INDEMNIFICATION AGREEMENT between [name] as the Officer and Alvotech S.A. as the Company
TABLE OF CONTENTS
| 1 |
DEFINITIONS AND INTERPRETATION |
3 | ||||
| 1.1 |
Definitions |
3 | ||||
| 1.2 |
Interpretation |
6 | ||||
| 2 |
INDEMNIFICATION AND INSURANCE |
7 | ||||
| 2.1 |
Entitlement to indemnification |
7 | ||||
| 2.2 |
Advancements |
8 | ||||
| 2.3 |
Limitations |
8 | ||||
| 2.4 |
Determination of entitlement to indemnification and advancements |
9 | ||||
| 2.5 |
Proceedings |
10 | ||||
| 2.6 |
D&O Insurance |
10 | ||||
| 3 |
MISCELLANEOUS PROVISIONS |
11 | ||||
| 3.1 |
Confidentiality and disclosure |
11 | ||||
| 3.2 |
Notices |
11 | ||||
| 3.3 |
Entire agreement |
11 | ||||
| 3.4 |
No implied waiver |
12 | ||||
| 3.5 |
Amendment |
12 | ||||
| 3.6 |
Invalidity |
12 | ||||
| 3.7 |
No rescission or nullification |
12 | ||||
| 3.8 |
No transfer, assignment or encumbrance |
12 | ||||
| 3.9 |
Term and termination |
13 | ||||
| 4 |
GOVERNING LAW AND JURISDICTION |
13 | ||||
| 4.1 |
Governing law |
13 | ||||
| 4.2 |
Jurisdiction |
13 | ||||
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THIS AGREEMENT IS MADE ON [DATE] BETWEEN
| 1. | Mr[s]. [name], born in [place] on [date] (the “Officer”). |
| 2. | Alvotech S.A.., a public company with limited liability, having its registered office at ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and registred with the Luxembourg Trade and Companies’ Register under number: B258884 (the “Company”). |
WHEREAS
| A. | The Officer has been appointed as Executive Chairman. |
| B. | The Parties now wish to enter into this Agreement in order to lay down the terms applicable to the indemnification arrangements between the Officer and the Company. |
NOW ▇▇▇▇▇▇ AGREE AS FOLLOWS
| 1 | DEFINITIONS AND INTERPRETATION |
| 1.1 | Definitions |
| 1.1.1 | In this Agreement the following definitions shall apply: |
| Agreement | This indemnification agreement. | |
| Article | An article of this Agreement. | |
| Board | The Company’s board of directors. | |
| Confidential Information | Any information relating to the Company, its Subsidiaries and/or their respective businesses, affairs, products, R&D, financials, projections, directors, officers and employees, received by the Officer at any time, by any means (including through discussions with any director, officer, employee or advisor of the Company or any of its Subsidiaries), except for information: | |
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| a. which is in the public domain, other than as a result of a breach by the Officer (or by any party to whom information is disclosed by the Officer as permitted under this Agreement) of the obligations imposed by this Agreement or any other legal, contractual or fiduciary duty of confidentiality; or
b. of which the Officer is able to demonstrate that it has lawfully become available to the Officer on a non-confidential basis from a source which was not prohibited from disclosing such information under any legal, contractual or fiduciary duty of confidentiality. | ||
| Damages | Any and all losses, liabilities, judgements, fines, penalties, costs, damages and Expenses and any other amounts reasonably incurred by the Officer in connection with any matter subject to indemnification hereunder. | |
| D&O Insurance | Directors and officers liability insurance. | |
| Director | A member of the Board. | |
| Disinterested Director | Any Non-Executive Director who is not, and has not been, involved in a Proceeding in respect of which the Officer’s entitlement to indemnification and/or advancements should be determined pursuant to Article 2.4.1 under a. | |
| Expenses | 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, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any | |
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| Proceeding and any federal, state, local or foreign taxes imposed on the Officer as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by the Officer or the amount of judgments or fines against the Officer. | ||
| Executive Chairman | The executive chairman of the Board. | |
| Independent Counsel | An attorney or a firm of attorneys which:
a. is experienced in matters of corporate law in the appropriate jurisdiction(s);
b. during a period of one year prior to being requested to determine the Officer’s entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b., has not represented any party involved in a Proceeding in a manner which is material to either Party; and
c. under the applicable standards of professional conduct then prevailing, would not have a conflict of interests in representing either Party in determining the Officer’s entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b. | |
| Non-Executive Director | A non-executive Director. | |
| Party | A party to this Agreement. | |
| Proceeding | Any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative, investigative or other nature, formal or informal, in which the Officer is, or becomes, involved. | |
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| Stock Exchange | Any of the following (including, for the avoidance of doubt, the Nasdaq Stock Market):
a. a regulated market or multilateral trading facility as defined in Article 1, 11 of the Luxembourg law of 11 January 2008 on transparency requirements for issuers, as amended; or
b. a system comparable with a regulated market or multilateral trading facility as referred to under a. above, operating in a state which is not a Member State of the European Union or the European Economic Area. | |
| Subsidiary | An entity under the Company’s control within the meaning of Article 1711-1 of the Luxembourg law of August 10, 1915 on commercial companies, as amended. | |
| 1.2 | Interpretation |
| 1.2.1 | References to statutory provisions are to those provisions as they are in force from time to time. |
| 1.2.2 | Terms that are defined in the singular have a corresponding meaning in the plural. |
| 1.2.3 | No provision of this Agreement shall be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision. |
| 1.2.4 | Although this Agreement has been drafted in the English language, this Agreement pertains to Luxembourg legal concepts. Any consequence of the use of English words and expressions in this Agreement under any law other than Luxembourg law shall be disregarded. |
| 1.2.5 | The word “including” is used to indicate that the matters listed are not a complete enumeration of all matters covered. |
| 1.2.6 | The titles and headings in this Agreement are for construction purposes as well as for reference. No Party may derive any rights from such titles and headings. |
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| 2 | INDEMNIFICATION AND INSURANCE |
| 2.1 | Entitlement to indemnification |
| 2.1.1 | The Company shall indemnify and hold harmless the Officer and hold the Officer harmless against: |
| a. | any Damages incurred by the Officer; and |
| b. | any Expense reasonably paid or incurred by the Officer in connection with any Proceeding, |
| c. | any claims of contribution which may be brought by officers, directors or employees of the Company, other than the Officer, who may be jointly liable with the Officer. |
in each case to the extent this relates to the Officer’s current (or former) position as Non-Executive Director of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company (“Corporate Status”) and to the extent permitted by applicable law.
| 2.1.2 | The right to indemnification conferred in Article 2.1.1 shall continue as to the Officer who has ceased to hold office as Executive Director and shall inure to the benefit of the Officer’s heirs, executors and administrators, subject always to Article 3.9. |
| 2.1.3 | Notwithstanding any other provision of this Agreement, to the extent that the Officer is, by reason of their Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which the Officer is not a party, they shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. |
| 2.1.4 | The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which the Officer may at any time be entitled under applicable law, the governing documents of the Company, any agreement, a vote of stockholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of the Officer under this Agreement in respect of any action taken or omitted by such the Officer in their Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the law, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the governing documents of the Company and this Agreement, it is the intent of the parties hereto that Officer shall enjoy by this Agreement the greater benefits so afforded by such change. No 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. |
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| 2.2 | Advancements |
| 2.2.1 | The Company shall promptly advance all reasonable and necessary expenses incurred by the Officer in connection with any Proceeding to the extent that the Company reasonably believes that the Officer is entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1 in connection with such Proceeding, subject to the Officer submitting an itemised advance request to the Company. |
| 2.2.2 | To the extent that the Company has provided advancements pursuant to Article 2.2.1 in connection with a Proceeding in respect of which the Officer is not entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1, such advancements shall promptly be reimbursed by the Officer. |
| 2.3 | Limitations |
| 2.3.1 | No indemnification shall be given to the Officer: |
| a. | if a competent court or arbitral tribunal has established that the acts or omissions of the Officer that led to the Damages or Proceeding are of an unlawful nature (including acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to the Officer) and the Officer does not have, or no longer has, the possibility to appeal such decision; |
| b. | to the extent that the Officer’s Damages are covered under insurance (including any applicable D&O Insurance) and the relevant insurer has settled, or has provided reimbursement for, these Damages (or has irrevocably undertaken to do so); |
| c. | in relation to Proceedings brought by the Officer against the Company, except for Proceedings (i) authorized by the Board or (ii) brought to enforce indemnification to which the Officer is entitled pursuant to this Agreement, the Company’s articles of association or any D&O Insurance taken out by the Company for the benefit of the Officer; or |
| 2.3.2 | The Officer shall have the sole right and obligation to control the defense or conduct of any claim or Proceeding with respect to the Officer. The Company shall not, without the prior written consent of the Officer, which may be provided or withheld in the Officer’s sole discretion, effect any settlement of any Proceeding against the Officer or which could have been brought against the Officer or which potentially or actually imposes any cost, liability, exposure or burden on the Officer unless such settlement solely involves the payment of money or |
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| performance of any obligation by persons other than the Officer and includes an unconditional release of the Officer from all liability on any matters that are the subject of such Proceeding and an acknowledgment that the Officer denies all wrongdoing in connection with such matters. The Company shall not be obligated to indemnify the Officer against amounts paid in settlement of a Proceeding against the Officer if such settlement is effected by the Officer without the Company’s prior written consent, which consent shall not be unreasonably withheld. |
| 2.4 | Determination of entitlement to indemnification and advancements |
| 2.4.1 | If the Officer wishes to claim indemnification and/or advancements pursuant to Articles 2.1 and 2.2, the Officer shall submit a request to that effect to the Company. Upon receipt of such request, the Officer’s entitlement to indemnification and/or advancements pursuant to Articles 2.1 and 2.2 shall be determined by any of the following: |
| a. | so long as there are Disinterested Directors, either by majority vote of all Disinterested Directors or by majority vote of a committee composed exclusively of Disinterested Directors, provided that such committee is established by majority vote of all Disinterested Directors; or |
| b. | if there are no Disinterested Directors, Independent Counsel in a written opinion delivered to each Party. |
| 2.4.2 | If the Company decides to request Independent Counsel to make the determination referred to in Article 2.4.1, the Company shall notify the Officer of the identity of the Independent Counsel selected by it. The Officer may, within one week, notify the Company of its objection to the Independent Counsel selected by the Company, but only on the grounds that the relevant attorney or firm of attorneys does not meet the criteria of the definition of “Independent Counsel”. In case of such objection being timely made and deemed well-founded by the Company, the Company shall select a different Independent Counsel and the previous two sentences apply mutatis mutandis in respect of such selection. The Company shall pay all fees and other Expenses associated with the retention and services of Independent Counsel to make the determination referred to in Article 2.4.1. |
| 2.4.3 | The Company shall exert all reasonable efforts to cause any determination required under Article 2.4.1 to be made as promptly as practicable after the Officer has submitted its initial request for indemnification and/or advancements pursuant to Articles 2.1 and 2.2 and the Officer shall fully cooperate with the person(s) making such determination. |
| 2.4.4 | 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 the Officer to indemnification or create a presumption that the Officer did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Officer had reasonable cause to believe that his conduct was unlawful. |
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| 2.4.5 | Notwithstanding any other provision of this Agreement, to the extent that the Officer is, by reason of the Officer’s Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in defense of any Proceeding (including any Proceeding brought by or in the right of the Company), the Company shall indemnify the Officer with respect to, and hold the Officer harmless from and against, all Expenses incurred by the Officer or on behalf of the Officer in connection therewith. If the Officer is not wholly successful in defense of 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 the Officer against all Expenses incurred by the Officer or on behalf of the Officer in connection with each successfully resolved claim, issue or matter. For purposes of this Article 2.4.5, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, on substantive or procedural grounds, shall be deemed to be a successful result as to such claim, issue or matter. |
| 2.5 | Proceedings |
| 2.5.1 | The Officer shall promptly notify the Company upon receipt of any complaint, demand letter, writ of summons or other indication that a Proceeding is being threatened or is forthcoming. |
| 2.5.2 | The Officer shall allow the Company to participate in any Proceeding and to assume the defence thereof in such manner as the Company deems appropriate, with counsel selected by the Company and reasonably satisfactory to the Officer, provided that: |
| a. | the Company must conduct any such defence in good faith and in a diligent manner; and |
| b. | the Company shall not, without the Officer’s prior consent, allow or condone any judgment or award against the Officer nor enter into any settlement or compromise pursuant to which non-monetary obligations or penalties (including incarceration) would be imposed on the Officer and/or monetary obligations would be imposed on the Officer which would not be indemnified in full pursuant to Articles 2.1.1 and 2.3.1. |
| 2.6 | D&O Insurance |
| 2.6.1 | The Company shall take out and maintain adequate D&O Insurance for the benefit of the Officer for as long as the Officer serves as Executive Director, subject to the acceptance of the Officer under the conditions by the insurer concerned. |
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| 2.6.2 | The premiums payable for D&O Insurance covering the Officer as an insured shall be borne by the Company. |
| 3 | MISCELLANEOUS PROVISIONS |
| 3.1 | Notices |
| 3.1.1 | All notices given under this Agreement shall be given or made by electronic means of communication or in writing and, in the latter case, shall be sent by courier service or by registered mail (with a copy of such notice or request being sent in advance by electronic means of communication). |
| 3.1.2 | All notices given under this Agreement to a Party which are sent by courier or by registered mail shall be sent: |
| a. | if to the Officer, to the address as on file with the Company at that time; and |
| b. | if to the Company, to address as registered with the Luxembourg Trade and Company Register at that time, for the attention of the Board. |
| 3.1.3 | All notices given under this Agreement to a Party by electronic means of communication shall be sent: |
| a. | if to the Officer, to: [e-mail address] |
| b. | if to the Company, to: [e-mail address] |
| 3.2 | Entire agreement |
| 3.2.1 | This Agreement replaces and supersedes any existing indemnification agreement between the Parties, including any indemnification arrangements agreed between the Parties as part of a service, employment or other agreement. |
| 3.3 | No implied waiver |
| 3.3.1 | Nothing shall be construed as a waiver under this Agreement unless a document to that effect has been signed by the Parties or a notice to that effect has been given. |
| 3.3.2 | The failure of a Party to exercise or enforce any right under this Agreement shall not constitute a waiver of the right to exercise or enforce such right in the future. |
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| 3.4 | Amendment |
| 3.4.1 | No amendment to this Agreement shall have any force or effect unless it is in writing and signed by both Parties. |
| 3.5 | Invalidity |
| 3.5.1 | In the event that a provision of this Agreement is null and void or unenforceable (either in whole or in part): |
| a. | the remainder of this Agreement shall continue to be effective to the extent that, given the substance and purpose of this Agreement, such remainder is not inextricably related to the null and void or unenforceable provision; and |
| b. | the Parties shall make every effort to reach agreement on a new provision which differs as little as possible from the null and void or unenforceable provision, taking into account the substance and purpose of this Agreement. |
| 3.6 | No rescission or nullification |
| 3.6.1 | To the extent permitted by law, the Parties waive their rights to rescind or nullify or to demand the rescission, nullification or amendment of this Agreement, in whole or in part, on any grounds whatsoever. |
| 3.7 | No transfer, assignment or encumbrance |
| 3.7.1 | No Party may transfer, assign or encumber its contractual relationship, any of its rights or any of its obligations under this Agreement. |
| 3.8 | Term and termination |
| 3.8.1 | Subject to Article 3.9.3, this Agreement shall remain in full force for the duration of the Officer’s term of office as Executive Director and shall terminate, without prior notice being required, at the moment when the Officer ceases to be an Executive Director. |
| 3.8.2 | For purposes of Article 3.9.1, the Officer’s term of office shall not be considered to have expired or interrupted if the Officer is reappointed as Executive Director for consecutive terms. |
| 3.8.3 | In case of a termination of this Agreement, the Officer’s right to indemnification under Article 2 shall terminate at (and, exclusively for that purpose, the relevant provisions of this Agreement shall survive until) the later of the following moments: |
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| a. | the expiration of the statute of limitations applicable to any claim that could be asserted against the Officer with respect to which the Officer would be entitled to indemnification under this Agreement; |
| b. | ten years after the date that the Officer has ceased to serve as an Executive Director; or |
| c. | if, at the later of the dates referred to in paragraphs a. and b. above, there would be an actual or pending Proceeding in respect of which the Officer would be entitled to indemnification under this Agreement or there is an actual or pending Proceeding in connection with this Agreement, one year after the competent court or arbitral tribunal has finally adjudicated such Proceeding, without possibility for appeal. |
| 4 | GOVERNING LAW AND JURISDICTION |
| 4.1 | Governing law |
| 4.1.1 | This Agreement shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. |
| 4.2 | Jurisdiction |
| 4.2.1 | The Parties agree that any dispute in connection with this Agreement or any agreement resulting therefrom shall be submitted to the exclusive jurisdiction of the competent court in Luxembourg, the Grand Duchy of Luxembourg. |
(signature page follows)
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