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Exhibit 10.7
INDEMNIFICATION
AGREEMENT
AGREEMENT, made this
day
of , 20 ,
between Corcept Therapeutics Incorporated, a Delaware corporation
(the “Company”), and
(the “Indemnitee”).
W I T
N E S S E T H
:
WHEREAS, the Indemnitee is a
director and/or officer of the Company.
WHEREAS, highly competent
persons have become more reluctant to serve publicly-held
corporations as directors 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, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner and Indemnitee’s
reliance on the provisions of the Company’s Certificate of
Incorporation (“Certificate of Incorporation”) and the
Company’s Bylaws (the “Bylaws”) requiring
indemnification of the Indemnitee to the fullest extent permitted
by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such Certificate of
Incorporation and Bylaws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation
of such Certificate of Incorporation or Bylaws or any change in the
composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement.
WHEREAS, the Certificate of
Incorporation, the Bylaws and the General Corporation Law of the
State of Delaware (“DGCL”) expressly provide that the
indemnification provisions set forth therein are not exclusive and
thereby contemplate that contracts may be entered into between the
Company and members of the board of directors, officers and other
persons with respect to indemnification.
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 Certificate of
Incorporation and Bylaws and any resolutions adopted pursuant
thereto and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee
thereunder.
NOW, THEREFORE, in
consideration of the premises and of Indemnitee agreeing to serve
or continuing to serve the Company directly or, at its request,
with another enterprise, and intending to be legally bound hereby,
the parties hereto agree as follows:
Section 1 .
Basis Indemnification Agreement . (a) In the event
Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Claim (as defined in Section 9(b)
herein) by reason of (or arising in part out of) an Indemnifiable
Event (as defined in Section 9(d) herein), the Company shall
indemnify Indemnitee to the fullest extent permitted by law as soon
as practicable but in any event no later than 30 days after written
demand is presented to the Company, against any and all Expenses
(as defined in Section 9(c) herein), judgments, fines,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection
therewith) of such Claim actually and reasonably incurred by or on
behalf of Indemnitee in connection with such Claim and 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.
If requested by Indemnitee in writing, the Company shall advance
(within ten business days of such written request) any and all
Expenses to Indemnitee (an “Expense Advance”).
Notwithstanding anything in this Agreement to the contrary, and
except as provided in Section 3, prior to a Change of Control
(as defined in Section 9 herein), Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in
connection with any Claim (i) initiated by Indemnitee against
the Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such Claim;
or (ii) made on account of Indemnitee’s conduct which is
finally adjudicated (and not subject to appeal) to be a breach of
Indemnitee's duty of loyalty to the Company or is an act or
omission not made in good faith and made in a manner the Indemnitee
did not reasonably believe to be in or opposed to the best
interests of the Company, or which involves intentional misconduct
or a knowing violation of the law.
(b) Notwithstanding the
foregoing, (i) the indemnification obligations of the Company
under Section 1(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in
any case in which the special independent counsel referred to in
Section 2 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an Expense Advance pursuant to
Section 1(a) shall be subject to the condition that the
Company receives an undertaking that, if, when and to the extent
that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Company
shall be entitled to be reimbursed by Indemnitee (who hereby agrees
to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced legal
proceedings in the Court of Chancery of the State of Delaware (the
“Delaware Court”) to secure a determination that
Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not
be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
Indemnitee’s obligation to reimburse the Company for Expense
Advances shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control, the Reviewing
Party shall be selected by the Board of Directors, and if there has
been such a Change in Control, the Reviewing Party shall be the
special independent counsel referred to in Section 2 hereof.
If there has been no determination by the Reviewing Party or if the
Reviewing Party determines that
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Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation in the
Delaware Court seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any
aspect thereof and the Company hereby consents to service of
process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
Section 2 .
Change in Control . The Company agrees that if there is
a Change in Control of the Company (other than a Change in Control
which has been approved by two-thirds or more of the
Company’s Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other
agreement, the Bylaws or Certificate of Incorporation now or
hereafter in effect relating to Claims for Indemnifiable Events,
the Company shall seek legal advice only from special independent
counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed) and who has
not otherwise performed services for the Company within the last
five years (other than in connection with such matters) or for
Indemnitee. In the event that Indemnitee and the Company are unable
to agree on the selection of the special independent counsel, such
special independent counsel shall be selected by lot from among at
least five law firms with offices in the State of Delaware having
more than fifty attorneys, having a rating of “av” or
better in the then current Martindale Hubbell Law Directory and
having attorneys which specialize in corporate law. Such selection
shall be made in the presence of Indemnitee (and his legal counsel
or either of them, as Indemnitee may elect). Such counsel, among
other things, shall, within 90 days of its retention, render its
written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of
the special independent counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant
hereto.
Section 3 .
Indemnification for Additional Expenses . The Company
shall indemnify Indemnitee against any and all expenses (including
attorneys’ fees) and, if requested by Indemnitee in writing,
shall (within ten business days of such written request) advance
such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any Claim asserted against or action brought by
Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other
agreement, the Bylaws or Certificate of Incorporation now or
hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be. The Indemnitee shall
qualify for advances solely upon the execution and delivery to the
Company of an undertaking providing that the Indemnitee undertakes
to repay the advance to the extent that it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the
Company.
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Section 4 .
Partial Indemnity, Etc. If Indemnitee is entitled
under any provisions of this Agreement to indemnification by the
Company of some or a portion of the Expenses, liabilities,
judgments, fines, penalties and amounts paid in settlement of a
Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
Section 5 . No
Presumption . For purposes of this Agreement, the
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