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Exhibit 10.6
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").
WITNESSETH THAT:
WHEREAS, Officer is an officer of the Company and/or one or more
of its subsidiaries 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 officers with respect to
indemnification of such 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 have previously entered into an
Indemnification Agreement, effective as of [insert date of original
agreement]; and
WHEREAS, in order to induce Officer to continue to serve as 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;
NOW, THEREFORE, in consideration of Officer’s continued
service as an officer, the parties hereto agree as follows:
1. Indemnity of Officer . Subject to Section 5
hereof, the Company hereby agrees to hold harmless and indemnify
Officer in respect of Officer’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:
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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 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 is, was or at any
time becomes, or is threatened to be made, a party, by reason of
the fact that Officer 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 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 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 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 for an accounting of profits made from the purchase or sale
by Officer 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 Officer’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 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 (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 Officer in such
proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and by Officer 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 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 fault of the Company on
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