Exhibit 10.8
AMENDED AND
RESTATED
INDEMNIFICATION
AGREEMENT
THIS AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT, effective as of [insert date of original
agreement], is between XOMA LTD., a Bermuda company (the
“Company”), and
(“Director”).
WITNESSETH THAT:
WHEREAS, Director is a director of
the Company and performs valuable services in such capacity for the
Company; and
WHEREAS, the shareholders of the
Company have adopted Bye-laws (the “Bye-laws”)
providing for the indemnification of the officers, directors and
employees of the Company to the maximum extent possible except as
prohibited by the Companies Act 1981 of Bermuda (the
“Act”); and
WHEREAS, such Bye-laws, by their
non-exclusive nature, permit contracts between the Company and its
directors with respect to indemnification of such directors;
and
WHEREAS, the Company has purchased
and presently maintains a policy or policies of liability insurance
for directors and officers (“D & O
Insurance”), covering certain liabilities which may be
incurred by its directors and officers in the performance of their
duties as directors and officers of the Company and its
subsidiaries; and
WHEREAS, there remains general
uncertainty as to the extent of protection afforded directors and
officers of the Company by such D & O Insurance and bye-law
indemnification provisions; and
WHEREAS, the Company and Director
have previously entered into an Indemnification Agreement,
effective as of [insert date of original agreement]; and
WHEREAS, in order to induce Director
to continue to serve as a director of the Company, the Company has
determined and agreed to enter into this amended and restated
agreement with Director;
NOW, THEREFORE, in consideration of
Director’s continued service as a director, the parties
hereto agree as follows:
1. Indemnity of Director .
Subject to Section 5 hereof, the Company hereby agrees to hold
harmless and indemnify Director in respect of Director’s
serving or having served as an officer, director, employee or agent
of the Company or one or more of its subsidiaries or at
the
request of the Company as an officer, director,
employee or agent of another company, corporation, partnership,
limited liability company, joint venture, trust or other
enterprise, to the fullest extent authorized or permitted by
applicable law in effect on the date hereof and as may be amended
from time to time, but not for fraudulent or dishonest acts or
omissions.
2. Additional Indemnity .
Subject to Section 5 hereof and to the exclusions set forth in
Section 3 hereof, the Company hereby further agrees to hold
harmless and indemnify Director:
(a) against any and all expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by Director in
connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the
Company), to which Director is, was or at any time becomes, or is
threatened to be made, a party, by reason of the fact that Director
is or was an officer, director, employee or agent of the Company or
one or more of its subsidiaries or at the request of the Company as
an officer, director employee or agent of another company,
corporation, partnership, limited liability company, joint venture,
trust or other enterprise; and
(b) otherwise to the fullest extent
as may be provided to Director by the Company under the
non-exclusivity provisions of Article VII, Section 8 of the
Bye-laws of the Company.
3. Limitations on Additional
Indemnity . No indemnity pursuant to Section 2 hereof
shall be paid by the Company:
(a) except to the extent the
aggregate of amounts to be indemnified thereunder exceeds the
amount for which Director is indemnified either pursuant to
Section 1 hereof or pursuant to any other indemnification
arrangement or any D & O Insurance purchased and maintained by
the Company;
(b) in respect of remuneration paid
to Director if it shall be determined by a final judgment or other
final adjudication that such remuneration was in violation of
law;
(c) on account of any suit in which
judgment is rendered against Director for an accounting of profits
made from the purchase or sale by Director of securities of the
Company pursuant to the provisions of Section 16(b) of the
U.S. Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory
law;
(d) on account of Director’s
conduct which is fraudulent or dishonest; or
(e) if a final decision by a court
having jurisdiction in the matter shall determine that such
indemnification is not lawful.
4. Contribution . If the
indemnification provided in Sections 1 and 2 is unavailable and may
not be paid to Director for any reason other than those set forth
in paragraphs (b), (c), (d), and (e) of Section 3, then
in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Director (or
would be if joined in such
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action, suit or proceeding), the Company shall
contribute to the amount of expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Director in such
proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and by Director on
the other from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Company
on the one hand and of Director on the other in connection with the
events w
