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Exhibit 10.7
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
("Officer/Director").
WITNESSETH THAT:
WHEREAS, Officer/Director is a director of the Company and an
officer of the Company and/or one or more of its subsidiaries and
performs valuable services in such capacities 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 and officers with
respect to indemnification of such directors and officers; 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 and its
subsidiaries by such D & O Insurance and bye-law
indemnification provisions; and
WHEREAS, the Company and Officer/Director have previously
entered into an Indemnification Agreement, effective as of [insert
date of original agreement]; and
WHEREAS, in order to induce Officer/Director to continue to
serve as a director of the Company and an officer of the Company
and/or one or more of its subsidiaries, the Company has determined
and agreed to enter into this amended and restated agreement with
Officer/Director;
NOW, THEREFORE, in consideration of Officer/Director’s
continued service as a director and an officer, the parties hereto
agree as follows:
1. Indemnity of Officer/Director . Subject
to Section 5 hereof, the Company hereby agrees to hold
harmless and indemnify Officer/Director in respect of
Officer/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
Officer/Director:
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(a) against any and all expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by Officer/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
Officer/Director is, was or at any time becomes, or is threatened
to be made, a party, by reason of the fact that Officer/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
Officer/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:
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(a) except to the extent the aggregate of amounts to be
indemnified thereunder exceeds the amount for which
Officer/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 Officer/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
Officer/Director for an accounting of profits made from the
purchase or sale by Officer/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;
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(d) on account of Officer/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
Officer/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
Officer/Director (or would be if joined in such 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 Officer/Director in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on
the one hand and by Officer/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
Officer/Director on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts,
as well as any other relevant equitable considerations. The
relative
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