Exhibit
10.3
INDEMNIFICATION
AGREEMENT
(Director
and Officer)
This
Indemnification Agreement (
Agreement
) is made as of June 15, 2007 by
and between Arena Pharmaceuticals, Inc., a Delaware corporation (the
Company
),
and
(
Indemnitee
).
RECITALS
WHEREAS,
Indemnitee is currently serving as a director and an officer of the Company;
WHEREAS, Article V
of the Fifth Amended and Restated Certificate of Incorporation of the Company
(the
Certificate of Incorporation
) and Article IV of the Amended and
Restated Bylaws of the Company (the
Bylaws
), each as currently in
effect, require the Company under certain circumstances to indemnify and
advance expenses to its directors and officers to the fullest extent permitted
by the Delaware General Corporation Law (the DGCL) and Indemnitee has been
serving and continues to serve as a director and an officer of the Company in
part in reliance on such provisions;
WHEREAS, in
recognition of Indemnitees need for substantial protection against personal liability
in order to promote Indemnitees continued service to the Company in an
effective manner, Indemnitees reliance on the aforesaid Certificate of
Incorporation and Bylaw provisions, and, in part, to provide Indemnitee with
specific contractual assurance that the protection provided by the Certificate
of Incorporation and Bylaws will be available to Indemnitee (regardless of,
among other things, any amendment to or revocation of such Certificate of
Incorporation and Bylaws or any change in the composition of the Board of
Directors of the Company (the
Board
) or any Change in Control (as
defined below)), the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to, Indemnitee to the fullest
extent (whether partial or complete) permitted by law, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Companys directors and officers liability insurance policies; and
WHEREAS, the Board
has determined that (i) it is essential for the Company to retain and
attract highly qualified individuals to serve as directors and executive
officers; (ii) it is essential to the best interests of the Companys
stockholders that the Company act to assure its directors and executive officers
that there will be increased certainty of such protection in the future; and
(iii) it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify and to advance Expenses (as
defined below) on behalf of its directors and executive officers to the fullest
extent permitted by applicable law as provided in this Agreement so that they
will continue to act in their capacities as directors and/or executive officers
of the Company (and the Company can attract new directors and executive
officers) free from undue concern that they will not be so indemnified;
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:
Section 1.
Definitions.
As used in this Agreement:
(a)
A
Change in Control
shall be deemed
to occur upon the earliest to occur after the date of this Agreement of any of
the following events:
i.
Acquisition of Stock by
Third Party
. Any person or group of persons acting in
concert (excluding Company employee benefit plans) becoming the beneficial
owner of securities of the Company having at least 30% of the voting power of
the Companys then outstanding securities (unless the event causing the 30%
threshold to be crossed is an acquisition of voting common securities directly
from the Company);
ii.
Change in Board
.
Within any 24 month period, the persons who were directors immediately
before the beginning of such period (the Incumbent Directors) shall cease to
constitute at least a majority of the Board or the board of directors of a
successor to the Company. For this
purpose, any director who was not a director at the beginning of such period
shall be deemed to be an Incumbent Director if such director was elected to the
Board by, or on the recommendation of or with the approval of, at least
three-quarters of the directors who then qualified as Incumbent Directors (so
long as such director was not nominated by a person who has expressed an intent
to effect a Change in Control or engage in a proxy or other control contest);
iii.
Corporate Transactions
. Any
merger or other business combination of the Company, any sale or lease of the
Companys assets or any combination of the foregoing transactions (the
Transactions
)
other than a Transaction immediately following which the stockholders of the
Company immediately prior to the Transaction own at least 60% of the voting
power, directly or indirectly, of (A) the surviving corporation in any such
merger or other business combination; (B) the purchaser or lessee of the
Companys assets; or (C) both the surviving corporation and the purchaser or
lessee in the event of any combination of Transactions;
iv.
Liquidation
. The
approval by the stockholders of the Company of a complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Companys assets; or
v.
Other Events
.
There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar schedule
or form) promulgated under the Securities Exchange Act of 1934, as amended (the
Exchange Act
), whether or not the Company is then subject to such reporting
requirement.
(b)
Disinterested Director
means a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(c)
Enterprise
means any corporation,
limited liability company, partnership, joint venture, trust plan, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary;
and, with respect to employee benefit plans, the references herein to
2
(i)
fines
shall include any excise tax assessed with respect to such plans, (ii)
serving
at the request of the Company
shall include any service which imposes
duties on, or involves service by, Indemnitee with respect to such plans, its
participants or beneficiaries, and (iv) a person who acted in good faith and in
a manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of such a plan shall be deemed to have acted in
a manner
not opposed to the best interests of the Company
as referred
to in this Agreement.
(d)
Expenses
shall include, without
limitation, all reasonable 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, being or preparing to be a witness in, or otherwise
participating in, a Proceeding.
Expenses
also shall include (i) Expenses incurred in connection with any appeal,
counterclaims and crossclaims resulting from or in connection with any
Proceeding, including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent, and (ii) for purposes of
Section 11(d)
only,
Expenses incurred by Indemnitee or on Indemnitees behalf associated with the
interpretation, enforcement or defense of Indemnitees rights under this
Agreement, by litigation or otherwise.
Expenses
,
however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.
(e)
Independent Counsel
means a law
firm, or a member of a law firm, that is experienced in matters of corporation
law and who neither at the time of its engagement as Independent Counsel is,
nor in the preceding five years has been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to matters
concerning Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), 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 Company or Indemnitee in an action to determine
Indemnitees rights under this Agreement.
The Company agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to
this Agreement or such Independent Counsels engagement pursuant hereto.
(f)
Proceeding
shall include, without
limitation, any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether
brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative, legislative, or investigative nature, including any
appeal therefrom, in which Indemnitee was, is or will be involved as a party,
potential party, non-party witness or otherwise by reason of the fact that Indemnitee
is or was a director or an officer of the Company, by reason of any action
taken or omitted to be taken by Indemnitee or on Indemnitees part, or alleged
to have been so taken or omitted to be taken, while acting as a director or an
officer 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, agent
or fiduciary of another Enterprise, in each case whether or not serving in
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such
capacity at the time any liability or Expense is incurred for which
indemnification, reimbursement, or advancement of Expenses can be provided
under this Agreement; except for any such Proceeding initiated by Indemnitee to
enforce Indemnitees rights under this Agreement (which shall be governed by
Section
11
of this Agreement).
(g)
to the fullest extent permitted by
applicable law
and
to the fullest extent not prohibited by applicable
law
shall include, but not be limited to:
i.
to the fullest extent permitted or not
prohibited, as the case may be, by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL; and
ii.
to the fullest extent authorized or permitted
or not prohibited, as the case may be, by any amendments to or replacements of
the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.
Section 2.
Indemnity in
Third-Party Proceedings.
The Company
shall indemnify Indemnitee in accordance with the provisions of this
Section 2
if Indemnitee is, or is threatened to be made, a party to or a participant in
any Proceeding, other than a Proceeding by or in the right of the Company to
procure a judgment in its favor.
Pursuant to this
Section 2
, Indemnitee shall be indemnified
to the fullest extent permitted by applicable law against all Expenses,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by Indemnitee or on Indemnitees behalf, in connection with such
Proceeding or any claim, issue or matter therein, 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, in the case of a criminal proceeding,
had no reasonable cause to believe that Indemnitees conduct was unlawful.
Section 3.
Indemnity in
Proceedings by or in the Right of the Company.
The Company shall indemnify Indemnitee in
accordance with the provisions of this
Section 3
if Indemnitee is,
or is threatened to be made, a party to or a participant in any Proceeding by
or in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 3
,
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitees behalf in connection with such Proceeding or any claim, issue or
matter therein, 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. No indemnification for Expenses
shall be made under this
Section 3
in respect of any Proceeding or
any claim, issue or matter therein as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the
extent that the Delaware Court of Chancery or any court in which the Proceeding
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 indemnification.
Section 4.
Indemnification
for Expenses of a Party Who is Wholly or Partly Successful
. Notwithstanding any other provisions of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is a party to (or a participant in)
4
and is successful, on the
merits or otherwise, in any Proceeding or in defense of any claim, issue or
matter therein, in whole or in part, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitees 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 Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitees behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this
Section and without limitation, the termination of any claim, issue or matter
in such a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or matter.
Section 5.
Additional
Indemnification
. Notwithstanding any
limitation in
Section 2
,
3
, or
4
, the Company shall
indemnify Indemnitee to the fullest extent permitted by applicable law if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to procure a judgment
in its favor) against all Expenses, judgments, fines and amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on Indemnitees
behalf, in connection with the Proceeding.
Section 6.
Exclusions.
Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a)
Other than as provided in
Section 4
,
for (i) an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act or similar provisions of state statutory
law or common law, or (ii) any reimbursement of the Company by Indemnitee
of any bonus or other incentive-based or equity-based compensation or of any
profits realized by Indemnitee from the sale of securities of the Company, as
required in each case under the Exchange Act (including any such reimbursements
that arise from an accounting restatement of the Company pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the
Sarbanes-Oxley
Act
), or the payment to the Company of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 306 of the
Sarbanes-Oxley Act); or
(b)
except as provided in
Section 11(d)
of this Agreement, in connection with any Proceeding (or any part of any
Proceeding) initiated by Indemnitee (whether on Indemnitees own behalf or by
or in the right of the Company to procure a judgment in its favor), including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the Company or its directors, officers, employees, agents, fiduciaries or other
indemnitees and not by way of defense, unless (i) the Board authorized the
Proceeding (or any part of any Proceeding) prior to its initiation or
(ii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company under applicable law.
Section 7.
Advances of
Expenses.
In accordance with the
pre-existing requirement of Article V of the Certificate of Incorporation, and
notwithstanding any provision of this Agreement to the contrary, the Company
shall advance, to the fullest extent not prohibited by applicable law, the
Expenses incurred by Indemnitee or on Indemnitees behalf in connection with
any Proceeding, and such advancement shall be made within 15 days after
the receipt by the
5
Company of a statement or
statements requesting such advances from time to time, whether prior to or
after final disposition of any Proceeding.
Advances shall (i) be unsecured and interest free; (ii) be made without
regard to Indemnitees ability to repay the Expenses and without regard to
Indemnitees ultimate entitlement to indemnification under the other provisions
of this Agreement; and (iii) include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. Indemnitee shall
qualify for advances upon the execution and delivery to the Company of this
Agreement, which shall constitute an unsecured undertaking by Indemnitee to
repay the advance if and to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company. The right to advances under this
Section 7
shall continue until final disposition of any Proceeding. This
Section 7
shall not apply to
any claim made by Indemnitee for which indemnity is excluded pursuant to
Section 6
.
Section 8.
Procedure for
Notification and Defense of Claim.
(a)
Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to seek
indemnification or advancement of Expenses hereunder as soon as reasonably
practicable following the receipt by Indemnitee of written notice thereof. The written notification to the Company shall
include a reasonable description of the nature of the Proceeding and the facts
underlying the Proceeding. To obtain
indemnification under this Agreement, Indemnitee shall submit to the Company 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
following the final disposition of such Proceeding. The omission by Indemnitee to notify the Company
hereunder will not relieve the Company from any liability which it may have to
Indemnitee hereunder or otherwise than under this Agreement, and any delay in
so notifying the Company shall not constitute a waiver by Indemnitee of any
rights under this Agreement. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested
indemnification.
(b)
The Company will be entitled to participate
in any Proceeding in connection with which Indemnitee seeks indemnification
hereunder at its own expense.
(c)
Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee under this Agreement for any amounts
paid in settlement of a Proceeding effected without the Companys written
consent, such consent not to be unreasonably withheld, delayed or conditioned
by the Company.
Section 9.
Procedure Upon
Application for Indemnification.
(a)
Upon written request by Indemnitee for
indemnification pursuant to
Section 8(a)
, a determination, if
required by applicable law, with respect to Indemnitees entitlement thereto
shall be made in the specific case:
(i) if a Change in Control shall have occurred, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered
to Indemnitee; or (ii) if a Change in Control shall not have occurred,
(A) by a majority
6
vote
of the Disinterested Directors, even though less than a quorum of the Board,
(B) by a majority vote of a committee of Disinterested Directors
designated by a majority vote of the Disinterested Directors, even though less
than a quorum of the Board, (C) if there are no Disinterested Directors
or, if a majority of the Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered
to Indemnitee, or (D) if so directed by the Board, by the stockholders of
the Company; and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after
such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination with
respect to Indemnitees entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to make such determination.
Any Expenses incurred by Indemnitee or on Indemnitees behalf in so
cooperating with the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as to Indemnitees
entitlement to indemnification) and the Company shall indemnify and hold
Indemnitee harmless therefrom.
(b)
In the event the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to
Section 9(a)
,
the Independent Counsel shall be selected as provided in this
Section 9(b)
. If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Board, and the
Company shall give written notice to Indemnitee advising Indemnitee of the
identity of the Independent Counsel so selected. If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board, in which event the
preceding sentence shall apply), and Indemnitee shall give written notice to
the Company advising it of the identity of the Independent Counsel so
selected. In either event, Indemnitee or
the Company, as the case may be, may, within 10 days after such written
notice of selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such selection;
provided
,
however
, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of Independent
Counsel as defined in
Section 1(e)
, and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit. If, within 20 days after the later of
submission by Indemnitee of a written request for indemnification pursuant to
Section 8(a)
and the final disposition of the Proceeding, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee may
petition a court of competent jurisdiction for resolution of any objection
which shall have been made by the Company or Indemnitee to the others
selection of Independent Counsel and/or for the appointment as Independent Counsel
of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under
Section 9(a)
. Upon the due commencement of any judicial
proceeding or arbitration pursuant to
Section 11(a)
, Independent
Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then
prevailing).
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Section 10.
Presumptions and
Effect of Certain Proceedings.
(a)
In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall, to the fullest extent not prohibited by applicable
law, presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with
Section 8(a)
, and the Company shall, to the fullest
extent not prohibited by applicable law, have the burden of proof to overcome
that presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption. Neither the failure of the Company (including
by its Disinterested Directors or any committee thereof, by its stockholders or
by Independent Counsel) to have made a determination prior to the commencement
of any action pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Company (including by its Disinterested
Directors or any committee thereof or by Independent Counsel) that Indemnitee
has not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that Indemnitee has not met the applicable standard of
conduct.
(b)
Subject to
Section 11(e)
, if the
person, persons or entity empowered or selected under
Section 9
to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall,
to the fullest extent not prohibited by applicable law, be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitees statement, in light of the
circumstances under which such statement is made, not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law as determined by a court of competent
jurisdiction;
provided
,
however
, that such 60-day period may be
extended for a reasonable time, not to exceed an additional 30 days, if
the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information relating
thereto;
provided
,
further
, that the foregoing provisions of this
Section 10(b)
shall not apply if the determination of entitlement
to indemnification is to be made by (x) the stockholders pursuant to
Section 9(a)
and if (A) within 15 days after receipt by the Company of the request
for such determination the Board has resolved to submit such determination to
the stockholders for their consideration at an annual meeting thereof to be
held within 75 days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within
15 days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within 60 days after having been so
called and such determination is made thereat, or (y) Independent Counsel
pursuant to
Section 9(a)
.
(c)
The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction,
or upon a plea of
nolo
contendere
or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or 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
8
best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that Indemnitees conduct was unlawful.
(d)
For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitees
action is based on the records or books of account of the Company, including
financial statements, or on information supplied to Indemnitee by the officers
of the Company in the course of their duties, or on the advice of legal counsel
for the Company or on information or records given or reports made to the
Company by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company. The provisions of this
Section 10(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement. For purposes of this
Section 10(d)
,
the term Company shall include any other Enterprise if Indemnitee is serving
such Enterprise as a director, officer, employee, agent or fiduciary at the
request of the Company.
(e)
The knowledge and/or actions, or failure to
act, of any director, officer, employee, agent or fiduciary of the Company or
of any other Enterprise which Indemnitee serves as a director, officer,
employee, agent or fiduciary at the request of the Company shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
Section 11.
Remedies of
Indemnitee.
(a)
Subject to
Section 11(e)
, in the
event that (i) a determination is made pursuant to
Section 9
that Indemnitee is not entitled to indemnification under this Agreement,
(ii) advancement of Expenses is not timely made pursuant to
Section 7
,
(iii) no determination of entitlement to indemnification shall have been
made pursuant to
Section 9(a)
within 90 days after receipt by
the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to
Section 4
or the last
sentence of
Section 9(a)
within 10 days after receipt by the
Company of a written request therefor, (v) payment of indemnification
pursuant to
Section 2
,
3
or
5
is not made within
10 days after a determination has been made that Indemnitee is entitled to
indemnification, or (vi) the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable,
or institutes any litigation or other action or proceeding designed to deny, or
to recover from, Indemnitee the benefits provided or intended to be provided to
Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a
court of competent jurisdiction of Indemnitees entitlement to such
indemnification or advancement of Expenses.
Alternatively, Indemnitee, at Indemnitees option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding
seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this
Section 11(a)
. The Company shall not oppose Indemnitees
right to seek any such adjudication or award in arbitration.
(b)
In the event that a determination shall have
been made pursuant to
Section 9(a)
that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced pursuant
to this
Section 11
shall be conducted in all respects as a
de
novo
trial, or arbitration, on the merits and Indemnitee shall not be
prejudiced by reason of that
9
adverse
determination. In any judicial
proceeding or arbitration commenced pursuant to this
Section 11
,
the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c)
If a determination shall have been made
pursuant to
Section 9(a)
that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this
Section 11
,
absent (i) a misstatement by Indemnitee of a material fact, or an omission
of a material fact necessary to make Indemnitees statement, in the light of
the circumstances under which such statement is made, not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law as determined by a
court of competent jurisdiction.
(d)
The Company shall, to the fullest extent not
prohibited by applicable law, be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this
Section 11
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement. It is the intent of the Company that
Indemnitee not be required to incur Expenses associated with the
interpretation, enforcement or defense of Indemnitees rights under this
Agreement by litigation or otherwise because such Expenses would substantially
detract from the benefits intended to be extended to Indemnitee hereunder. The Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall (within
10 days after receipt by the Company of a written request therefor)
advance, to the fullest extent not prohibited by applicable law, such Expenses
to Indemnitee, which are incurred by Indemnitee or on Indemnitees behalf in
connection with any action brought by Indemnitee for indemnification or
advancement of Expenses from the Company under this Agreement or under any
directors and officers liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of Expenses or insurance
recovery, as the case may be.
(e)
Notwithstanding anything in this Agreement to
the contrary, no determination as to entitlement to indemnification under this
Agreement shall be required to be made prior to the final disposition of the
related Proceeding.
Section 12.
Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(a)
The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or restrict any
right of Indemnitee under this Agreement in respect of any action taken or
omitted by Indemnitee prior to such amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Certificate
of Incorporation, the Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No
10
right
or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.
(b)
To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the Company or of any other
Enterprise which Indemnitee serves as a director, officer, employee, agent or
fiduciary at the request of the Company, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for Indemnitee under such policy or policies. If, at the time of the receipt of a notice of
a claim pursuant to the terms hereof, the Company has directors and officers
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
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(c)
In the event of payment of indemnification to
Indemnitee under this Agreement, the Company shall be subrogated to the extent
of such payment to any right of recovery Indemnitee may have and Indemnitee, as
a condition of receiving such indemnification from the Company, shall execute
all documents and do all things that the Company may deem necessary or
desirable to perfect such right of recovery, including the execution of such
documents necessary to enable the Company effectively to enforce such recovery.
(d)
The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder (or
for which advancement of Expenses is provided hereunder) if and to the extent
that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise, including from any other Enterprise
which Indemnitee was serving as a director, officer, employee, agent or
fiduciary at the request of the Company.
Section 13.
Duration of
Agreement.
This Agreement shall
continue until and terminate upon the later of: (a) 10 years after
the latest date that Indemnitee shall have ceased to serve as a director or an
officer of the Company or as a director, officer, employee, agent or fiduciary
of any other Enterprise at the request of the Company or (b) one year
after the final termination of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 11
relating thereto. This Agreement shall
be binding upon the Company and its successors and assigns and shall inure to
the benefit of Indemnitee and Indemnitees heirs, executors and administrators.
Section 14.
Severability.
If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid,
11
illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain
enforceable to the fullest extent permitted by applicable law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
Section 15.
Enforcement.
(a)
The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
it hereby in order to induce Indemnitee to serve as a director and an officer
of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving as a director and an officer of the Company.
(b)
This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof;
provided
,
however
, that this Agreement is a supplement to and in furtherance of
the Certificate of Incorporation, the Bylaws and applicable law, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
Section 16.
Modification and
Waiver.
No supplement, modification,
waiver, cancellation or amendment of this Agreement or any provision hereof
shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
of this Agreement nor shall any waiver constitute a continuing waiver.
Section 17.
Notice by
Indemnitee.
Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses hereunder. The
failure of Indemnitee to so notify the Company shall not relieve the Company of
any obligation which it may have to Indemnitee under this Agreement or
otherwise.
Section 18.
Notices.
All notices required
hereunder shall be in writing and be delivered personally, sent by
internationally recognized express courier service (e.g., FedEx), transmitted
via facsimile, or sent via registered or certified mail (postage prepaid)
requiring return receipt, and shall be deemed to have been validly served,
given or delivered: (i) date of
delivery, if sent by personal delivery; (ii) two days after date of deposit, if
sent by express courier service; (iii) date of transmission, if faxed with
confirmatory printout of transmission; or (iv) one week after date of mailing,
if sent by mail. Notices shall be
addressed as provided below or to such other addressee as either party may in
the future designate by written notice to the other in accordance with the
terms hereof:
12
i.
If to Indemnitee, at the address indicated on
the signature page of this Agreement, or such other address as Indemnitee shall
provide to the Company.
ii.
If to the Company to:
Arena Pharmaceuticals,
Inc.
6166 Nancy Ridge Drive
San Diego,
California 92121
Attention: General Counsel
Facsimile:
858.677.0065
or to any other address
as may have been furnished to Indemnitee by the Company.
Section 19.
Contribution.
To the fullest extent permitted under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee
or on Indemnitees behalf, whether for judgments, fines, penalties, excise
taxes, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of the related Proceeding in order to reflect (a) the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding and (b) the
relative fault of the Company (and its directors, officers, employees, agents
and fiduciaries) and Indemnitee in connection with such event(s) and/or
transaction(s).
Section 20.
Applicable Law.
This Agreement and the legal relations among
the parties hereunder shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to its
conflict of laws rules.
Section 21.
Identical
Counterparts.
This Agreement may be
executed in one or more counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute one and the
same Agreement.
Section 22.
Headings.
The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
13