Exhibit 10.12
INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement") is made and
entered into as of the _____ day of _______, 2004 by and between INHIBITEX,
INC., a Delaware corporation ("Indemnitor") and ___________ ("Indemnitee").
WHEREAS, Indemnitee is serving as a director, officer and/or
employee of Indemnitor and may, at Indemnitor's request serve as a director,
officer and/or employee of subsidiaries of Indemnitor and/or other corporations,
limited liability companies, partnerships, joint ventures, trusts or other
enterprises or entities (each a "Related Entity" and collectively, "Related
Entities");
WHEREAS, the Amended and Restated Certificate of Incorporation
of Indemnitor (the "Charter") provides that Indemnitor shall indemnify certain
persons, including directors, officers, employees or agents of Indemnitor,
against specified expenses and losses arising out of certain threatened, pending
or completed actions, suits or proceedings as permitted by the Delaware General
Corporation Law, as amended (the "DGCL");
WHEREAS, Indemnitee has indicated that he or she may not be
willing to serve or continue to serve as a director, officer and/or employee of
Indemnitor and/or any Related Entity in the absence of indemnification in
addition to that provided in the Charter;
WHEREAS, DGCL Section 145(f) expressly recognizes that the
indemnification provisions of the DGCL are not exclusive of any other rights to
which a person seeking indemnification may be entitled under charter, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise;
WHEREAS, the Charter expressly recognizes that the
indemnification provisions of the Charter shall not be deemed exclusive of, and
shall not affect, any other rights to which a person seeking indemnification may
be entitled under any agreement, and this Agreement is being entered into
pursuant to the Charter as permitted by the DGCL; and
WHEREAS, Indemnitor, in order to induce Indemnitee to serve in
such capacity, has agreed to provide Indemnitee with the benefits contemplated
by this Agreement, and, as a result of the provision of such benefits,
Indemnitee has agreed to serve in such capacity.
NOW, THEREFORE, in consideration of the promises, conditions
and representations set forth herein, and for other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged,
Indemnitor and Indemnitee hereby agree as follows:
SECTION 1. DEFINITIONS. The following terms, as used herein,
shall have the following meanings:
(a) "Covered Claim" shall mean any threatened or pending
claim, action, suit, arbitration, alternative dispute resolution or other
proceeding, against Indemnitee (whether such claim is asserted by or in the
right of Indemnitor or otherwise) based upon or arising out of any past, present
or future act, omission, neglect or breach of duty, including, without
limitation, any actual or alleged error, omission, misstatement or misleading
statement, that Indemnitee may commit or suffer, or may have committed or
suffered, while serving in his capacity as a director, officer, employee and/or
agent of Indemnitor and/or (at Indemnitor's request) any Related Entity,
provided that such claim:
(i) is not solely based upon and does not arise
solely out of Indemnitee gaining in fact any personal profit or
advantage to which Indemnitee is not legally entitled;
(ii) is not for any accounting of profits made
from the purchase or sale by Indemnitee of securities of Indemnitor
within the meaning of Section 16(b) of the Securities Exchange Act of
1934, as amended, or similar provisions of any state law; and
(iii) is not based solely upon and does not arise
solely out of Indemnitee's knowingly fraudulent, deliberately dishonest
or willful misconduct.
(b) "Determination" shall mean a determination, based
upon the facts known at the time, made by:
(i) the Board of Directors of Indemnitor, by the
vote of a majority of the directors who are not parties to the action,
suit or proceeding in question ("Disinterested Directors"), at a
meeting at which there is a quorum;
(ii) by independent legal counsel in a written
opinion, if there are no such Disinterested Directors or if directed by
a majority of such Disinterested Directors at a meeting of the Board of
Directors of Indemnitor at which there is a quorum;
(iii) the stockholders of Indemnitor; or
(iv) a court of competent jurisdiction in a
final, nonappealable adjudication.
If there has been a Change in Control (as defined below), the determination
referred to above shall be made by independent legal counsel in a written.
For the purposes hereof, "independent legal counsel" as used in Section 1(b)(ii)
hereof shall be selected by the Indemnitee and approved by the Indemnitor (which
approval shall not be unreasonably withheld) and shall not be any person or firm
who, under applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either Indemnitor or Indemnitee in
an action to determine the Indemnitee's rights under this Agreement.
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For purposes of this Agreement, a "Change in Control" of Indemnitor shall mean
and include each of the following: (i) the acquisition, in one or more
transactions, of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act) by any person or entity or any group of persons or entities
who constitute a group (within the meaning of Section 13(d)(3) of the Exchange
Act), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Indemnitor or any subsidiary thereof, of any
securities of the Indemnitor such that, as a result of such acquisition, such
person, entity or group either (A) beneficially owns (within the meaning of Rule
13d-3 under the Exchange Act), directly or indirectly, more than 35% of the
Indemnitor's outstanding voting securities entitled to vote on a regular basis
for a majority of the members of the Board of Directors of the Indemnitor or (B)
otherwise has the ability to elect, directly or indirectly, a majority of the
members of the Board; (ii) a change in the composition of the Board of Directors
of the Indemnitor such that a majority of the members of the Board of Directors
of the Indemnitor are not Continuing Directors (as defined below); (iii) the
stockholders of the Indemnitor approve a merger or consolidation of the
Indemnitor with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Indemnitor outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the total voting power represented by the voting
securities of the Indemnitor or such surviving entity outstanding immediately
after such merger or consolidation; or (iv) the stockholders of the Indemnitor
approve a plan of complete liquidation of the Indemnitor or an agreement for the
sale or disposition by the Indemnitor of (in one or more transactions) all or
substantially all of the Indemnitor's assets. For the purposes of this Section
1(b), a "Continuing Director" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board on
the date which is twenty-four months prior to the date of determination or (ii)
was nominated for election or elected to such Board with the affirmative vote of
a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
(c) "Payment" shall mean any and all amounts that
Indemnitee is or becomes legally obligated to pay in connection with a Covered
Claim, including, without limitation, damages, judgments, fines, penalties,
amounts paid in settlement, reasonable costs of investigation, reasonable fees
of attorneys, costs of investigative, judicial or administrative proceedings or
appeals, and costs of attachment or similar bonds.
SECTION 2. INDEMNIFICATION. Indemnitor shall indemnify and
hold harmless Indemnitee against and from any and all Payments to the extent
that:
(a) Indemnitor shall not have advanced expenses to
Indemnitee pursuant to the provisions of Article ___ of the Charter of
Indemnitor or otherwise and no Determination shall have been made pursuant to
such Article or the DGCL that Indemnitee is not entitled to indemnification;
(b) Indemnitee shall not already have received payment on
account of such Payments pursuant to one or more valid and collectable insurance
policies; and
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(c) such indemnification by Indemnitor is not determined
by a court of competent jurisdiction as unlawful.
Notwithstanding anything contained in this Agreement to the contrary, except for
proceedings to enforce rights to indemnification or advancement of expenses
pursuant to Section 4 hereof, Indemnitor shall have no obligation to indemnify
Indemnitee in connection with a proceeding (or part thereof) initiated by
Indemnitee unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors of Indemnitor. Further, Indemnitor shall have no
obligation to indemnify Indemnitee under this Agreement for any amounts paid in
a settlement of any action, suit or proceeding effected without Indemnitor's
written consent, which consent shall not be unreasonably withheld. Without
Indemnitee's prior written consent, Indemnitor shall not settle any claim in any
manner that (x) would impose any obligation on Indemnitee that would not be
indemnified against by Indemnitor under this Agreement and (y) does not include
a complete and irrevocable release of Indemnitee. Indemnitee shall not
unreasonably withhold his consent to any proposed settlement.
SECTION 3. INDEMNIFICATION PROCEDURE; ADVANCEMENTS OF COSTS
AND EXPENSES.
(a) Promptly after receipt by Indemnitee of notice of the
commencement or threat of commencement of any action, suit or proceeding,
Indemnitee shall, if indemnification with respect thereto may be sought from
Indemnitor under this Agreement, notify Indemnitor thereof in writing. Failure
to give such notice shall not affect right to indemnification provided herein
except and to the extent Indemnitor is materially prejudiced by such failure.
(b) If, at the time of receipt of such notice Indemnitor
has directors' and officers' liability insurance in effect, and such insurance
would provide insurance with respect to the Covered Claim, Indemnitor shall give
prompt notice of the commencement of such action, suit or proceeding to the
insurers in accordance with the procedures set forth in the respective policies
in favor of Indemnitee. Indemnitor shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
Payments payable as a result of such action, suit or proceeding in accordance
with the terms of such policies.
(c) Subject to Section 3(d), all costs and expenses,
including reasonable fees of attorneys, incurred by Indemnitee in defending or
investigating such action, suit or proceeding shall be paid by Indemnitor in
advance of the final disposition of such action, suit or proceeding; provided,
however, that no such costs or expenses shall be paid by Indemnitor if, with
respect to such action, suit or proceeding, a Determination is made that:
(i) Indemnitee did not act in good faith and in
a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of Indemnitor; or
(ii) in the case of any criminal action or
proceeding, Indemnitee had reasonable cause to believe his conduct was
unlawful.
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The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that Indemnitee did not satisfy the
foregoing standard of conduct to the extent applicable thereto.
Indemnitee hereby undertakes to and agrees that he will repay Indemnitor for any
costs or expenses advanced by or on behalf of Indemnitor pursuant to this
Section 3(c) if it shall ultimately be determined by a court of competent
jurisdiction in a final, nonappealable adjudication that Indemnitee is not
entitled to indemnification under this Agreement.
(d) If Indemnitor shall advance the costs and expenses of
any such action, suit or proceeding pursuant to Section 3(c) of this Agreement,
it shall be entitled to assume the defense of such action, suit or proceeding,
if appropriate, with counsel reasonably satisfactory to Indemnitee, upon
delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, Indemnitor shall not be liable to Indemnitee under this
Agreement for any costs or expenses subsequently incurred by Indemnitee in
connection with such defense other than costs and expenses of investigation;
provided, however, that:
(i) Indemnitee shall have the right to employ
separate counsel in any such action, suit or proceeding, provided that
the fees and expenses of such counsel incurred after delivery of notice
by Indemnitor of its assumption of such defense shall be at
Indemnitee's own expense; and, provided, further, that
(ii) the fees and expenses of counsel employed by
Indemnitee shall be at the expense of Indemnitor if (aa) the employment
of counsel by Indemnitee has previously been authorized by Indemnitor,
(bb) Indemnitee shall have reasonably concluded based on the written
opinion of counsel reasonably acceptable to Indemnitor that there is,
or will likely be, a conflict of interest between Indemnitor and
Indemnitee in the conduct of any such defense; provided, however, that
Indemnitor shall not be required to pay for more than one counsel to
represent two or more Indemnitees unless such Indemnitees shall have
reasonably concluded that there is a conflict of interest among them in
the conduct of such defense, or (cc) Indemnitor shall not, in fact,
have employed counsel to assume the defense of such action, suit or
proceeding.
(e) All payments on account of Indemnitor's advancement
obligations under Section 3(c) of this Agreement shall be made within ten (10)
days of Indemnitee's written request therefor. All other payments on account of
Indemnitor's obligations under this Agreement shall be made within thirty (30)
days of Indemnitee's written request therefor, unless a Determination is made
that the claims giving rise to Indemnitee's request are not payable under this
Agreement. Each request for payment hereunder shall be accompanied by evidence
of Indemnitee's incurrence of the costs and expenses for which such payment is
sought.
SECTION 4. ENFORCEMENT OF INDEMNIFICATION; BURDEN OF PROOF. If
a claim for indemnification or advancement of costs and expenses under this
Agreement is not paid in full by or on behalf of Indemnitor within the time
period specified in Section 3(e) of this Agreement, Indemnitee may at any time
thereafter bring suit against Indemnitor to recover the
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unpaid amount of such claim. In any such action, Indemnitor shall have the
burden of proving that indemnification is not required under this Agreement.
It is the intent of Indemnitor that Indemnitee not be required to incur the
expenses associated with the enforcement of his rights under this Agreement by
litigation or other legal action because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Indemnitee
hereunder. Accordingly, if Indemnitor fails to comply with any of its
obligations under the Agreement or in the event that Indemnitor or any other
person takes any action to declare the Agreement void or unenforceable, or
institutes any action, suit or proceeding designed (or having the effect of
being designed) to deny, or to recover from, Indemnitee the benefits intended to
be provided to Indemnitee hereunder, Indemnitor irrevocably authorizes
Indemnitee from time to time to retain counsel of his choice, at the expense of
Indemnitor as hereafter provided, to represent Indemnitee in connection with the
initiation or defense of any litigation or other legal action, whether by or
against Indemnitor or any director, officer, stockholder or other person
affiliated with Indemnitor, in any jurisdiction. Regardless of the outcome
thereof, Indemnitor shall pay and be solely responsible for any and all costs,
charges and expenses, including without limitation reasonable attorneys' and
others' fees and expenses, reasonably incurred by the Indemnitee as a result of
Indemnitor or any person contesting the validity or enforceability of this
Agreement or any provision thereof as aforesaid; provided, however, that
Indemnitor shall not so pay or be so responsible if it is determined by a court
of competent jurisdiction that to so pay and be so responsible would be
unlawful.
SECTION 5. AMENDMENT TO CHARTER OR BYLAWS. Indemnitor shall
not adopt any amendment to the Charter, as amended to date or its Amended and
Restated Bylaws (the "Bylaws"), the effect of which would be to deny, diminish
or encumber Indemnitee's rights to indemnity pursuant to the Charter, the
Bylaws, the DGCL or any other applicable law as applied to any act or failure to
act occurring in whole or in part prior to the date (the "Effective Date") upon
which the amendment was approved by the Board of Directors of Indemnitor or the
stockholders of Indemnitor, as the case may be. In the event that Indemnitor
shall adopt any amendment to the Charter or the Bylaws the effect of which is to
so deny, diminish or encumber the Indemnitee's rights to indemnity, such
amendment shall apply only to acts or failures to act occurring entirely after
the Effective Date thereof. In the event of any change after the date of this
Agreement in any applicable law, statute or rule, which expands the right of a
Delaware corporation to indemnify a member of its Board of Directors or an
officer, employee, controlling person, agent or fiduciary, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors or an officer, employee, agent or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as otherwise
set forth herein.
SECTION 6. EMPLOYEE BENEFIT PLANS. The term "other enterprises
or entities," as used in this Agreement, shall include employee benefit plans.
All references in this Agreement to, "serving...at Indemnitor's request" shall
include any service by Indemnitee as a director, officer and/or employee of
Indemnitor, which imposes duties on, or involves services
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by, Indemnitee with respect to an employee benefit plan, its participants or
beneficiaries. If Indemnitee acts in good faith and in a manner he reasonably
believes to be in the interests of the participants and beneficiaries of an
employee benefit plan, then, for purposes of Section 3(c)(i) hereof, Indemnitee
shall be deemed to have acted in a manner he "reasonably believed to be in or
not opposed to the best interests of Indemnitor."
SECTION 7. RIGHTS NOT EXCLUSIVE. The rights to indemnification
and advancement of costs and expenses provided hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under any
charter document, bylaw, agreement, insurance policy, vote of stockholders or
disinterested directors or otherwise.
SECTION 8. SUBROGATION. In the event of payment under this
Agreement by or on behalf of Indemnitor, Indemnitor shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who
promptly shall execute, at the sole expense of Indemnitor, all papers that may
be required and, at the sole expense of Indemnitor, promptly shall do all things
that may be necessary to secure such rights, including, without limitation, the
execution of such documents as may be necessary to enable Indemnitor effectively
to bring suit to enforce such rights.
SECTION 9. CONTINUATION OF OBLIGATIONS. All agreements and
obligations of Indemnitor contained herein shall continue during the period
Indemnitee is a director, officer, employee or agent of Indemnitor (or is or was
serving at the request of Indemnitor as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise) and shall continue thereafter so long as Indemnitee shall
be subject to any possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative, by reason of the
fact that Indemnitee was an officer or director of Indemnitor or serving in any
other capacity referred to herein.
SECTION 10. CHOICE OF LAW. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Delaware without reference to the conflicts of law provisions thereof.
SECTION 11. ATTORNEYS' FEES. Subject to Section 4 hereof, if
any action, suit or proceeding is commenced by Indemnitor or Indemnitee to
enforce or interpret any of the terms of this Agreement, the prevailing party
shall be entitled to have its costs and expenses, including, without limitation,
reasonable attorneys' fees and reasonable expenses of investigation, paid by the
losing party.
SECTION 12. SEVERABILITY. In the event that any provision of
this Agreement shall be declared invalid or unenforceable, such invalidity or
enforceability shall not affect the validity or enforceability of the other
provisions of this Agreement, it being hereby agreed that such provisions are
severable and that this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted. The parties hereto agree that
the provisions set forth herein are reasonable under the circumstances, and
further agree that if in the opinion of any court of competent jurisdiction, any
provision herein is determined to be invalid or unenforceable, said court is
authorized and requested to modify such provision so as to cause it to be a
valid, and enforceable provision that will achieve, to the extent possible, the
economic,
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business and other purposes of such invalid or enforceable provision and to
enforce such provision as modified.
SECTION 13. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon all successors and assigns of Indemnitor, including any transferee
of all or substantially all of its assets and any successor by merger or
otherwise by operation of law, and shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors and assigns of
Indemnitee.
SECTION 14. NOTICES. All notices and communications hereunder
shall be in writing and shall be sent by registered or certified mail, return
receipt requested, mailed by overnight courier, or sent by facsimile
transmission (provided that any such facsimile transmission is promptly
confirmed by delivery or mailing the original executed notice by one of the
other methods provided for in this Section) addressed to the party for whom or
for which intended, in the case of Indemnitor, to its then principal executive
office, or at such other address of which Indemnitor shall have given notice to
Indemnitee in the manner herein provided, and in the case of Indemnitee, at his
residence address as set forth in the records of Indemnitor or at such other
address of which he shall have given notice to Indemnitor in the manner herein
provided.
SECTION 15. PRIOR AGREEMENTS; WAIVERS. Subject to Section 7,
this Agreement contains the entire understanding between the parties hereto with
respect to the subject matter hereof and, except as contemplated hereby,
supersedes all prior agreements and understandings with respect to the subject
matter hereof. No waiver shall be deemed to be made by either of the parties to
any of its or his rights hereunder unless that waiver shall be in a writing
signed by the waiving party and any such waiver shall only be effective to the
extent set forth therein.
SECTION 16. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing
contained in this Agreement shall be construed as giving Indemnitee any right to
be retained in the employ of Indemnitor or any of its subsidiaries.
SECTION 17. DESCRIPTIVE HEADINGS. The descriptive headings in
this Agreement are included for the convenience of the parties only and shall
not affect the construction of this Agreement.
SECTION 18. COUNTERPARTS. This Agreement may be executed in
two counterparts, both of which taken together shall constitute one document.
SECTION 19. AMENDMENT. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless made in writing and
signed by each of the parties hereto.
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IN WITNESS WHEREOF, Indemnitor and Indemnitee have executed
this Agreement as of the day and year first above written.
INHIBITEX, INC.
By: _____________________________
Name:
Title:
INDEMNITEE:
_________________________________
Name:
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