EXHIBIT 10.149
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT, made
and entered into as of the
day
of
,
20 (“Agreement”),
by and between Indevus Pharmaceuticals, Inc., a Delaware
corporation (the “Corporation”), and
(“Indemnitee”):
WHEREAS, recently, highly competent
persons have become more reluctant to serve both privately and
publicly-held corporations as directors, officers, or in other
capacities, unless they are provided with better protection from
the risk of claims and actions against them arising out of their
service to and activities on behalf of such corporations;
and
WHEREAS, the current
impracticability of obtaining adequate insurance and the
uncertainties related to indemnification have increased the
difficulty of attracting and retaining such persons; and
WHEREAS, the Board of Directors of
the Corporation (the “Board”) has determined that the
ability to attract and retain such persons is in the best interests
of the Corporation’s stockholders and that such persons
should be assured that they will have better protection in the
future; and
WHEREAS, it is reasonable, prudent
and necessary for the Corporation to obligate itself contractually
to indemnify such persons to the fullest extent permitted by
applicable law, so that such persons will serve or continue to
serve the Corporation free from undue concern that they will not be
adequately indemnified; and
WHEREAS, this Agreement is a
supplement to and in furtherance of Article SEVENTH of the
Certificate of Incorporation of the Corporation (the
“Certificate”); any rights granted under the
Certificate and any resolutions adopted pursuant thereto shall not
be deemed to be a substitute therefor nor to diminish or abrogate
any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee may serve,
continue to serve and to take on additional service for or on
behalf of the Corporation;
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Corporation
and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions .
For purposes of this Agreement:
(a) “Change in Control”
means a change in control of the Corporation of a nature that would
be required to be reported in response to Item 6(e) of
Schedule l4A of Regulation l4A (or in response to any similar item
on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the “Act”), whether or not the
Corporation is then subject to such reporting requirement;
provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the
“beneficial owner” (as defined in Rule l3d-3 under the
Act), directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the
Corporation’s then outstanding securities without the prior
approval of at least two-thirds of the members of the Board in
office immediately prior to such person attaining such percentage
interest; (ii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less than
a majority of the Board thereafter; or (iii) during any period
of two consecutive years, individuals who at the beginning of such
period constituted the Board (including for this purpose any new
director whose election or nomination for election by the
Corporation’s shareholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute
at least a majority of the Board.
(b) “Corporate Status”
means the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Corporation or any majority
owned subsidiary or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the request of the
Corporation.
(c) “Disinterested
Director” means a director of the Corporation who is not and
was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) “Expenses” means all
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent:
(i) the Corporation or Indemnitee in any other matter material
to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Corporation
or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(f) “Proceeding” means
any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or
investigative, or any inquiry, hearing or investigation that
Indemnitee in good faith believes might lead to the institution of
any such action, suit or proceeding, except one initiated by an
Indemnitee pursuant to Section 11 of this Agreement to enforce
his rights under this Agreement.
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Section 2. Services by
Indemnitee . Indemnitee may at any time and for any reason
resign from any position (subject to any other contractual
obligation or any obligation imposed by operation of law), without
affecting the indemnification hereunder, except as specifically
provided in this agreement.
Section 3. Indemnification -
General . The Corporation shall indemnify, and advance Expenses
to, Indemnitee as provided in this Agreement to the fullest extent
permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to
time permit. The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set
forth in the other Sections of this Agreement.
Section 4. Proceedings Other
Than Proceedings by or in the Right of the Corporation .
Indemnitee shall be entitled to the rights of indemnification
provided in this Section if, by reason of his Corporate Status, he
was, is, or is threatened to be made, a party to any threatened,
pending, or completed Proceeding, other than a Proceeding by or in
the right of the Corporation. Pursuant to this Section, Indemnitee
shall be indemnified against Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by
him or on his behalf in connection with any such Proceeding or any
claim, issue or matter therein, to the fullest extent permitted by
law, 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
Corporation, and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 5. Proceedings by or
in the Right of the Corporation . Indemnitee shall be entitled
to the rights of indemnification provided in this Section if, by
reason of his Corporate Status, he was, is, or is threatened to be
made, a party to any threatened, pending, or completed Proceeding
brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with any such Proceeding, to the
fullest extent permitted by law, 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 Corporation. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in any such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation
if applicable law prohibits such indemnification unless the
Chancery Court of the State of Delaware or the court in which such
Proceeding shall have been brought or is pending, shall determine
that indemnification against Expenses may nevertheless be made by
the Corporation.
Section 6. 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 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 Corporation shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf
in
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connection with each successfully resolved
claim, issue or matter. For the purposes of this Section and
without limiting the foregoing, the termination of any claim, issue
or matter in any such Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 7. 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, he shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
Section 8. Advancement of
Expenses . The Corporation shall advance all Expenses incurred
by or on behalf of Indemnitee in connection with any Proceeding
within twenty days after the receipt by the Corporation 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, and reasonably evidencing the
Expenses incurred by Indemnitee provided that Indemnitee hereby
agrees to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such Expenses.
Section 9. Procedure for
Determination of Entitlement to Indemnification .
(a) To obtain indemnification under
this Agreement in connection with any Proceeding, and for the
duration thereof, Indemnitee shall submit to the Corporation 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. Upon receipt of any such
request for indemnification, the Board shall be advised in writing
that Indemnitee has requested indemnification.
(b) Upon written request by
Indemnitee for indemnification pursuant to Section 9(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto, if the
Indemnitee is a director or officer at the time of such
determination, shall be made in such case: (i) if a Change in
Control shall have occurred, by Independent Counsel (unless
Indemnitee shall request that such determination be made by the
Board or the stockholders, in which case in the manner provided for
in clauses (ii) or (iii) of this Section 9(b)) in a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have
occurred, (A) by the Board by a majority vote of a quorum
consisting of Disinterested Directors, (B) if a quorum of the
Board consisting of Disinterested Directors is not obtai
