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Exhibit 10.20
OPTIMER PHARMACEUTICALS, INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (" Agreement" ) is made as of this
day of
, 2002, by and between Optimer Pharmaceuticals, Inc., a
Delaware corporation (the " Company" ), and
(" Indemnitee ").
WHEREAS , the Company and Indemnitee recognize the
significant cost of directors' and officers' liability insurance
and the general reductions in the coverage of such insurance;
WHEREAS , the Company and Indemnitee further
recognize the substantial increase in corporate litigation in
general, subjecting officers and directors to expensive litigation
risks at the same time as the coverage of liability insurance has
been severely limited; and
WHEREAS , the Company desires to attract and retain
the services of highly qualified individuals, such as Indemnitee,
to serve as officers and directors of the Company and to indemnify
its officers and directors so as to provide them with the maximum
protection permitted by law.
NOW,
THEREFORE , in consideration for Indemnitee's services as
an officer or director of the Company, the Company and Indemnitee
hereby agree as follows:
1.
Indemnification.
(a)
Third Party Proceedings. The Company
shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or any alternative dispute
resolution mechanism, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any
subsidiary of the Company, or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with
such action, suit or 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, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe Indemnitee's conduct was unlawful. 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 respect to any criminal action
or proceeding, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
(b)
Proceedings By or in the Right of the Company.
The Company shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the Company or any subsidiary of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or any
subsidiary of the Company, or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees) and, to the fullest extent permitted by
law, amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such
action or suit 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, except that no indemnification shall be
made in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Company
unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery of the State of
Delaware or such other court shall deem proper.
(c)
Mandatory Payment of Expenses. To
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in Subsections (a) and (b) of this
Section 1, or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
Indemnitee in connection therewith.
2.
Agreement to Serve.
In consideration of the protection afforded
by this Agreement, if Indemnitee is a director of the Company he
agrees to serve at least for the 90 days after the effective
date of this Agreement as a director and not to resign voluntarily
during such period without the written consent of a majority of the
Board of Directors. If Indemnitee is an officer of the Company not
serving under an employment contract, he agrees to serve in such
capacity at least for 90 days and not to resign voluntarily
during such period without the written consent of a majority of the
Board of Directors. Following the applicable period set forth
above, Indemnitee agrees to continue to serve in such capacity at
the will of the Company (or under separate agreement, if such
agreement exists) so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the
Bylaws of the Company or any subsidiary of the Company or until
such time as he tenders his resignation in writing. Nothing
contained in this Agreement is intended to create in Indemnitee any
right to continued employment.
3.
Expenses; Indemnification
Procedure.
(a)
Advancement of Expenses. The Company
shall advance all expenses incurred by Indemnitee in connection
with the investigation, defense, settlement or appeal of any civil
or criminal action, suit or proceeding referenced in
Section 1(a) or (b) hereof (but not
amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder
shall be paid by the Company to Indemnitee within thirty
(30) days following delivery of a written request therefor by
Indemnitee to the Company.
2
(b)
Notice/Cooperation by Indemnitee.
Indemnitee shall, as a condition precedent
to his 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. Notice to the Company shall be
directed to the President of the Company at the address shown on
the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). Notice shall
be deemed received three business days after the date postmarked if
sent by domestic certified or registered mail, properly addressed,
five business days if sent by airmail to a country outside of North
America; otherwise notice shall be deemed received when such notice
shall actually be received by the Company. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee's
power.
(c)
Procedure. Any indemnification and
advances provided for in Section 1 and this
Section 3 shall be made no later than thirty (30) days
after receipt of the written request of Indemnitee. If a claim
under this Agreement, under any statute, or under any provision of
the Company's Certificate of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within thirty
(30) days after a written request for payment thereof has
first been received by the Company, Indemnitee may, but need not,
at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim and, subject to
Section 14 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys' fees) of
bringing such action. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in connection with any action, suit or proceeding in
advance of its final disposition) that Indemnitee has not met the
standards of conduct which make it permissible under applicable law
for the Company to indemnify Indemnitee for the amount claimed.
However, Indemnitee shall be entitled to receive interim payments
of expenses pursuant to Subsection 3(a) unless and until
such defense may be finally adjudicated by court order or judgment
from which no further right of appeal exists. It is the parties'
intention that if the Company contests Indemnitee's right to
indemnification, the question of Indemnitee's right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Company (including it Board of Directors, any committee or subgroup
of the Board of Directors, independent legal counsel, or
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