INDEMNIFICATION
AGREEMENT
This
INDEMNIFICATION AGREEMENT (the “ Agreement ”) is
made and entered into this
day of , 20___ between Repros
Therapuetics Inc., a Delaware corporation (the “
Company ”) and
(“ Indemnitee ”).
WHEREAS,
Indemnitee performs a valuable service for the Company;
and
WHEREAS, the Board
of Directors of the Company has adopted the Restated Bylaws of the
Company (the “ Bylaws ”) providing for the
indemnification of the directors, executive officers and other key
employees of the Company to the maximum extent authorized by
Section 145 of the Delaware General Corporation Law, as
amended (the “ DGCL ”); and
WHEREAS, the Board
of Directors has determined that for purposes of indemnification
protection afforded by the Company, including as specifically used
in this Agreement, the term “director” shall refer to
members of the Board of Directors and any advisory director serving
by appointment of the Board; and
WHEREAS, the
Bylaws and the DGCL by their nonexclusive nature, permit contracts
between the Company and the directors and officers of the Company
with respect to indemnification of such directors and officers;
and
WHEREAS, in
accordance with the authorization as provided by the Bylaws and the
DGCL, the Company may purchase and maintain a policy or policies of
director’s and officer’s liability insurance (“
D & O Insurance ”), covering certain liabilities
which may be incurred by its directors and/or officers in the
performance of their obligations as directors and/or officers of
the Company; and
WHEREAS, as a
result of recent developments affecting the terms, scope and
availability of indemnification protection afforded under statutory
and bylaw indemnification provisions, there exists general
uncertainty as to the extent of protection afforded Company
directors and officers by such provisions; and
WHEREAS, in
recognition of past services and in order to induce Indemnitee to
continue to serve as a director and/or officer of the Company, the
Company has determined and agreed to enter into this contract with
Indemnitee;
NOW, THEREFORE, in
consideration of Indemnitee’s service as a director and/or
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 full extent authorized or permitted by
the provisions of the DGCL, as such may be amended from time to
time, and Article VII of the Bylaws, as such may be amended;
provided that the parties hereto acknowledge that it is their
intent that Indemnitee shall enjoy the greater of (i) the
advancement and indemnification rights permitted under the
certificate of incorporation of the Company and the Bylaws for
directors and officers as of the
date hereof or
(ii) the benefits so afforded by such amendments. 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 1(a) if, by reason of his
Corporate Status (as hereinafter defined), he 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 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 and, with respect
to any criminal Proceeding, had no reasonable cause to believe his
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, he is, or is
threatened to be made, a party to or participant in any Proceeding
brought by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 1(b), Indemnitee shall be
indemnified against all 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; provided,
however, that, 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, or the court in
which such Proceeding shall have been brought or is pending, 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 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 1 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.
(a) Subject
only to the exclusions set forth in Section 2(b) hereof, the
Company hereby further agrees to hold harmless and indemnify
Indemnitee against any and all expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with any Proceeding (including an action
by or on behalf of the Company) to which Indemnitee is, was or at
any time becomes a party, or is threatened to be made a party,
by
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reason of his
Corporate Status; provided, however, that with respect to actions
by or on behalf of the Company, indemnification of Indemnitee
against any judgments shall be made by the Company only as
authorized in the specific case upon a determination that
Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company; and
(b) No
indemnity pursuant to this Section 2 shall be paid by the
Company:
(i) In
respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that
such remuneration was in violation of law;
(ii) On
account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or
sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any federal, state
or local statutory law;
(iii) On
account of Indemnitee’s conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct; or
(iv) If
a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
3.
CONTRIBUTION. If the indemnification provided in Sections 1
and 2 is unavailable and may not be paid to Indemnitee for any
reason other than those set forth in paragraphs (i), (ii),
(iii) and (iv) of Section 2(b), then in respect to
any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee in such proportion as is appropriate
to reflect (i) the relative benefits received by the Company
on the one hand and by the Indemnitee on the other hand from the
transaction from which such Proceeding arose, and (ii) the
relative fault of the Company on the one hand and of the Indemnitee
on the other hand in connection with the events which resulted in
such Expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Indemnitee on the other hand
shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting
in such Expenses, judgments, fines or settlement amounts. The
Company agrees that it would not be just and equitable if
contribution pursuant to this Section 3 were determined by pro
rata allocation or any other method of allocation which does not
take account of the foregoing equitable considerations.
4.
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.
5. ADVANCEMENT
OF EXPENSES. The Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee’s Corporate Status within
ten (10) days after the receipt by the Company of a
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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 5 shall be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Company
to advance Expenses pursuant to this Section 5 shall be
subject to the condition that, if, when and to the extent that the
Company determines that Indemnitee would not be permitted to be
indemnified under applicable law, the Company shall be entitled to
be reimbursed, within thirty (30) days of such determination,
by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any
determination made by the Company 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 advance of Expenses until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
6. PROCEDURE
FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To
obtain indemnification (including, but not limited to, the
advancement of Expenses and contribution by the Company) 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 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 6(a) hereof, a determination, if required
by applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case: (i) if a Change in
Control (as hereinafter defined) shall have occurred, by
Independent Counsel (as hereinafter defined) in a written opinion
to the Board of Directors, a copy of which shall be delivered to
Indemnitee (unless Indemnitee shall request that such determination
be made by the Board of Directors or the stockholders, in which
case the determination shall be made in the manner provided in
Clause (ii) below), or (ii) if a Change in Control shall
not have occurred, (A) by the Board of Directors by a majority
vote of a quorum consisting of Disinterested Directors (as
hereinafter defined), or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, said Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee, or (C) if so
directed by said Disinterested Directors, by the stockholders of
the Company; and, if it is determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. 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
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request any
documentation or information which is not privileged or otherwise
protected from disclosure and which 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 under the Agreement of the
Indemnitee’s entitlement to indemnification. 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.
(c) If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 6(b) hereof, the
Independent Counsel shall be selected as provided in this
Section 6(c). If a Change in Control shall not have occurred,
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 in Control shall have occurred, the
Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall 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 14(f) 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 twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected, or
Independent Counsel has been selected and objected to, and such
objection has not been resolved, 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 which shall have been made by the Company or Indemnitee
to the other’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
6(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 6(b) hereof,
and the Company shall pay all reasonable fees and expenses incident
to the procedures of this Section 6(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 8 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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(d) The
Company shall not be required to obtain the consent of the
Indemnitee to the settlement of any Proceeding which the Company
has undertaken to defend if the Company assumes full and sole
responsibility for such settlement and the settlement grants the
Indemnitee a complete and unqualified release in respect of the
potential liability.
7. PRESUMPTIONS
AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In
making a determination with
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