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EXHIBIT 10.1
TRUBION PHARMACEUTICALS, INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("AGREEMENT") is made as of this 13th day
of
July, by and between Trubion Pharmaceuticals, Inc., a Delaware
corporation (the
"COMPANY"), and _____________________ ("INDEMNITEE").
WHEREAS, the Company and Indemnitee recognize the significant cost
of
directors' and officers' liability insurance and the general
reductions in the
coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial
increase in corporate litigation in general, subjecting officers
and directors
to expensive litigation risks at the same time as the coverage of
liability
insurance has been severely limited; and
WHEREAS, the Company desires to attract and retain the services of
highly
qualified individuals, such as Indemnitee, to serve as officers and
directors of
the Company and to indemnify its officers and directors so as to
provide them
with the maximum protection permitted by law.
NOW,
THEREFORE, in consideration for Indemnitee's services as an officer
or
director of the Company, the Company and Indemnitee hereby agree as
follows:
1.
INDEMNIFICATION; CONTRIBUTION. The Company shall indemnify and
hold
harmless Indemnitee to the fullest extent permitted by applicable
law. In
furtherance of the foregoing, and without limiting the generality
thereof:
(a) Third Party Proceedings. The Company shall indemnify and
hold
harmless Indemnitee if Indemnitee is or was a party or is
threatened to be made
a party to any threatened, pending or completed action, suit,
proceeding or any
alternative dispute resolution mechanism, whether civil,
criminal,
administrative or investigative (other than an action by or in the
right of the
Company) by reason of the fact that Indemnitee is or was a
director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason
of the fact that Indemnitee is or was serving at the request of the
Company as a
director, officer, employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys'
fees), judgments, fines and amounts paid in settlement (if such
settlement is
approved in advance by the Company, which approval shall not be
unreasonably
withheld) actually and reasonably incurred by Indemnitee in
connection with such
action, suit or proceeding if Indemnitee acted in good faith and in
a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of
the Company, and, with respect to any criminal action or
proceeding, had no
reasonable cause to believe Indemnitee's conduct was unlawful. The
termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which
Indemnitee reasonably believed to be in or not opposed to the best
interests of
the Company, and, with respect to any criminal action or
proceeding, had
reasonable cause to believe that Indemnitee's conduct was
unlawful.
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(b) Proceedings By or in the Right of the Company. The Company
shall
indemnify and hold harmless Indemnitee if Indemnitee was or is a
party or is
threatened to be made a party to any threatened, pending or
completed action or
suit by or in the right of the Company or any subsidiary of the
Company to
procure a judgment in its favor by reason of the fact that
Indemnitee is or was
a director, officer, employee or agent of the Company, or any
subsidiary of the
Company, or by reason of the fact that Indemnitee is or was serving
at the
request of the Company as a director, officer, employee or agent of
another
corporation, partnership, joint venture, trust or other enterprise,
against
expenses (including attorneys' fees) and, to the fullest extent
permitted by
law, amounts paid in settlement actually and reasonably incurred by
Indemnitee
in connection with the defense or settlement of such action or suit
if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to
be in or not opposed to the best interests of the Company, except
that no
indemnification shall be made in respect of any claim, issue or
matter as to
which Indemnitee shall have been adjudged 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 action or suit 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
indemnity for such
expenses which the Court of Chancery of the State of Delaware or
such other
court shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
has
been successful on the merits or otherwise in defense of any
action, suit or
proceeding referred to in Subsections (a) and (b) of this Section
1, or in
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified
and held harmless against expenses (including attorneys' fees)
actually and
reasonably incurred by Indemnitee in connection therewith.
(d) Contribution. Whether or not the indemnification provided in
this
Section 1 is available, in respect of any threatened, pending or
completed
action, suit or proceeding in which the Company is jointly liable
with
Indemnitee (or would be if joined in such action, suit or
proceeding), the
Company shall pay, in the first instance, the entire amount of any
judgment or
settlement of such action, suit or proceeding without requiring
Indemnitee to
contribute to such payment and the Company hereby waives and
relinquishes any
right of contribution it may have against Indemnitee. The Company
shall not
enter into any settlement of any action, suit or proceeding in
which the Company
is jointly liable with Indemnitee (or would be if joined in such
action, suit or
proceeding) unless such settlement provides for a full and final
release of all
claims asserted against Indemnitee.
2.
EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance all
expenses
incurred by Indemnitee in connection with the investigation,
defense, settlement
or appeal of any civil or criminal action, suit or proceeding
referenced in
Section 1(a) or (b) hereof . Indemnitee hereby undertakes to repay
such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized
hereby. The advances to be made hereunder shall be paid by the
Company to
Indemnitee within thirty (30) days following delivery of a written
request
therefor by Indemnitee to the Company.
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(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition
precedent to his right to be indemnified under this Agreement, give
the Company
notice in writing as soon as practicable of any claim made against
Indemnitee
for which indemnification will or could be sought under this
Agreement, provided
that no delay in providing such notice shall lessen Indemnitee's
entitlement to
indemnification hereunder except to the extent that such delay
actually and
materially prejudices the Company's ability to defend such claim.
Notice to the
Company shall be directed to the President of the Company at the
address shown
on the signature page of this Agreement (or such other address as
the Company
shall designate in writing to Indemnitee). Notice shall be deemed
received three
business days after the date postmarked if sent by domestic
certified or
registered mail, properly addressed, five business days if sent by
airmail to a
country outside of North America; otherwise notice shall be deemed
received when
such notice shall actually be received by the Company. In addition,
Indemnitee
shall give the Company such information and cooperation as it may
reasonably
require and as shall be within Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for in
Section 1 and this Section 2 shall be made no later than thirty
(30) days after
receipt of the written request of Indemnitee. If a claim under this
Agreement,
under any statute, or under any provision of the Company's
Certificate of
Incorporation or Bylaws providing for indemnification, is not paid
in full by
the Company within thirty (30) days after a written request for
payment thereof
has first been received by the Company, Indemnitee may, but need
not, at any
time thereafter bring an action against the Company to recover the
unpaid amount
of the claim and, subject to Section 12 of this Agreement,
Indemnitee shall also
be entitled to be paid for the expenses (including attorneys' fees)
of bringing
such action. It shall be a defense to any such action (other than
an action
brought to enforce a claim for expenses incurred in connection with
any action,
suit or proceeding in advance of its final disposition) that
Indemnitee has not
met the standards of conduct which make it permissible under
applicable law for
the Company to indemnify Indemnitee for the amount claimed.
However, Indemnitee
shall be entitled to receive interim payments of expenses pursuant
to Subsection
2(a) unless and until such defense may be finally adjudicated by
court order or
judgment from which no further right of appeal exists. It is the
parties'
intention that if the Company contests Indemnitee's right to
indemnification,
the question of Indemnitee's right to indemnification shall be for
the court to
decide, and neither the failure of the Company (including its Board
of
Directors, any committee or subgroup of the Board of Directors,
independent
legal counsel, or its stockholders) to have made a determination
that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee
has met the applicable standard of conduct required by applicable
law, nor an
actual determination by the Company (including it Board of
Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or
its stockholders) that Indemnitee has not met such applicable
standard of
conduct, shall create a presumption that Indemnitee has or has not
met the
applicable standard of conduct. The burden of establishing that
Indemnitee is
not entitled to indemnification pursuant to applicable law and this
Agreement
shall be on the Company.
(d) Notice to Insurers. If, at the time of the receipt of a notice
of
a claim pursuant to Section 2(b) hereof, the Company has director
and officer
liability insurance in effect, the Company shall give prompt notice
of the
commencement of such proceeding to the insurers in accordance with
the
proce
