Exhibit 10.36
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of __________ __, 1997
between Scriptgen Pharmaceuticals, Inc., a Delaware corporation ("Scriptgen"),
and _______________________ (collectively with such person's heirs, executors,
administrators and other personal representatives, the "Indemnitee"), an officer
or director of Scriptgen.
WHEREAS, the Board of Directors has concluded that Scriptgen's
officers, directors, employees and agents should be provided with reasonable
and appropriate protection against inordinate risks in order to insure that the
most capable persons will be attracted to such positions; and, therefore, has
determined to contractually obligate itself to indemnify in a reasonable and
adequate manner its officers and directors, and to assume for itself liability
for expenses and damages in connection with claims lodged against such persons
as a result of their service to Scriptgen;
WHEREAS, applicable law empowers corporations to indemnify a person
who serves as a director, officer, employee or agent of a corporation or a
person who serves at the request of a corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise; and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm Scriptgen's indemnification obligations to Indemnitee and, in addition,
to set forth the agreements contained herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. INDEMNIFICATION. Indemnitee shall be indemnified and held
harmless by Scriptgen against any judgments, penalties, fines, amounts paid in
settlement and Expenses (as hereinafter defined) incurred in connection with any
actual or threatened Proceeding (as hereinafter defined) to the fullest extent
permitted by Scriptgen's Certificate of Incorporation (the "Certificate"),
by-laws ("By-Laws") and the General Corporation Law of the State of Delaware
("Delaware Law") as in effect on the date hereof and to such greater extent as
Delaware Law may hereafter from time to time permit. In addition, Scriptgen
agrees to advance to Indemnitee Expenses incurred in connection with the
foregoing. "Proceeding" includes, without limitation, any action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or contemplated
proceeding, whether civil, criminal, administrative or investigative, whether by
a third party, by
or in the right of Scriptgen or by Indemnitee to enforce any rights under this
Agreement or otherwise against Scriptgen or its affiliates.
2. INTERIM EXPENSES. Expenses (including attorneys' fees) incurred
by Indemnitee in defending any civil, criminal, administrative, or investigative
action, suit or proceeding for which Indemnitee may be entitled to
indemnification hereunder shall be paid by Scriptgen in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of Indemnitee to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by Scriptgen
hereunder. "Expenses" means all attorneys' fees and expenses, retainers, court
costs, transcript costs, duplicating costs, fees of experts, fees of witnesses,
travel expenses, printing and binding costs, telephone charges, postage and
delivery fees, service fees, all other costs and 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, and per diem payments to Indemnitee in an amount equal to the last
annual salary payable under any employment agreement between the Company and
Indemnitee divided by 365 for each day spent by Indemnitee in connection with
prosecuting, defending, preparing to prosecute or defend, investigating or being
or preparing to be a witness in a Proceeding.
3. EXCEPTIONS TO INDEMNIFICATIONS. Notwithstanding the foregoing,
no indemnity pursuant to Sections 1 or 2 shall be paid by Scriptgen:
(a) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of Scriptgen pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged
to have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct;
(c) on account of Indemnitee's conduct which is finally adjudged
to have constituted a breach of Indemnitee's duty of loyalty to Scriptgen or
resulted in any personal profit or advantage to which Indemnitee was not legally
entitled;
(d) for which payment is actually made to Indemnitee under a
valid and collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any excess beyond
payment under such insurance, clause, bylaw or agreements;
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(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful; or
(f) in connection with any proceeding (or part thereof)
initiated by Indemnitee, or any proceeding by Indemnitee against Scriptgen or
its directors, officers, employees or other indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of Scriptgen, (iii) such indemnification is
provided by Scriptgen, in its sole discretion, pursuant to the powers vested in
Scriptgen under applicable law, or (iv) the proceeding is initiated pursuant to
Section 4 hereof.
4. FAILURE TO INDEMNIFY. (a) If a claim under this Agreement,
under any statute, or under any provision of the Certificate or By-Laws
providing for indemnification, is not paid in full by Scriptgen within 45 days
after a written request for payment thereof has first been received by
Scriptgen, Indemnitee may, but need not, at any time thereafter bring an action
against Scriptgen to recover the unpaid amount of the claim and, if successful
in whole or in part, Indemnitee shall also be entitled to be paid for
Indemnitee's reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with successfully establishing the right to
indemnification, in whole or in part, in any such action shall also be
indemnified by Scriptgen.
(b) 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 the General
Corporation Law of the State of Delaware for Scriptgen to indemnify Indemnitee
for the amount claimed, but the burden of proving such defense shall be on
Scriptgen and Indemnitee shall be entitled to receive interim payments of
Interim Expenses pursuant to Paragraph 2 unless and until such defense may be
finally adjudicated by court order or judgment from which no further right of
appeal exists.
5. CERTAIN AGREEMENTS OF INDEMNITEE.
(i) Indemnitee agrees to do all things reasonably requested by the
Board of Directors of Scriptgen to enable Scriptgen to coordinate Indemnitee's
defense with, if applicable, Scriptgen's defense, provided, however, that
Indemnitee shall not be required to take any action that would in any way
prejudice his or her defense or waive any defense or position available to him
or her in connection with any action;
(ii) Indemnitee agrees to do all things reasonably requested by the
Board of Directors of Scriptgen to subrogate to Scriptgen any rights of recovery
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(including rights to insurance or indemnification from persons other than
Scriptgen) which Indemnitee may have with respect to any action;
(iii) Indemnitee agrees to be represented in any action by a law firm
mutually acceptable to Scriptgen and Indemnitee; and
(iv) Indemnitee agrees to cooperate with Scriptgen and its counsel and
maintain any confidences revealed to him or her by Scriptgen in connection with
Scriptgen's defense of any action. Scriptgen agrees to cooperate with
Indemnitee and his or her counsel and maintain any confidences revealed to it by
Indemnitee in connection with Indemnitee's defense of any action.
6. SUCCESSORS. This Agreement establishes contract rights which
shall be binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto.
7. CONTRACT RIGHTS NOT EXCLUSIVE. The contract rights conferred by
this Agreement shall be in addition to, but not exclusive of, any other right
which Indemnitee may have or may hereafter acquire under any statute, provision
of the Certificate or By-Laws, agreement, vote of shareholders or disinterested
directors or otherwise.
8. INDEMNITEE'S OBLIGATIONS. Indemnitee shall advise Scriptgen in
writing of the institution of any investigation, claim, action, suit, or
proceeding which is or may be subject to this Agreement and generally keep
Scriptgen informed of, and consult with Scriptgen with respect to, the status of
any such investigation, claim action, suit or proceeding.
9. SEVERABILITY. Should any provision or paragraph of this
Agreement, or any clause hereof, be held to be invalid, illegal or
unenforceable, in whole or in part, the remaining provisions, paragraphs and
clauses of this Agreement shall remain fully enforceable and binding on the
parties.
10. CHOICE OF LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware.
11. CONTINUATION OF INDEMNIFICATION. The indemnification under this
Agreement shall continue as to Indemnitee even though he or she may have ceased
to be a director, officer, employee and/or agent of Scriptgen and shall inure to
the benefit of the heirs and personal representatives of Indemnitee. Scriptgen
acknowledges that, in providing services to Scriptgen, Indemnitee is relying on
this Agreement. Accordingly, Scriptgen agrees that its obligations hereunder
will survive (i) any actual
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or purported termination of this Agreement by Scriptgen or its successors or
assigns whether by operation of law or otherwise, (ii) any change in Scriptgen's
certificate of incorporation or by-laws and (iii) termination of the
Indemnitee's services to Scriptgen (whether such services were terminated by
Scriptgen or the Indemnitee), whether or not a claim is made or an action or
Proceeding is threatened or commenced before or after the actual or purported
termination of this Agreement, change in the certificate of incorporation or
by-laws or termination of Indemnitee's services.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and signed as of the day and year first above written.
_____________________________________________
SCRIPTGEN PHARMACEUTICALS, INC.
By:__________________________________________
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