TRUBION PHARMACEUTICALS,
INC.
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“ Agreement ”) is
made as of this ___day of ___, by and between Trubion
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; Contribution . The Company shall
indemnify and hold harmless Indemnitee to the fullest extent
permitted by applicable law. In furtherance of the foregoing, and
without limiting the generality thereof:
(a)
Third-Party Proceedings . The Company shall indemnify and
hold harmless 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 and hold harmless 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 and held harmless against expenses (including
attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection therewith.
(d)
Contribution . Whether or not the indemnification provided
in this Section 1 is available, in respect of any threatened,
pending or completed action, suit or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company 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 Company hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any settlement of any
action, suit or proceeding in which the Company 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.
2.
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. 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.
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(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,
provided that no delay in providing such notice shall lessen
Indemnitee’s entitlement to indemnification hereunder except
to the extent that such delay actually and materially prejudices
the Company’s ability to defend such claim. 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 2 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 13 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 2(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 it
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 its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.
The burden of establishing that Indemnitee is not entitled to
indemnification pursuant to applicable law and this Agreement shall
be on the Company.
(d)
Notice to Insurers . If, at the time of the receipt of a
notice of a claim pursuant to Section 2(b) hereof, the Company has
director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of
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the Indemnitee,
all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(e)
Selection of Counsel . In the event the Company shall be
obligated under Section 2(a) hereof to pay the expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall
be entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, upon the delivery to Indemnitee of written
notice of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the re
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