|
Exhibit 10.6
PROGENICS PHARMACEUTICALS,
INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is
made and entered into as of this 1st day of January, 2007, by and
between Progenics Pharmaceuticals, Inc., a Delaware corporation
(the "Corporation"), and ______________ (the
"Indemnitee").
WHEREAS, the Corporation recognizes that
competent and experienced persons are increasingly reluctant to
serve as directors or officers of publicly-held corporations,
unless they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation
costs and risks arising out of their service to and activities on
behalf of such corporation;
WHEREAS, the Corporation, after reasonable
investigation, has determined that the liability insurance coverage
presently available to the Corporation may be inadequate in certain
circumstances to cover all possible exposure for which the
Indemnitee should be protected;
WHEREAS, the Board of Directors of the
Corporation (the "Board") has determined that the inability to
attract and retain such persons is detrimental to the best
interests of the Corporation and its stockholders. The Corporation
believes that these interests would be best served by a combination
of such insurance and the indemnification by the Corporation of the
directors and officers of the Corporation;
WHEREAS, the Corporation’s By-laws require
the Corporation to indemnify its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law
(the "DGCL"), under which the Corporation is organized. The By-laws
further expressly provide that the indemnification provisions set
forth therein are not exclusive and that contracts with regard to
indemnification may be entered into between the Corporation and its
directors and officers;
WHEREAS, Section 145 of the DGCL ("Section 145")
allows the Corporation to indemnify its officers, directors,
employees and agents by agreement and to indemnify persons who
serve, at the request of the Corporation, as directors, officers,
employees, agents or fiduciaries of other corporations or
enterprises, and expressly provides that the indemnification
provided by Section 145 is not exclusive;
WHEREAS, the Board has determined that it is
reasonable and prudent for the Corporation to obligate itself
contractually to indemnify such persons as set forth herein and
that such contractual indemnification promotes the best interests
of the Corporation and its stockholders;
WHEREAS, the Corporation desires and has
requested Indemnitee to serve or continue to serve as a director or
officer (or both) of the Corporation, and has requested or may in
the future request Indemnitee to serve as a director, officer,
employee, agent or fiduciary of another corporation or other
enterprise, in any event free from undue concern that he will not
be adequately indemnified against unwarranted claims for damages
arising out of or related to such services to the
Corporation;
WHEREAS, Indemnitee is willing to serve, continue
to serve and to take on additional service for or on behalf of the
Corporation on the condition that he be indemnified according to
the terms of this Agreement; and
WHEREAS, this Agreement is a supplement to and in
furtherance of Article XII of the By-laws of the Corporation, any
rights granted under the Certificate of Incorporation of the
Corporation and any resolutions adopted pursuant thereto and shall
neither be deemed to be a substitute therefor nor to diminish or
abrogate any rights of Indemnitee thereunder.
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) "Corporate
Status" means the status of a person attained by virtue of being a
director , officer,
employee, agent or fiduciary of the Corporation 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.
(b) "Disinterested Director" means a director of the Corporation
who is not at the time a party to the Proceeding in respect of
which indemnification is being sought by Indemnitee.
(c) "Expenses"
means all reasonable attorneys' fees and related disbursements,
appeal bonds, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
retainers, other out-of pocket costs and reasonable compensation
for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defending, investigating, or being or preparing to be a witness in
a Proceeding.
(d) "Independent Legal Counsel" means a law firm or a member of a
law firm that is experienced in matters of corporation law and who
has not represented the Corporation or related organization, or a
director, officer, member of a committee of the board or employee,
whose indemnification is in issue. Notwithstanding the foregoing,
the term "Independent Legal 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 right to indemnification under this
Agreement.
2
(e) "Proceeding" means the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative.
Section 2. Services by Indemnitee . Indemnitee agrees to serve, or
continue to serve, as a director or officer (or both) of the
Corporation, and, at the Corporation’s request, to serve, or
continue to serve, as a director, officer, employee, agent or
fiduciary of other corporations and enterprises. Indemnitee may at
any time and for any reason resign from any such position (subject
to any other contractual obligation or any obligation imposed by
operation of law).
Section 3. General Indemnification . The Corporation hereby agrees
to indemnify and hold harmless (including, without limitation, by
advancement of Expenses) Indemnitee to the fullest extent permitted
by, and in the manner permissible under applicable law as it
presently exists or may hereafter be amended. In addition to (but
not in duplication of) the foregoing right to indemnification, the
general right to indemnification set forth in Article XII of the
Corporation’s By-laws and any other rights of indemnification
to which Indemnitee is entitled under applicable law or otherwise,
the Corporation hereby agrees to provide Indemnitee the specific
rights to indemnification set forth in Section 4 through Section 10
of this Agreement.
Section 4. Indemnification for a Proceeding, etc.
(a) 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 4(a) if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to or
participant in any threatened, pending or completed Proceeding,
other than a Proceeding by or in the right of the Corporation.
Pursuant to this Section 4(a), 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, 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. For
purposes of this Agreement, "fines" shall include, without
limitation, excise taxes assessed against Indemnitee with respect
to an employee benefit plan.
(b) Proceedings by or in the Right of the Corporation .
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4(b) if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to or
participant in 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 4(b), Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by
him or on his behalf in connection with any 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 Corporation.
Notwithstanding the foregoing, if applicable law so provides, 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 finally adjudged to be liable to the
Corporation 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 nevertheless be made by the
Corporation.
3
(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. For purposes of this Agreement and without limiting the
foregoing, if any action, suit or proceeding is disposed of, on the
merits or otherwise (including a disposition without prejudice),
without (i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Corporation, (iii) a
plea of guilty or nolo
contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation, and (v) with respect to any
criminal proceeding, an adjudication that Indemnitee had reasonable
cause to believe Indemnitee’s conduct was unlawful,
Indemnitee shall be considered for the purposes hereof to have been
wholly successful with respect thereto.
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 connection with each successfully resolved claim, issue or
matter.
(d) Additional Indemnity . In addition to, and without
regard to any limitations on, the indemnification provided for in
Sections 4(a) through 4(c), the Corporation shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf if, by reason of
his Corporate Status he is, or is threatened to be made, a party to
or participant in any Proceeding (including, without limitation, a
Proceeding by or in the right of the Corporation). The only
limitation that shall exist upon the Corporation’s
obligations pursuant to this Agreement shall be that the
Corporation shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections 6, 7 and 8
hereof) to be unlawful under Delaware law.
(e) Contribution in the Event of Joint Liability .
(i) Whether or
not the indemnification provided in Sections 4(a) through 4(d)
hereof is available, in respect of any threatened, pending or
completed action, suit or proceeding in which the Corporation is
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), the Corporation shall pay, in the
first instance, the entire amount of any judgment or settlement of
such action, suit or Proceeding without requiring Indemnitee to
contribute to such payment, and the Corporation hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Corporation shall not enter into any settlement of
any action, suit or proceeding in which the Corporation is jointly
liable with Indemnitee (or would be if joined in such action, suit
or proceeding) unless such settlement provides for a full and final
release of all claims asserted against Indemnitee.
4
(ii) Without
diminishing or impairing the obligations of the Corporation set
forth in the preceding subparagraph, if, for any reason, Indemnitee
shall elect or be required to pay all or any portion of any
judgment or settlement in any threatened, pending or completed
action, suit or proceeding in which Corporation is jointly liable
with Indemnitee (or would be if joined in such action, suit or
proceeding), the Corporation 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
proportion to the relative benefits received by the Corporation and
all officers, directors or employees of the Corporation other than
Indemnitee who are jointly liable with him (or would be if joined
in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, from the transaction from which such
action, suit or proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Corporation and all
officers, directors or employees of the Corporation other than
Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events that
resulted in such Expenses, judgments, fines or settlement amounts,
as well as any other equitable considerations which the law may
require to be considered. The relative fault of the Corporation and
all officers, directors or employees of the Corporation other than
Indemnitee who are jointly liable with him (or would be if joined
in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to,
among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary, and the
degree to which their conduct is active or passive.
(iii) The
Corporation hereby agrees to fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by
officers, directors or employees of the Corporation who may be
jointly liable with Indemnitee.
Section 5. Advancement of Expenses and Costs . If Indemnitee is
made or threatened to be made a party to a Proceeding, Indemnitee
is entitled, upon written request to the Corporation, to payment or
reimbursement by the Corporation, within twenty (20) days of
receipt of the request of all reasonable Expenses, including,
without limitation, attorneys’ fees and disbursements,
incurred by Indemnitee, whether prior to or after the final
disposition of the Proceeding. Such request shall evidence in
reasonable detail 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
|
