Exhibit 10.1
FORM OF INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“Agreement”), dated as of
, is made by and between UNITED THERAPEUTICS CORPORATION, a
Delaware corporation (the “Company”), and
(the “Indemnitee”), an “agent” (as
hereinafter defined) of the Company.
RECITALS
A.
The Company recognizes that
competent and experienced persons are increasingly reluctant to
serve as directors or executive officers of corporations unless
they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation
costs and risks resulting from their service to such corporations,
and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and
executive officers;
B.
The Company and the Indemnitee
recognize that plaintiffs often seek damages in such large amounts
and the costs of litigation may be so enormous (whether or not the
case is meritorious), that the defense and/or settlement of such
litigation is often beyond the personal resources of directors and
executive officers;
C.
In order to induce and encourage
competent and experienced persons such as Indemnitee to serve and
continue to serve as directors and executive officers of the
Company and in any other capacity with respect to the Company, and
to otherwise promote the desirable end that such persons will
resist what they consider unjustified lawsuits and claims made
against them in connection with the good faith performance of their
duties, with the knowledge that certain expenses, judgments, fines
and penalties incurred by them in their defense of such litigation
are to be borne by the Company and they shall receive the maximum
protection against such risks and liabilities as may be afforded by
law, the Company has determined that the interests of the
Company and its stockholders would best be served by a combination
of liability insurance coverage and the indemnification by the
Company of the directors and executive officers of the
Company;
D.
Section 145 of the General
Corporation Law of Delaware (“Section 145”), under
which the Company is organized, empowers the Company to indemnify
and advance expenses to its directors, officers, employees and
agents by agreement and to indemnify and advance expenses to
persons who serve, at the request of the Company, as the directors,
officers, employees or agents of other corporations or enterprises,
and expressly provides that the indemnification and advancement
provided by Section 145 is not exclusive;
E.
The Company’s Certificate of
Incorporation and By-Laws require the Company to indemnify and
advance expenses to its directors and officers, permit the Company
to enter into agreements with any of its directors or officers
providing such rights of indemnification as the Company may deem
appropriate, and expressly provide that the indemnification and
advancement of expenses provided by the Certificate of
Incorporation and By-Laws is not exclusive;
F.
The Board of Directors has
determined that contractual indemnification as set forth herein is
not only reasonable and prudent but necessary to promote the best
interests of the Company and its stockholders;
G.
The Company desires and has
requested the Indemnitee to serve or continue to serve as a
director or executive officer of the Company free from undue
concern for claims for damages arising out of or related to such
services to the Company; and
H.
The Indemnitee is willing to serve,
or to continue to serve, the Company, only on the condition that he
or she is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth below, the parties
hereto, intending to be legally bound, hereby agree as
follows:
1.
Definitions and
References .
(a)
Agent . For purposes of this Agreement,
“agent” of the Company means any person who is or was a
director, officer, employee or other agent of the Company or a
subsidiary of the Company, or while a director, officer, employee
or other agent of the Company or a subsidiary of the Company is or
was serving at the request of, for the convenience of, or to
represent the interest of the Company or a subsidiary of the
Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust
or other enterprise.
(b)
Change in Control
. For purposes of this
Agreement, “change in control” means a change in
control of the Company occurring after the date of this Agreement
of a nature that would be required to be reported in response to
Item 5.01 of Current Report on Form 8-K (or in response to any
similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) whether or not the Company is then subject to such
reporting requirement; provided , however , that,
without limitation, a change in control shall be deemed to have
occurred if after the date of this Agreement: (i) any
“person” (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) becomes the
“beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power
of the Company’s then outstanding securities without the
prior approval of at least
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two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such
percentage, (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of
Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors
thereafter, or (iii) during any period of two consecutive
years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director
whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period) cease for any reason to constitute at least a
majority of the Board of Directors
(c)
Expenses . For purposes of this Agreement,
“expenses” includes all direct and indirect costs of
any type or nature whatsoever (including, without limitation, all
attorneys’ fees and related disbursements and other
out-of-pocket costs), actually and reasonably incurred by the
Indemnitee in connection with either the investigation, defense or
appeal of a proceeding or establishing or enforcing a right to
indemnification or advancement under this Agreement,
Section 145 or otherwise, and amounts paid in settlement by or
on behalf of the Indemnitee, but shall not include any final
judgments, fines or penalties actually levied against the
Indemnitee.
(d)
Independent Legal
Counsel . For
purposes of this Agreement, “independent legal counsel”
means a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to
represent: (i) the Company or the 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 legal 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 the Indemnitee in an action to determine the
Indemnitee’s right to indemnification under this
Agreement.
(e)
Proceeding
. For purposes of this
Agreement, “proceeding” means any threatened, pending
or completed action, suit or other proceeding, whether brought by
or in the right of the Company or otherwise, and whether of a
civil, criminal, administrative, investigative, legislative or
other nature.
(f)
Subsidiary
. For purposes of this
Agreement, “subsidiary” means any corporation of which
more than 50% of the outstanding voting securities are owned
directly or indirectly by the Company, by the Company and one or
more other subsidiaries or by one or more other
subsidiaries.
(g)
References
. For purposes of this
Agreement, “other enterprise” shall include employee
benefit plans; references to “fines” shall include any
excise tax assessed with respect to any employee benefit plans;
references to “serving at the request of the Company”
shall include any service as a director, officer, employee or agent
of the Company which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and any
person who acts in good faith and
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in a manner he or she reasonably believed to be
in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as
referred to in this Agreement.
2.
Agreement to Serve
. The Indemnitee agrees to
serve and/or continue to serve as an agent of the Company, at the
will of the Company (or under separate agreement, if such agreement
exists), so long as the Indemnitee is duly appointed or
elected and qualified in accordance with the applicable provisions
of the By-Laws of the Company or any subsidiary of the Company or
until such time as the Indemnitee is removed as permitted by law or
tenders a resignation in writing; provided , however
, that nothing contained in this Agreement is intended to create
any right to continued employment by the Indemnitee in any
capacity.
3.
Indemnity in Third Party
Proceedings . The
Company shall indemnify the Indemnitee if the Indemnitee was or is
a party to or is threatened to be made a party to any proceeding
(other than a proceeding by or in the right of the Company) by
reason of the fact that the Indemnitee is or was an agent of the
Company, including any proceeding based upon any act or inaction by
the Indemnitee in the Indemnitee’s capacity as an agent of
the Company, against any and all expenses, judgments, fines and
penalties actually and reasonably incurred by the Indemnitee in
connection with such proceeding, but only if the Indemnitee acted
in good faith and in a manner he or she 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 his or her conduct was unlawful. The termination of
any proceeding by judgment, order of court, settlement, conviction
or on plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not act in
good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Company, and with
respect to any criminal proceedings, that the Indemnitee had
reasonable cause to believe that his or her conduct was
unlawful.
4.
Indemnity in Derivative Actions;
Indemnification as Witness .
(a)
The Company shall indemnify the
Indemnitee if the Indemnitee was or is a party to or is threatened
to be made a party to any proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was an agent of the Company, including
any proceeding based upon any act or inaction by the Indemnitee in
the Indemnitee’s capacity as an agent of the Company, against
all expenses actually and reasonably incurred by the Indemnitee in
connection with such proceeding, but only if the Indemnitee acted
in good faith and in a manner he or she reasonably believed to be
in or
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not opposed to the best interests of the
Company, and except that no indemnification under this
Section 4 shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been found, in a
final, nonappealable judgment or other final, nonappealable
adjudication, to be liable to the Company, unless and only to
the extent that the Court of Chancery of the State of
Delaware or the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper.
(b)
Notwithstanding any other provisions
of this Agreement, to the extent the Indemnitee is, by reason of
the fact that he or she is or was an agent of the Corporation,
involved in any proceeding but neither is nor is threatened to be
made a party to such proceeding, including but not limited to
testifying as a witness or furnishing documents in response to a
subpoena or otherwise, the Indemnitee shall be indemnified against
any and all expenses actually and reasonably incurred by or for him
or her in connection therewith.
5.
Indemnification of Expenses of
Successful Party .
Notwithstanding any other provisions of this Agreement, to the
extent that the Indemnitee has been successful on the merits or
otherwise in defense of any proceeding or in defense of any claim,
issue or matter therein, the Company shall indemnify the Indemnitee
against all expenses actually and reasonably incurred in connection
with such proceeding.
6.
Partial
Indemnification .
If the Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some
