Exhibit 10.32
FORM OF INDEMNIFICATION AGREEMENT
This Agreement, made and entered into this __ day of ______________, 2005
("Agreement"), by and between CombinatoRx, Incorporated, a Delaware corporation
(the "Company"), and _____________ ("Indemnitee"):
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself to indemnify, and to advance expenses on behalf of, its
directors 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 the Company as a
director and to take on additional service for or on its behalf 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 BY INDEMNITEE. 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).
2. INDEMNIFICATION--GENERAL. The Company shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this
Agreement and (b) (subject to the provisions of this Agreement) to the
fullest extent permitted by applicable law in effect on the date hereof and
as amended from time to time. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the rights
set forth in the other Sections of this Agreement.
3. 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 3 if, by reason of Indemnitee's Corporate Status (as
hereinafter defined), Indemnitee is, or is threatened to be made, a party
to or a participant in any threatened, pending or completed Proceeding (as
hereinafter defined), other than a Proceeding by or in the right of the
Company. Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, penalties, fines 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,
penalties, fines and amounts paid in settlement) actually and reasonably
incurred by Indemnitee or on behalf of Indemnitee in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to any
criminal Proceeding, had no reasonable cause to believe Indemnitee's
conduct was unlawful.
4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be entitled
to the rights of indemnification provided in this Section 4 if, by reason
of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be
made, a party to or a participant in any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section, Indemnitee shall be indemnified
against all Expenses (including all interest, assessments and other charges
paid or payable in connection with or in respect of
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such Expenses) actually and reasonably incurred by Indemnitee or on behalf
of Indemnitee in connection with such Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, that
indemnification against such Expenses 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 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 that such
indemnification may be made.
5. PARTIAL INDEMNIFICATION. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of Indemnitee's
Corporate Status, a party to (or a participant in) and is successful, on
the merits or otherwise, in defense of any Proceeding, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on behalf of Indemnitee in connection therewith. If
Indemnitee is not wholly successful in defense of 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 against all Expenses actually and reasonably incurred by
Indemnitee or on behalf of Indemnitee in connection with each successfully
resolved claim, issue or matter. 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. If Indemnitee is
entitled under any provision of this agreement to indemnification by the
Company for some or a portion of the Expenses, judgments, penalties, fines
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, penalties, fines and amounts paid in settlement)
actually and reasonably incurred by Indemnitee or on behalf of Indemnitee
in connection with such Proceeding or any claim, issue or matter therein,
but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion to which Indemnitee is
entitled.
6. INDEMNIFICATION FOR ADDITIONAL EXPENSES.
a. The Company shall indemnify Indemnitee against any and all Expenses
and, if requested by Indemnitee, shall (within seven (7) business days
of such request) advance such Expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or advance payment of Expenses by
the Company under this Agreement or any other agreement or by-law of
the Company now or hereafter in effect; or (ii) recovery under any
directors' and officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
b. 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 to which Indemnitee is not a party,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on behalf of Indemnitee in
connection therewith.
7. ADVANCEMENT OF EXPENSES. The Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding
within seven (7) days after the receipt
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by the Company of a statement or statements from Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include
or be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Notwithstanding the foregoing, the obligation of the Company to
advance Expenses pursuant to this Section 7 shall be subject to the
condition that, if, when and to the extent that the Company determines that
Indemnitee would not be permitted to be indemnified under applicable law,
the Company shall be entitled to be reimbursed, within thirty (30) days of
such determination, by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; PROVIDED, HOWEVER,
that if Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination
made by the Company that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any advance of Expenses until
a final judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed).
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
a. 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 Secretary of the Company shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
b. Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 8(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall
be made in the specific case: (i) if a Change in Control (as
hereinafter defined) shall have occurred, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board of Directors, a
copy of which shall be delivered to Indemnitee; or (ii) if a Change of
Control shall not have occurred, (A) by a majority vote of the
Disinterested Directors (as hereinafter defined), even though less
than a quorum of the Board, or (B) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee or (C) if so directed by the Board,
by the stockholders of the Company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall
be made within seven (7) days after such determination. The Company
and Indemnitee shall each 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
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of the determination as to Indemnitee's entitlement to
indemnification), and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
c. In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8(b) hereof, the
Independent Counsel shall be selected as provided in this Section
8(c). If a Change of Control shall not have occurred, the Independent
Counsel shall be selected by the Board of Directors, and the Company
shall give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change of Control shall
have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may,
within 10 days after such written notice of selection shall have been
given, 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 17 of this Agreement, and the
objection shall set forth with particularity the factual basis of
such assertion. 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 has determined that such objection is without merit. If, within
20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 8(a) hereof, no Independent
Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Court of Chancery of the State
of Delaware 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 Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel
under Section 8(b) hereof. 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 Section 8(b)
hereof, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 8(c), regardless of the
manner in which such Independent Counsel was selected or appointed,
and if such Independent Counsel was selected or appointed by
Indemnitee or the Court, shall provide such Independent Counsel with
such retainer as may requested by such counsel. Upon the due
commencement of any judicial proceeding or arbitration pursuant to
Section 10(a)(iii) 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. The Company shall not be required to obtain the consent of Indemnitee
to the settlement of any Proceeding which the Company has undertaken
to defend if the Company assumes full and sole responsibility for such
settlement and the settlement grants Indemnitee a complete and
unqualified release in respect of the potential liability. The Company
shall not be liable for any amount paid by Indemnitee in settlement of
any Proceeding that is not defended by the Company, unless the Company
has consented to such settlement, which consent shall not be
unreasonably withheld.
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9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
a. In making a determination with respect to entitlement to
indemnification or the advancement of expenses hereunder, the person
or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification or advancement of expenses
under this Agreement if Indemnitee has submitted a request for
indemnification or the advancement of expenses in accordance with
Section 8(a) 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 its board
of directors or independent legal 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 its board of directors or
independent legal 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 8
of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty (60)
days after receipt by the Company of the request 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 prohibition of such indemnification
under applicable law; PROVIDED, HOWEVER, that such 60-day period may
be extended for a reasonable time, not to exceed an additional thirty
(30) 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; and provided, further, that the
foregoing provisions of this Section 9(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 8(b) of this Agreement and if (A)
within fifteen (15) days after receipt by the Company of the request
for such determination the Board of Directors has resolved to submit
such determination to the stockholders for their consideration at an
annual meeting thereof to be held within seventy-five (75) days after
such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such meeting is
held for such purpose within sixty (60) days after having been so
called and such determination is made thereat, or (ii) if the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) of this Agreement.
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
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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. 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
Company or relevant enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Company or
relevant enterprise in the course of their duties, or on the advice of
legal counsel for the Company or relevant enterprise or on information
or records given in reports made to the Company or relevant enterprise
by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company or relevant
enterprise. The provisions of this Section 9(d) shall not be deemed to
be exclusive or to limit in any way the other circumstances in which
Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
e. ACTIONS OF OTHERS. The knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of the Company or relevant
enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
10. REMEDIES OF INDEMNITEE.
a. In the event that (i) a determination is made pursuant to Section 8 of
this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 7 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 8(b) of this Agreement within 90 days after receipt by the
Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5 or 6 of this
Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification 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 Court of Chancery of the State of
Delaware, or any other court of competent jurisdiction, of his
entitlement to such indemnification 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.
b. In the event that a determination shall have been made pursuant to
Section 8(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 10 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. If a Change of
Control shall have occurred, in any judicial proceeding or arbitration
commenced pursuant to this Section 10, the Company shall have the
burden of proving that Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be.
c. If a determination shall have been made pursuant to Section 8(b) 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
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Section 10, 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. In the event that Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication of or an award in arbitration to enforce his
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 Section 17 of this
Agreement) actually and reasonably incurred by him in such judicial
adjudication or arbitration, but only if he prevails therein. If it
shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication
or arbitration shall be appropriately prorated. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company
of a written request therefor) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any action brought
by Indemnitee for indemnification or advance of Expenses from the
Company under this Agreement or under any directors' or officers'
liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of Expenses or insurance recovery, as the
case may be.
e. The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 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.
11. 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 Certificate of Incorporation, the By-Laws, 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 Indemnitee's Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in the General
Corporation Law of the State of Delaware, whether by statute or
judicial decision, permits greater indemnification or advancement of
Expenses than would be afforded currently under the Company's By-Laws
and 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
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otherwise, shall not prevent the concurrent assertion or employment of
any other right or remedy.
b. To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
employees or agents of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or 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 director, officer, employee or agent under such
policy or policies.
c. 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 or
enforce such rights.
d. 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.
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, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise.
12. DURATION OF AGREEMENT.
a. This Agreement shall continue until and terminate upon the later of:
(i) 10 years after the date that Indemnitee shall have ceased to serve
as a director of the Company (or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which Indemnitee served at the request of the Company); or
(ii) the final termination of any Proceeding then pending 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 10 of this Agreement relating thereto.
b. This Agreement shall not be deemed an employment contract between the
Company (or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee may be discharged from
service as a director at any time for any reason, with or without
cause, except as may be otherwise provided, by the Company's
Certificate of Incorporation, By-laws, and the General Corporation Law
of the State of Delaware. The foregoing notwithstanding, this
Agreement shall continue in force as provided above after Indemnitee
has ceased to serve as a director of the Company.
c. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.
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13. 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
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; (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 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 thereby.
14. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES. Except as
provided in Section 6(a) of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding brought by Indemnitee (other than a
Proceeding by Indemnitee to enforce his rights under this Agreement), or
any claim therein, unless the bringing of such Proceeding or making of such
claim shall have been approved by the Board of Directors.
15. 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.
16. HEADINGS. 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.
17. DEFINITIONS. For purposes of this Agreement:
a. "Change in Control" means:
i. The acquisition by any person, corporation, partnership, limited
liability company or other entity (a "Person", which term shall
include a group within the meaning of section 13(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")) of ultimate
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly of
30% or more of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or
(ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any such acquisition directly from the
Company, except for acquisition of securities upon conversion of
other securities of the Company (ii) any such acquisition by the
Company, (iii) any such acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any such
acquisition by any corporation pursuant to a transaction which
complies with clauses (1), (2) and (3) of subsection (iii) of
this Section 17(a); or
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ii. Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election, by the Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
iii. Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of
the Company in one or a series of transactions (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, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, immediately following
such Business Combination more than 50% of, respectively, the
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of
the corporation 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
Outstanding Company Common Stock and outstanding Company Voting
Securities, as the case may be, (2) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) ultimately
beneficially owns, directly or indirectly, 30% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities
of such corporation except to the extent that such ownership
existed prior to the Business Combination and (3) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for
such Business Combination; or
iv. approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
b. "Corporate Status" describes the status of a person who is or was a
director, officer, employee, fiduciary or agent 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 request of the Company.
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c. "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.
d. "Effective Date" means ________________.
e. "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, or otherwise
participating in, a Proceeding.
f. "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 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. The Company agrees to pay the reasonable
fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
g. "Proceeding" includes 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 by or in the right
of the Corporation or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is, may be
or will be involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director of the Company, by reason of any
action taken by him or of any inaction on his part while acting as
director 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, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise; in each case whether or not he is acting or serving
in any such capacity at the time any liability or expense is incurred
for which indemnification or advancement of expenses can be provided
under this Agreement; except one (i) initiated by an Indemnitee
pursuant to Section 10 of this Agreement to enforce his right under
this Agreement or (ii) pending on or before the Effective Date.
18. ENFORCEMENT.
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 of the Company, and
the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director of the Company.
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b. 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.
19. MODIFICATION AND WAIVER. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of 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 hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
20. NOTICE BY INDEMNITEE. 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 which may be subject to indemnification or 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 Indemnitee
under this Agreement or otherwise.
21. NOTICES. All notices, requests, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or
other communication shall have been direct, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the
date on which it is so mailed:
a. If to Indemnitee to:
b. If to the Company to:
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
22. CONTRIBUTION. To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid
in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s)
giving cause to such Proceeding; and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
23. GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE
OF PROCESS. 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
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laws rules. Except with respect to any arbitration commenced by Indemnitee
pursuant to Section 10(a) of this Agreement, the Company and Indemnitee
hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be
brought only in the Chancery Court of the State of Delaware (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, (ii) 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, (iii)
appoint, to the extent such party is not a resident of the State of
Delaware, irrevocably _______________ as its agent in the State of Delaware
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, (iv) waive
any objection to the laying of venue of any such action or proceeding in
the Delaware Court, and (v) 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 otherwise inconvenient forum.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
COMBINATORX, INCORPORATED
By:____________________________
Name:
Title:
INDEMNITEE:
-------------------------------
Name:
Title:
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