Exhibit 10.1
FORM OF INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“ Agreement ”) is made as of May 20, 2009
by and between Cougar Biotechnology, Inc., a Delaware corporation
(the “ Company ”), and
(“ Indemnitee ”). This Agreement supersedes and
replaces any and all previous Agreements between the Company and
Indemnitee covering the subject matter of this
Agreement.
RECITALS
WHEREAS, highly competent persons
have become more reluctant to serve publicly-held corporations as
directors, officers or in other capacities unless they are provided
with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation;
WHEREAS, the Board of Directors of
the Company (the “ Board ”) has determined that,
in order to attract and retain qualified individuals, the Company
will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of
such insurance has been a customary and widespread practice among
United States-based corporations and other business enterprises,
the Company believes that, given current market conditions and
trends, such insurance may be available to it in the future only at
higher premiums and with more exclusions. At the same time,
directors, officers, and other persons in service to corporations
or business enterprises are being increasingly subjected to
expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only
against the Company or business enterprise itself. The Certificate
of Incorporation of the Company requires indemnification of the
officers and directors of the Company. Indemnitee may also be
entitled to indemnification pursuant to the General Corporation Law
of the State of Delaware (the “ DGCL ”). The
DGCL expressly provides that the indemnification provisions set
forth therein are not exclusive, and thereby contemplates that
contracts may be entered into between the Company and members of
the Board, officers and other persons with respect to
indemnification;
WHEREAS, the uncertainties relating
to such insurance and to indemnification have increased the
difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined
that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company and its
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons 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;
WHEREAS, this Agreement is a
supplement to and in furtherance of the Company’s Certificate
of Incorporation and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee does not regard
the protection available under the Company’s Certificate of
Incorporation and insurance as adequate in the present
circumstances, and may not be willing to serve or continue to serve
as an officer, director or employee without adequate protection,
and the Company desires Indemnitee to serve in such capacity.
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition
that he be so indemnified; and
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the
Company. Indemnitee agrees to serve or continue to serve as a
director, officer, or employee of the Company, or, at the request
of the Company, as a director or fiduciary of an employee benefit
plan or other Enterprise. 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), in which
event the Company shall have no obligation under this Agreement to
continue Indemnitee in such position. This Agreement shall not be
deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee’s employment with
the Company (or any of its subsidiaries or any Enterprise), if any,
is at will, and the Indemnitee may be discharged at any time for
any reason, with or without cause, except as may be otherwise
provided in any written employment contract between Indemnitee and
the Company (or any of its subsidiaries or any Enterprise), other
applicable formal severance policies duly adopted by the Board, or,
with respect to service as a director, officer or employee of the
Company, by the Company’s Certificate of Incorporation, its
Bylaws, each as may be amended from time to time, and the DGCL. The
foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve as an officer, director or
employee of the Company.
Section 2. Definitions. As
used in this Agreement:
(a) References to
“agent” shall mean any person who is or was a director,
officer or employee of the Company or a Subsidiary of the Company
or other person authorized by the Company to act for the Company,
to include such person serving in such capacity as a director,
officer, employee, fiduciary or other official of another
corporation, partnership, limited liability company, joint venture,
trust or other Enterprise at the request of, for the convenience
of, or to represent the interests of the Company or a Subsidiary of
the Company.
(b) A “Change in
Control” shall be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the following
events:
i. Acquisition of Stock by Third
Party. Any Person (as defined below) is or becomes the Beneficial
Owner (as defined below), directly or indirectly, of securities of
the Company representing fifteen percent (15%) or more of the
combined voting power of the Company’s then outstanding
securities;
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ii. Change in Board of Directors.
During any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement), individuals
who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in Sections 2(b)(i) , 2(b)(iii) or
2(b)(iv) ) whose election by the Board 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
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the
members of the Board;
iii. Corporate Transactions. The
effective date of a merger or consolidation of the Company with any
other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 51% of
the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of
directors or other governing body of such surviving
entity;
iv. Liquidation. The approval by the
stockholders of the Company of a complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets;
and
v. Other Events. There occurs any
other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form)
promulgated under the Exchange Act (as defined below), whether or
not the Company is then subject to such reporting
requirement.
For purposes of this
Section 2(b) , the following terms shall have the
following meanings:
(A) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
(B) “Person” shall have
the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided , however , that Person shall
exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the
Company.
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(C) “Beneficial Owner”
shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided , however , that Beneficial
Owner shall exclude any Person otherwise becoming a Beneficial
Owner by reason of the stockholders of the Company approving a
merger of the Company with another entity.
(c) “Corporate Status”
describes the status of a person who is or was a director, officer,
employee or agent of the Company or of any other corporation,
limited liability company, partnership or joint venture, trust,
employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
(d) “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.
(e) “Enterprise” shall
mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan
or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(f) “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, any federal, state, local
or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, ERISA excise
taxes and penalties, 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. Expenses also shall include (i) Expenses incurred
in connection with any appeal resulting from any Proceeding,
including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal
bond or its equivalent, and (ii) for purposes of
Section 13(d) only, Expenses incurred by Indemnitee in
connection with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement, by litigation or
otherwise. The parties agree that for the purposes of any
advancement of Expenses for which Indemnitee has made written
demand to the Company in accordance with this Agreement, all
Expenses included in such demand that are certified by affidavit of
Indemnitee’s counsel as being reasonable shall be presumed
conclusively to be reasonable. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
(g) “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 (other than with respect to matters concerning the
Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), 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
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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
and expenses 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.
(h) The term
“Proceeding” shall include 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
in the right of the Company or otherwise and whether of a civil,
criminal, administrative legislative, or investigative (formal or
informal) nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, potential party,
non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director, officer or employee of the
Company, by reason of any action taken by him or of any action on
his part while acting as director, officer or employee 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, limited liability company, partnership, joint
venture, trust or other enterprise, in each case whether or not
serving in such capacity at the time any liability or expense is
incurred for which indemnification, reimbursement, or advancement
of expenses can be provided under this Agreement. If the Indemnitee
believes in good faith that a given situation may lead to or
culminate in the institution of a Proceeding, this shall be
considered a Proceeding under this paragraph.
(i) Reference to “other
enterprise” shall include employee benefit plans; references
to “fines” shall include any excise tax assessed with
respect to any employee benefit plan; 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 a person who acted in good faith
and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in manner “not opposed to the
best interests of the Company” as referred to in this
Agreement.
Section 3. Indemnity in
Third-Party Proceedings. The Company shall indemnify Indemnitee
in accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 3 , Indemnitee shall be indemnified to
the fullest extent permitted by applicable law against all
Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company and, in the case of a criminal proceeding had no
reasonable cause to believe that his conduct was
unlawful.
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Section 4. Indemnity in
Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of
this Section 4 if Indemnitee is, or is threatened to be
made, a party to or a participant in any Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 4 , Indemnitee shall be indemnified to
the fullest extent permitted by applicable law against all Expenses
actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudged by a court
to be liable to the Company, unless and only to the extent that the
Delaware Court of Chancery or any court in which the Proceeding was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to
indemnification.
Section 5. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the
fullest extent permitted by applicable law and to the extent that
Indemnitee is a party to (or a participant in) and is successful,
on the merits or otherwise, in any Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in 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 him or on his behalf in connection with or
related to each successfully resolved claim, issue or matter to the
fullest extent permitted by law. For purposes of this
Section 5 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.
Section 6. Indemnification For
Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is, by reason of his Corporate
Status, a witness or otherwise asked to participate in any
Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
Section 7. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
Section 8. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
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(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other
indemnity provision; or
(b) for (i) an accounting of
profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act (as defined in
Section 2(b) hereof) or similar provisions of state
statutory law or common law, or (ii) any reimbursement of the
Company by the Indemnitee of any bonus or other
incentive-ba
