INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (the “Agreement”) entered
into as of this ___ day of ___, 20 ___ by and between PharmaNet
Development Group, Inc., a Delaware corporation (the
“Company”), and ___ (the
“Indemnitee”):
WHEREAS, competent
and experienced persons are becoming increasingly reluctant to
serve publicly-held corporations as directors, officers, or in
other capacities unless they are provided with adequate protection
through liability insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to the corporation;
WHEREAS, the board
of directors of the Company (the “Board”) has
determined that the inability to attract and retain such persons is
detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS,
Section 145 of the Delaware General Corporation Law (the
“DGCL”) empowers the Company to indemnify its officers,
directors, employees and agents by agreement and to indemnify
persons who serve, at the request of the Company, as directors,
officers, employees or agents of other corporations or
enterprises;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify 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,
Indemnitee is willing to serve as a director of the Company on the
condition that he be so indemnified.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1.
Definitions . For purposes of this Agreement:
(a) “Act”
means the Securities Exchange Act of 1934.
(b) “Beneficial
Owner” means (as defined in Rule 13d-3 under the Act),
any Person who directly or indirectly, owns securities of the
Company representing 10% or more of the combined voting power of
the Company’s then outstanding securities.
(c) “Change
of Control” means a change in control of the Company
occurring after the Effective Date of a nature that would be
required to be reported in response to Item 5.01 on Form 8-K
(or in response to any similar item on any Securities and Exchange
Commission schedule or form) promulgated under the Act, whether or
not the Company is then subject to such reporting requirement;
provided , however , that, without limitation, such a
Change of Control shall be deemed to have occurred after the
Effective Date if a Person (as defined below) becomes the
Beneficial Owner without the prior approval of at least two-thirds
of the 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 in office immediately
prior to such transaction or event constitute less than a majority
of the Board thereafter; or (iii) during any period of two
consecutive years, individuals who, at the beginning of such
period, constituted the Board (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.
(d) “Corporate
Status” describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or
of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
(e) “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.
(f) “Effective
Date” means the date first above written.
(g) “Expenses”
shall include all reasonable attorney’s 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 and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in a
Proceeding.
(h) “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, 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 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.
(i) “Person”
means (as such term is used in Sections 13(d) and 14(d) of the Act)
an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity
(or any department, agency, or political subdivision
thereof).
(j) “Proceeding”
includes any actual or threatened action, suit, arbitration,
alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, whether or not initiated
prior to the Effective Date, except a proceeding initiated by an
Indemnitee pursuant to Section 11 of this Agreement to enforce
his rights under this Agreement.
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(k) “Standard”
shall mean the applicable standard of conduct set forth in Sections
145(a) and (b) of the DGCL.
2.
Agreement to Serve . Indemnitee agrees to serve as a
director of the Company. 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).
Similarly, the Company shall have no obligation under this
Agreement to continue Indemnitee in any position with the
Company.
3.
Indemnification — General . The Company shall
indemnify and advance Expenses to Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable
law may thereafter from time to time permit. However, no
indemnification shall be made by the Company (except as ordered by
a court) unless a determination has been made in the manner
provided for in Section 145(d) of the DGCL and Section 9(b) herein
that Indemnitee has met the applicable Standard. The rights of
Indemnitee provided under the preceding sentence shall include, but
shall not be limited to, the rights set forth in the other sections
of this Agreement.
4. Third
Party Actions . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of
his Corporate Status, he is, or is threatened to be made, a party
to any Proceeding, other than a Proceeding by or in the right of
the Company. Pursuant to this Section 4, Indemnitee shall be
indemnified against Expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such Proceeding or
any claim, issue or matter therein, if (i) he acted in good
faith, and in a manner he reasonably believed to be in or not
opposed to the Company’s best interests; and (ii) with
respect to any criminal Proceeding, had no reasonable cause to
believe his conduct was unlawful. Indemnitee shall not be entitled
to indemnification in connection with any Proceeding charging
improper personal benefit to the Indemnitee, whether or not
involving action in his official capacity, in which he was judged
liable on the basis that personal benefit was improperly received
by him.
5. Direct
and Derivative Actions . Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5, by
reason of his Corporate Status, if he is, or is threatened to be
made, a party to any Proceeding brought by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses actually
and reasonably incurred by him or on his behalf in connection with
such Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company. Notwithstanding the foregoing , no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
unless the Delaware Court of Chancery or the court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all of the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Expenses which the Delaware
Court of Chancery or such other court shall deem proper.
6.
Indemnification for Expenses of an Indemnitee .
Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of his Corporate Status,
a
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party to and is
successful, on the merits or otherwise, in any Proceeding, he shall
be indemnified against all Expenses actually and reasonably
incurred by him 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 each successfully resolved
claim, issue or matter. For purposes of this Section 6 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.
7.
Indemnification for Expenses of a Witness .
Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.
8.
Advancement of Expenses . The Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding within 20 working days after the
receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the
Expenses
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