Exhibit 10.17
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is made and entered into as of
between Targanta Therapeutics Corporation, a Delaware corporation
(the “ Company ”), and
(“ Indemnitee ”).
WHEREAS, highly competent persons
have become more reluctant to serve corporations as directors and
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, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, it is the express policy of
the Company to indemnify its directors and officers so as to
provide them with the maximum possible protection permitted by
law;
WHEREAS, Indemnitee does not regard
the protection that may be available under the Company’s
insurance or certificate of incorporation as adequate in the
present circumstances, and is not willing to serve as or remain as
a director and an officer without adequate protection;
and
WHEREAS, the Company desires
Indemnitee to serve as a director and an officer of the
Company;
NOW, THEREFORE, in consideration of
Indemnitee’s agreement to serve as a director and an officer
after the date hereof, the parties hereto agree as
follows:
1. Indemnity of Indemnitee .
The Company hereby agrees to hold harmless and indemnify Indemnitee
to the fullest extent permitted by law, as such may be amended from
time to time. In furtherance of the foregoing indemnification, and
without limiting the generality thereof:
(a) Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section l(a) if, by reason of his Corporate Status (as
hereinafter defined), the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding (as hereinafter
defined) other than a Proceeding by or in the right of the Company.
Pursuant to this Section 1(a) , Indemnitee shall be
indemnified against all Expenses (as hereinafter defined),
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him, or on his behalf, in connection
with such Proceeding or any claim, issue or matter therein, if the
Indemnitee acted in good faith and in a manner the Indemnitee
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 the Indemnitee’s conduct was
unlawful.
(b) Proceedings by or in the
Right of the Company . Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1(b)
if, by reason of his Corporate Status, the Indemnitee is, or is
threatened to be made, a party to or participant in any
Proceeding brought by or in the
right of the Company. Pursuant to this Section 1(b) ,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s
behalf, in connection with such Proceeding if the Indemnitee acted
in good faith and in a manner the Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company;
provided , however , if applicable law so provides,
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 and to the extent that the Court of Chancery of the State of
Delaware shall determine that such indemnification may be
made.
(c) Indemnification for Expenses
of a Party Who is Wholly or Partly Successful . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall
be indemnified to the maximum extent permitted by law, as such may
be amended from time to time, 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 each successfully resolved claim, issue or
matter. For purposes of this Section 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.
2. 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 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.
3. Advancement of Expenses .
Notwithstanding any other provision of this Agreement, the Company
shall advance all Expenses incurred by or on behalf of Indemnitee
in connection with any Proceeding by reason of Indemnitee’s
Corporate Status within thirty (30) days after the receipt by
the Company of a statement or statements from 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 incurred by
Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses. Any advances
and undertakings to repay pursuant to this Section 3
shall be unsecured and interest free.
4. Procedures and Presumptions
for Determination of Entitlement to Indemnification . It is the
intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the
Delaware General Corporation Law and public policy of the State of
Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification
under this Agreement:
(a) To obtain indemnification under
this Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine
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whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the
Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon written request by
Indemnitee for indemnification pursuant to the first sentence of
Section 4(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following
four methods, which choice of method shall be at the election of
the Company’s Board of Directors: (1) by a majority vote
of the Disinterested Directors (as defined in
Section 11 hereof), even though less than a quorum,
(2) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than
a quorum, (3) if there are no Disinterested Directors or if
the Disinterested Directors so direct, by Independent Counsel (as
defined in Section 11 hereof) in a written opinion to
the Board of Directors, a copy of which shall be delivered to the
Indemnitee, or (4) if so directed by the Board of Directors,
by the stockholders of the Company.
(c) If the determination of
entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 4(b) hereof, the Independent
Counsel shall be selected by the Company’s Board of
Directors. Indemnitee may, within 10 days after such written notice
of selection shall have been given, deliver to the Company, as the
case may be, a written objection to such selection; provided
, however , that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “ Independent Counsel ” as
defined in Section 11 of this Agreement, and the
objection shall set forth with particularity the factual basis of
such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection
is made and substantiated, the Independent Counsel selected may not
serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without
merit. If, within 20 days after submission by Indemnitee of a
written request for indemnification pursuant to
Section 4(a) hereof, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee
may petition the Court of Chancery of the State of Delaware or
other court of competent jurisdiction for resolution of any
objection that shall have been made by the Indemnitee to the
Company’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 4(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section 4(b) hereof, and the Company shall pay all
reasonable fees and expenses incident to the procedures of this
Section 4(c) , regardless of the manner in which such
Independent Counsel was selected or appointed.
(d) In making a determination with
respect to entitlement to indemnification hereunder, the person or
persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement.
Anyone seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion by clear and convincing
evidence. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by its directors
or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable
standard of conduct.
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(e) Indemnitee shall be deemed to
have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise (including
financial statements, or on information supplied to Indemnitee by
the officers of the Enterprise (as hereinafter defined) in the
course of their duties), the advice of legal counsel for the
Enterprise, or information or records given or reports made to the
Enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the
Enterprise. In addition, the knowledge and/or actions, or failure
to act, of any director, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
Whether or not the foregoing provisions of this
Section 4(e) are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(f) If the person, persons or entity
empowered or selected under Section 4 to determine
whether Indemnitee is entitled to indemnification shall not have
made a determination within 60 days after receipt by the Company of
the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided , however , that such
60-day period may be extended for a reasonable time, not to exceed
an additional 30 days, if the person, persons or entity making such
determination with respect to entitlement to indemnification in
good faith requires such additional time to obtain or evaluate
documentation and/or information relating thereto; and provided,
further, that the foregoing provisions of this
Section 4(g) shall not apply if the determination of
entitlement to indemnification is to be made by the stockholders
pursuant to Section 4(b) of this Agreement and if
(A) within 15 days after receipt by the Company of the request
for such determination, the Board of Directors or the Disinterested
Directors, if appropriate, resolve to submit such determination to
the stockholders for their consideration at an annual meeting
thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of
stockholders is called within 15 days after such receipt for the
purpose of making such determination, such meeting is held for such
purpose within 60 days after having been so called and such
determination is made thereat.
(g) Indemnitee shall cooperate with
the person, persons or entity making such determination with
respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon
reasonable advance request any documentation or information that is
not privileged or otherwise protected from disclosure and that is
reasonably available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board of
Directors or stockholder of the Company shall act reasonably and in
good faith in making a determination regarding the
Indemnitee’s entitlement to indemnification under this
Agreement. Any costs or expenses (including attorneys’ fees
and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be
borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company
hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
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(h) The Company acknowledges that a
settlement or other disposition short of final judgment may be
successful if it permits a party to avoid
