Indemnification
Agreement
This Agreement,
made and entered into this
day of
, 200
(“Agreement”), by and among Biogen Idec Inc., a
Delaware corporation (the “Company”), and
(“Indemnitee”):
WHEREAS, it is
reasonable, prudent and necessary for the Company to obligate
itself to indemnify, and to advance expenses on behalf of, its
directors 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; and
WHEREAS,
Indemnitee is willing to serve as a director of the Company on the
condition that Indemnitee be so indemnified;
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
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1.
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Services by Indemnitee
. Indemnitee agrees to
serve or to continue to serve, as the case may be, as a director of
the Company. Indemnitee may at any time and for any reason resign
from such position (subject to any contractual obligation under any
other agreement or any obligation imposed by operation of
law).
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2.
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Indemnification —
General . The
Company shall indemnify and advance Expenses (as hereinafter
defined) to Indemnitee to the fullest extent permitted by
applicable law in effect on the date hereof and as amended from
time to time subject to the terms and conditions of this Agreement.
For the avoidance of doubt, the indemnification obligations of the
Company under this Agreement shall apply to (i) claims for
monetary damages against Indemnitee in respect of an alleged breach
of fiduciary duties, to the fullest extent permitted under
Section 145 of the Delaware General Corporation Law as in
existence on the date hereof and as amended from time to time and
(ii) Indemnitee’s participation, by reason of
Indemnitee’s Corporate Status, as a witness or other
participant in any Proceeding to which Indemnitee is not a party.
The indemnification obligations of the Company in this Agreement
shall continue after such time as Indemnitee ceases to be a
director of the Company, subject to the terms and conditions of
this Agreement.
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3.
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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 3 if,
by reason of Indemnitee’s Corporate Status (as hereinafter
defined), Indemnitee is, or is threatened to be made, a party to or
a participant in any Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Company. Pursuant to
this Section 3, Indemnitee shall be indemnified with respect
to, and held harmless from and against, all Expenses, judgments,
penalties, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments,
penalties, fines and amounts paid in settlement) reasonably
incurred by Indemnitee or on behalf of Indemnitee in connection
with such Proceeding or any claim, issue or matter therein, 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 Proceeding, had no
reasonable cause to believe Indemnitee’s conduct was
unlawful.
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4.
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Proceedings by or in the Right of
the Company . Indemnitee shall be entitled to
the rights of indemnification provided in this Section 4 if,
by reason of Indemnitee’s Corporate Status, Indemnitee is, or
is threatened to be made, a party to or a participant in any
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 4, Indemnitee
shall be indemnified with respect to, and held harmless from and
against, all Expenses (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses) reasonably incurred by Indemnitee or on behalf of
Indemnitee in connection with such 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;
provided , however , that 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 if, and only to the extent
that, the Court of Chancery of the State of Delaware, or the court
in which such Proceeding shall have been brought or is pending,
shall determine that such indemnification may be made.
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5.
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Mandatory Indemnification
. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, by reason of Indemnitee’s Corporate Status, a party to
(or a participant in) and is successful, on the merits or
otherwise, in defense of any Proceeding, Indemnitee shall be
indemnified with respect to, and held harmless from and against,
all Expenses reasonably incurred by Indemnitee or on behalf of
Indemnitee in connection therewith. If Indemnitee is not wholly
successful in defense of 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 reasonably incurred by Indemnitee
or on behalf of Indemnitee in connection with each successfully
resolved claim, issue or matter. 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, on substantive or procedural grounds, shall be
deemed to be a successful result as to such claim, issue or
matter.
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6.
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Partial Indemnification
. If Indemnitee is
entitled under any provision of this agreement to indemnification
by the Company for some or a portion of the Expenses, judgments,
penalties, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments,
penalties, fines and amounts paid in settlement) incurred by
Indemnitee or on behalf of Indemnitee in connection with such
Proceeding or any claim, issue or matter therein, but not, however,
for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for that portion thereof to which Indemnitee
is entitled.
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7.
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Advancement of Expenses
. The Company shall
advance all Expenses reasonably incurred by or on behalf of
Indemnitee in connection with any Proceeding within twenty
(20) business days after the receipt by the Company of a
written 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. Such advances (i) shall be
unsecured and interest free, (ii) shall be made without regard
to Indemnitee’s ability to repay the advances,
(iii) shall continue until such time (if any) as there is a
final judicial determination that Indemnitee is not entitled to
indemnification and (iv) shall in all cases be subject to the
terms and conditions of this Agreement. In the event that it is
ultimately determined that Indemnitee is not entitled to be
indemnified for any Expenses advanced to Indemnitee, then the
Company shall be entitled to be reimbursed, within one hundred and
eighty (180) days of such determination, by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid.
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8.
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Procedure for Determination of
Entitlement to Indemnification .
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a.
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To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request for indemnification at such
time as determined by Indemnitee in Indemnitee’s sole
discretion; provided , however , that the failure of
Indemnitee to so notify the Company shall not relieve the Company
of any obligation which it may have to the Indemnitee under this
Agreement or otherwise except to the extent that any delay in such
notification actually and materially prejudices the Company. Upon
such written request for indemnification, Indemnitee’s
entitlement to indemnification shall be determined by the
procedures set forth in Sections 8(b) through 8(e) and
Section 9 hereof.
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b.
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Promptly upon receipt of such a
request for indemnification, the Secretary of the Company shall
advise the Board in writing that Indemnitee has requested
indemnification. Upon written request by Indemnitee for
indemnification, a determination with respect to Indemnitee’s
entitlement to indemnification shall, if required by applicable
law, be made in the specific case as follows: (i) if requested
by Indemnitee, by Independent Counsel, or (ii) if no request
is made by Indemnitee for a determination by Independent Counsel,
(A) by the Board by a majority vote of the Disinterested
Directors, even though less than a quorum, or (B) by a
committee of Disinterested Directors designated by a majority vote
of the Disinterested Directors, even though less than a quorum, or
(C) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee, or (D) if a quorum of Disinterested Directors so
directs, by the stockholders of the Company. If it is so determined
that Indemnitee is entitled to indemnification, the Company shall
pay Indemnitee within twenty (20) business days after such
determination any then known amounts with respect to which it has
been so determined that Indemnitee is entitled to indemnification
hereunder and will pay any other amounts thereafter incurred for
which Indemnitee is entitled to indemnification within twenty
(20) business days of the Company’s receipt of
reasonably detailed invoices for such amounts.
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c.
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The
Company and Indemnitee shall each cooperate with the person,
persons or entity making the 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 which is not privileged or
protected by the work-product doctrine or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or Expenses
(including attorneys’ fees and disbursements) reasonably
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 agrees to
indemnify and hold Indemnitee harmless therefrom.
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d.
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In
the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8(b) hereof, the
Independent Counsel shall be selected as provided in this
Section 8(d). If a Change of Control shall not have occurred
within two years prior to the date of the commencement of the
Proceeding for which indemnification is claimed, the Independent
Counsel shall be selected by the Board of Directors, and the
Company shall give written notice to Indemnitee advising him of the
identity of the Independent Counsel so selected. If a Change of
Control shall have so occurred, the Independent Counsel shall be
selected by Indemnitee (unless Indemnitee shall
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request that
such selection be made by the Board of Directors, in which event
the preceding sentence shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within ten (10) days after such
written notice of selection shall have been given, deliver to the
Company or to Indemnitee, 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 16 of
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is so made and substantiated, the Independent Counsel so
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.
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e.
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If,
within thirty (30) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 8(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 for resolution of any
objection which shall have been made by the Company or Indemnitee
to the other’s selection of Independent Counsel 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
8(b) hereof. The Company shall pay any and all fees and expenses of
Independent Counsel reasonably incurred in connection with acting
pursuant to Section 8(b) hereof, and the Company shall pay all
reasonable fees and expenses incident to the procedures of this
Section 8, regardless of the manner in which such Independent
Counsel was selected or appointed. Upon the due commencement of any
judicial proceeding pursuant to Section 11(a)(iii) of this
Agreement, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the
applicable standards of professional conduct then
prevailing).
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9.
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Presumptions and Effect of Certain
Proceedings .
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a.
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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 if Indemnitee has submitted a
request for indemnification in accordance with Section 8(a) of this
Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption. Neither the failure of the Company (including its
board of directors, independent legal counsel or stockholders) 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 the fact that the Company (including its board of
directors, independent legal counsel or stockholders) has
determined 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. 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
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respect to any
criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
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b.
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If
the person, persons or entity empowered or selected under
Section 8 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made a determination
within ninety (90) 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(s) not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law.
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c.
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For
purposes of any determination of good faith, 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 Company or relevant
enterprise, including financial statements, or on information
supplied to Indemnitee by the officers, employees, or committees of
the board of directors of the Company or relevant enterprise in the
course of their duties, or on the advice of lega
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