance. The Company may maintain an insurance policy or policies against
liability arising out of this Agreement or otherwise.
(c) Subrogation. 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.
(d) No Duplicative Payment. The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee
has otherwise actually received such payment under any insurance policy, contract, agreement or
otherwise.
11. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes any prior understandings,
agreements or representations, written or oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts, each of
which will be an original and all of which taken together shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provision of this Agreement
will not be affected or impaired thereby.
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(d) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal representatives and successors
and assigns.
(e) Modification, Amendment, Waiver or Termination. No provision of this Agreement may
be modified, amended, waived or terminated except by an instrument in writing signed by the parties
to this Agreement. No course of dealing between the parties will modify, amend, waive or terminate
any provision of this Agreement or any rights or obligations of any party under or by reason of
this Agreement.
(f) Notices. All notices, consents, requests, instructions, approvals or other
communications provided for herein shall be in writing and delivered by personal delivery,
overnight courier, mail, electronic facsimile or e-mail addressed to the receiving party at the
address set forth herein. All such communications shall be effective when received.
If to the Company:
Xxxxxx X. XxxXxxxxxxx
c/o Sucampo Pharmaceuticals, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. XxxXxxxxxxx
c/o Sucampo Pharmaceuticals, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
If to the Indemnitee:
Xxxxxxx Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Any party may change the address set forth above by notice to each other party given as
provided herein.
(g) Headings. The headings and any table of contents contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or interpretation of this
Agreement.
(h) Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY
AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
(i) Third-Party Benefit. Nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights, remedies, obligations or liabilities of any nature
whatsoever.
(j) Jurisdiction and Venue. THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR
STATE COURT SITTING IN DELAWARE, AND
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EACH PARTY CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH
COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUM IS NOT CONVENIENT. IF ANY PARTY COMMENCES
ANY ACTION UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP
CREATED BY THIS AGREEMENT IN ANOTHER JURISDICTION OR VENUE, ANY OTHER PARTY TO THIS AGREEMENT SHALL
HAVE THE OPTION OF TRANSFERRING THE CASE TO THE ABOVE-DESCRIBED VENUE OR JURISDICTION OR, IF SUCH
TRANSFER CANNOT BE ACCOMPLISHED, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
(k) Remedies. The parties agree that money damages may not be an adequate remedy for
any breach of the provisions of this Agreement and that any party may, in its discretion, apply to
any court of law or equity of competent jurisdiction for specific performance and injunctive relief
in order to enforce or prevent any violations this Agreement, and any party against whom such
proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at
law and agrees not to raise the defense that the other party has an adequate remedy at law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
in the first paragraph.
| SUCAMPO PHARMACEUTICALS, INC. | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Its: Chief Executive Officer | ||||
| /s/ Xxxxxxx Xxxx | ||||
| Xxxxxxx Xxxx | ||||
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