Exhibit 10.55
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is entered into as of
, 2008 by and between Neuromed Pharmaceuticals Inc., a Delaware
corporation (the “ Company ”), and the director
or officer of the Company identified on the signature page hereto
(the “ Indemnitee ”).
RECITALS
A. The Company and Indemnitee
recognize that highly competent persons have become more reluctant
to serve 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.
B. The Company and Indemnitee
further recognize the substantial increase in corporate litigation
in general, subjecting directors to expensive litigation risks at
the same time as the availability and coverage of liability
insurance has been severely limited.
C. The current protection available
to directors and officers may not be adequate under the present
circumstances, and directors and officers, including the
Indemnitee, may not be willing to continue to serve or be
associated with the Company in such capacities without additional
protection for themselves.
D. The Company (i) desires to
attract and retain the involvement of highly qualified persons,
such as Indemnitee, to serve and be associated with the Company,
and (ii) accordingly, wishes to provide for the
indemnification and advancement of expenses to the
Indemnitee.
AGREEMENT
NOW, THEREFORE, the Company and the
Indemnitee hereby agree as follows:
1. Indemnification
.
(a) Indemnification of
Expenses . The Company shall indemnify and hold harmless the
Indemnitee to the fullest extent permitted by law if such
Indemnitee was or 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, any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that such
Indemnitee in good faith believes might lead to the institution of
any such action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other (hereinafter a “ Claim ”) by reason of
(or arising in part out of) any event or occurrence related to the
fact that Indemnitee is or was (or is alleged to be or to have
been) a director, officer, employee, controlling person, fiduciary
or other agent or affiliate of the Company, or any subsidiary of
the Company, or is or was (or is alleged to be or to have been)
serving at the request of the Company as a director, officer,
employee, fiduciary or other agent or affiliate of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason
of any action or inaction on the part of such
Indemnitee while serving or acting (or allegedly serving or acting)
in such capacity, including, without limitation, any such Claim
under the Securities Act of 1933, as amended (the “
Securities Act ”), the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), or any
other federal or state statutory law or regulation, or any such
Claim, at common law or otherwise, that relates directly or
indirectly (i) to the registration, purchase, sale or
ownership of any securities of the Company or (ii) to any
fiduciary obligation owed with respect to the Company and its
stockholders (hereinafter an “ Indemnification Event
”), against any and all losses, claims, damages, expenses and
liabilities, joint or several, incurred in connection with such
Claim (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of
(if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) any such Claim) and
against any and all expenses (including reasonable attorneys’
fees and all other costs, expenses and obligations incurred in
connection with investigating, defending or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in, any action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation related to
such Claim), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of 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 (collectively, hereinafter “
Expenses ”), including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses. The Company shall make such payment of Expenses as
soon as practicable but in any event no later than thirty
(30) days after written demand by the Indemnitee therefor is
presented to the Company.
(b) Reviewing Party .
Notwithstanding the foregoing, (i) the obligations of the
Company under Section l(a) shall be subject to the condition
that the Reviewing Party (as defined in Section 9(e)
hereof) shall not have determined (in a written opinion, in any
case in which the Independent Legal Counsel referred to in
Section 9(d) 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 advance payment
of Expenses to Indemnitee pursuant to Section 2(a) (an
“ Expense Advance ”) shall be subject to the
condition that, if, when and to the extent that a court of
competent jurisdiction 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 if such determination is so made) for all
such amounts theretofore paid. Indemnitee’s obligation to
reimburse the Company for any Expense Advance shall be unsecured
and no interest shall be charged thereon. If there has not been a
Change in Control (as defined in Section 9(c) hereof),
the Reviewing Party shall be selected by the Board of Directors,
and if there has been such a Change in Control (other than a Change
in Control (i) which has been approved by a majority of the
Company’s Board of Directors prior to such Change in Control
or (ii) following which a majority of the Board of Directors
of the Company (or the ultimate parent entity thereof) is comprised
of directors who were directors of the Company immediately prior to
the Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 9(d)
hereof subject to the approval of the Indemnitee (which approval
shall not be unreasonably withheld). Such counsel, among other
things, shall 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 Independent Legal Counsel
referred to above
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and to fully indemnify such counsel against any
and all expenses (including reasonable attorneys’ fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. If there has been no
determination by the Reviewing Party or if the Reviewing Party
determines that 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 seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or
factual bases therefor, 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.
(c) Contribution . If the
indemnification provided for in Section 1(a) above for
any reason is held by a court of competent jurisdiction to be
unavailable to Indemnitee in respect of any Claims referred to
therein, then the Company, in lieu of indemnifying Indemnitee
thereunder, shall contribute to the amount paid or payable by
Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Indemnitee, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company and the Indemnitee in connection with the
action or inaction which resulted in such losses, claims, damages,
expenses or liabilities, as well as any other relevant equitable
considerations.
(d) Survival Regardless of
Investigation . The indemnification and contribution provided
for in this Section 1 will remain in full force and
effect regardless of any investigation made by or on behalf of the
Indemnitee or any officer, director, employee, agent or controlling
person of the Indemnitee.
(e) Mandatory Payment of
Expenses . Notwithstanding any other provision of this
Agreement, to the extent that an Indemnitee has been successful on
the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any
action, suit, proceeding, inquiry or investigation referred to in
Section (l)(a) hereof or in the defense of any claim, issue
or matter therein, such Indemnitee shall be indemnified against all
Expenses incurred by such Indemnitee in connection
therewith.
2. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Company shall advance all Expenses incurred by any Indemnitee.
The advances to be made hereunder shall be paid by the Company to
the Indemnitee as soon as practicable but in any event no later
than thirty (30) days after written demand by such Indemnitee
therefor to the Company, which written demand shall include
reasonable detail and support for the amount of the Expenses to be
so advanced.
(b) Notice/Cooperation by
Indemnitees . Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or
could be sought under this Agreement. In addition, Indemnitee shall
give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
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(c) No Presumptions; Burden of
Proof . For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere ,
or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any
particular belief or that a court has determined that
indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a
determination as to whether an Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that the Indemnitee has not
met such standard of conduct or did not have such belief, prior to
the commencement of legal proceedings by Indemnitee to secure a
judicial determination that the Indemnitee should be indemnified
under applicable law, shall be a defense to the Indemnitee’s
claim or create a presumption that the Indemnitee has not met any
particular standard of conduct or did not have any particular
belief. In connection with any determination by the Reviewing Party
or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company
to establish that the Indemnitee is not so entitled.
(d) Notice to Insurers . If,
at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 2(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the
Company shall give prompt notice of the commencement of such Claim
to the insurers in accordance with the procedures set forth in the
respective policies. If the Company has not paid such amounts
directly, the Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of each
Indemnitee, all amounts payable as a result of such action, suit,
proceeding, inquiry or investigation in accordance with the terms
of such policies.
(e) Selection of Counsel . In
the event the Company shall be obligated hereunder to pay the
Expenses of any Claim, the Company shall be entitled to assume the
defense of such Claim, with counsel approved by the applicable
Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to such Indemnitee of written notice of its election
to do so. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with
respect to the same Claim; provided, however, that
(i) Indemnitee shall have the right to employ
Indemnitee’s separate counsel in any such Claim at
Indemnitee’s expense and (ii) if (A) the employment
of separate counsel by Indemnitee has been previously authorized by
the Company, (B) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the
Company shall not continue to retain such counsel to defend such
Claim, then the fees and expenses of Indemnitee’s separate
counsel shall be at the expense of the Company. As long as the
Company has otherwise complied with the terms hereof, the Company
shall have the right to conduct such defense as it sees fit in its
sole discretion, including the right to settle any claim, action or
proceeding against any Indemnitee without the consent of such
Indemnitee, provided such settlement includes a full release of the
Indemnitee by the claimant from all liabilities or potential
liabilities under such Claim.
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3. Additional Indemnification
Right
