CYTOKINETICS, INCORPORATED INDEMNIFICATION AGREEMENT
Exhibit 10.1
CYTOKINETICS, INCORPORATED
This Indemnification Agreement (“Agreement”) is made as of this ___day of ,
, by and between Cytokinetics, Incorporated, 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 sufficiency of which is hereby acknowledged, the Company and Indemnitee hereby agree
as follows:
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify 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, formal or
informal, 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, by reason of any action or inaction on the part of
Indemnitee while serving in Indemnitee’s capacity as a director, officer, employee or agent 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 Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding 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,
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officer, employee or agent of the Company, or any subsidiary of the Company, by reason of any
action or inaction on the part of Indemnitee while serving in Indemnitee’s capacity as a director,
officer, employee or agent 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 in each case to the extent actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of 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, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by
court order or judgment (for which no further right of appeal exists) to be liable to the Company
in the performance of Indemnitee’s duty 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 against expenses (including attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice),
without (i) the disposition being adverse to the Indemnitee, (ii) a final adjudication that the
Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by the Indemnitee,
(iv) a final adjudication that the Indemnitee did not act in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company, and (v) with
respect to any criminal proceeding, a final adjudication that the Indemnitee had reasonable cause
to believe his or her conduct was unlawful, the Indemnitee shall be considered for the purpose
hereof to have been wholly successful with respect thereto.
(d) The termination of any action, suit or proceeding referred to in Subsections (a) or (b) of
this Section 1, or of any claim, issue or matter therein, by settlement (with or without court
approval), 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 he or she reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action, suit or proceeding, create a presumption that Indemnitee
had reasonable cause to believe that his or her conduct was unlawful.
2. Expenses; Indemnification Procedure.
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 (but not amounts actually paid in
settlement of any such action, suit or proceeding). 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. As used herein, “Expenses”
shall mean: (i) all reasonable attorney’s 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
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otherwise participating in, an action, suit or proceeding, including on any appeal, any premium,
security for, and other costs relating to any costs bond, supersedes bond, or other appeal bond or
its equivalent; (ii) any expense, liability or loss arising out of or in connection with any
action, suite or proceeding subject to Section 1(a) or 1(b), including without limitation,
judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement; (iii)
any interest, assessments or other charges imposed thereon, any federal, state, local or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement; and
(iv) any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual
or deemed receipt of any payments under this Agreement. The advances to be made hereunder shall be
paid by the Company to Indemnitee within thirty (30) days following delivery of a written request
therefore by Indemnitee to the Company. The right to be indemnified or to receive advancement of
Expenses under this Agreement (i) is a contract right based upon good and valuable consideration,
pursuant to which Indemnitee may ▇▇▇, (ii) is and is intended to be retroactive and shall be
available as to events occurring prior to the date of this Agreement and (iii) shall continue after
any rescission or restrictive modification of this Agreement as to events occurring prior thereto.
The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this
Agreement which shall constitute an undertaking providing that the Indemnitee undertakes to the
fullest extent permitted by law to repay the advance (without interest) if and to the extent that
it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company. No other form of
undertaking shall be required other than the execution of this Agreement.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to his or her
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. 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 promptly, and in any event 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 12 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 but the burden of
proving such defense shall be on the
Company and 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. 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 its 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
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because Indemnitee has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Company (including it 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.
(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 the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. If Company is 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. Notwithstanding the foregoing, the Company
shall not be permitted to settle any action or claim on behalf of Indemnitee in any manner which
would impose any unindemnified liability or penalty on the Indemnitee or require any
acknowledgement of wrongdoing on the part of the Indemnitee without Indemnitee’s written consent,
which consent shall not be unreasonably withheld. The Company agrees that it will not, without the
prior written consent of the Indemnitee, settle, compromise or consent to the entry of any judgment
in any pending or threatened claim relating to the matters contemplated hereby (if the Indemnitee
is a party
thereto or has been threatened to be made or would reasonably be expected to be made a party
thereto) unless such settlement, compromise or consent includes an unconditional release of the
Indemnitee from all liability arising or that may arise out of such claim. The Indemnitee shall not
be liable for any settlement of any claim effected against the Indemnitee without Indemnitee’s
written consent. After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that (i) Indemnitee
shall have the right to employ his or her counsel in any such proceeding at Indemnitee’s expense;
and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest
between the
Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact,
have employed counsel to assume the defense of such proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company. The Company shall not be entitled,
without the consent
of the Indemnitee, to assume the defense of any claim brought by or in the right of the Company or
as to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in
clause (ii)(B) above.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby agrees to
indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this Agreement, the
Company’s Certificate of Incorporation, the Company’s Bylaws or by statute. In the event of any
change, after the date of this Agreement, in any applicable law, statute, or rule which expands the
right of a Delaware corporation to indemnify a member of its board of directors or an officer, such
changes shall be, ipso facto, within the purview of Indemnitee’s rights and Company’s obligations,
under this Agreement. In the event of any change in any applicable law, statute or rule which
narrows the right of a Delaware corporation to indemnify a member of its board of directors or an
officer, such changes, to the extent not
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otherwise required by such law, statute or rule to be applied to this Agreement shall have no
effect on this Agreement or the parties’ rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested Directors, the
General Corporation Law of the State of Delaware, or otherwise, both as to action in Indemnitee’s
official
capacity and as to action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though he or she may have ceased to serve in such
capacity at the time of any action,
suit or other covered proceeding.
(c) Contribution. The Company hereby agrees to fully indemnify and hold harmless Indemnitee
from any claims for contribution which may be brought by officers, directors or employees of the
Company (other than Indemnitee) who may be jointly liable with Indemnitee.
(d) Information Sharing. If the Indemnitee is the subject of or is implicated in any way
during an investigation, whether formal or informal, the Company shall share with Indemnitee any
information it has turned over to any third parties concerning the investigation.
4. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the expenses, judgments, fines or penalties
actually or reasonably incurred by him in the investigation, defense, appeal or settlement of any
civil or criminal action, suit or proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines
or penalties to which Indemnitee is entitled.
5. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge that
in certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company’s right under public policy to indemnify
Indemnitee.
6. Officer and Director Liability Insurance. The Company shall, from time to time, make the
good faith determination whether or not it is practicable for the Company to obtain and maintain a
policy or policies of insurance with reputable insurance companies providing the officers and
directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company’s performance of its
indemnification obligations under this Agreement. Among other considerations, the Company will
weigh the costs of obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance, Indemnitee shall be named as
an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company’s directors, if Indemnitee is a director; or of the
Company’s officers, if Indemnitee is not a director of the Company but is an officer.
Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the Company determines in
good faith that such insurance is not reasonably available, if the premium costs for such insurance
are disproportionate to the amount of coverage provided, if the coverage provided by such insurance
is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee is covered by
similar insurance maintained by a subsidiary or parent of the Company. If the Company determines
that it will eliminate or reduce the level of insurance coverage described herein applicable at any
time to Indemnitee,
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the Company shall provide Indemnitee with thirty (30) days prior written notice prior to
effectuating such elimination or reduction.
7. Severability. Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable law. The Company’s
inability, pursuant to court order, to perform its obligations under this Agreement shall not
constitute a breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section 7. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not
have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with
respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or enforce a right to
indemnification under
this Agreement or any other statute or law or otherwise as required under Section 145 of the
Delaware General Corporation Law, but such indemnification or advancement of expenses may be
provided by the Company in specific cases if the Board of Directors has approved the initiation or
bringing of such suit; or
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by the Indemnitee
with respect to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if
a court of competent jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) which have been actually paid directly to Indemnitee by an insurance carrier under a
policy of officers’ and directors’ liability insurance maintained by the Company.
(d) Claims under Section 16(b). To indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute,
however, notwithstanding anything to the contrary stated or implied in this Section 8(d),
indemnification pursuant to this Agreement relating to any action, suit or proceeding against
Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities
of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar
provisions of any federal, state or local laws shall not be prohibited if Indemnitee establishes in
any action, suit or proceeding that no recovery of such profits from Indemnitee is permitted under
Section 16(b) of the Exchange Act or similar provisions of any federal, state or local laws.
9. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the “Company” shall include, in addition to
the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director, officer, employee or
agent of another corporation,
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partnership, joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent corporation if its separate
existence had continued.
(b) For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any
service as a director, officer, employee or agent of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the
best interests of the Company” as referred to in this Agreement.
10. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
11. Successors and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all, substantially all or a substantial part of the business or
assets of the Company. This
Agreement shall inure to the benefit of Indemnitee and Indemnitee’s heirs, legal representatives,
executives and administrators. The Company shall require and cause any successor (whether direct or
indirect, and whether by purchase, merger, consolidation or otherwise) to all, substantially all or
a substantial part of the business or assets of the Company, to assume and agree in writing to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform if no such succession had taken place.
12. Attorneys’ Fees. If any action is instituted by Indemnitee under this Agreement to enforce
or interpret any of the terms hereof, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys’ fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines that each of the
material assertions made by Indemnitee as a basis for such action were not made in good faith or
were frivolous. If an action is instituted by or in the name of the Company under this Agreement or
to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid
all court costs and expenses, including attorneys’ fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee’s counterclaims and cross-claims made in such action),
unless as a part of such
action the court determines that each of Indemnitee’s material defenses to such action were made in
bad faith or were frivolous.
13. Effectiveness of Agreement. This Agreement shall be effective as of the date set forth on
the first page and shall apply to acts or omissions of Indemnitee which occurred prior to such date
if Indemnitee was an officer, director, employee or other agent of the Company, 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, as the time such act or omission occurred.
All agreements and obligations of the Company contained herein shall continue during the period
Indemnitee is a director, officer, employee or other agent of the Company (or is or was serving at
the request of the Company as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise) and shall continue
thereafter so long as Indemnitee may be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or
investigative, by reason of the fact that Indemnitee was serving in such capacity.
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14. Notice. All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted for by
the party addressee, on the date of such receipt, or (ii) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
15. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably consent to the
jurisdiction of the courts of the State of Delaware for all purposes in connection with any action
or proceeding which arises out of or relates to this Agreement and agree that any action instituted
under this
Agreement shall be brought only in the state courts of the State of Delaware.
16. Waiver of Jury. Each of the parties hereto hereby agrees to waive its respective rights to
a jury trial of any claim or cause of action based upon or arising out of this Agreement or the
transactions contemplated hereby. The scope of this Waiver is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the subject matter of this
Agreement, including contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each party hereto further represents and warrants that it has reviewed this
Waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel.
17. Choice of Law. This Agreement shall be governed by and its provisions construed in
accordance with the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware without regard to the conflict
of law principles thereof.
18. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs,
executors or personal or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is otherwise applicable to any such
cause of action, such
shorter period shall govern.
19. Subrogation. If a payment is made under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all
documents required and shall do all acts that may be necessary to secure such rights and to enable
the Company effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless it is in writing signed by both 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 hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver. The failure of either party to enforce any rights under this Agreement shall not be
construed as a waiver of any rights of such party.
21. Remedies. The Company and Indemnitee agree that a monetary remedy for breach of this
Agreement may be inadequate, impracticable and difficult to prove, and further agree that such
breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that
Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific performance
hereof, without any necessity of showing actual damage or irreparable harm and that by seeking
injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or
obtaining any other relief to
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which he or she may be entitled. The Company and Indemnitee further agree that Indemnitee
shall be entitled to such specific performance and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, without the necessity of
posting bonds or other undertaking in connection therewith. The Company acknowledges that in the
absence of a waiver, Indemnitee may be obligated to post a bond or make an undertaking, and the
Company hereby waives any such requirement of a bond or undertaking.
22. Integration and Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto, and supersedes and merges all previous written and oral negotiations,
commitments, understandings and agreements, relating to the subject matter hereof between the
parties hereto. This Agreement can only be modified by a writing specifically stating the intent
to amend this Agreement and signed by the Indemnitee and an authorized representative of the
Company.
23. Advice of Counsel. Each party acknowledges that, in executing this Agreement, such party
has had the opportunity to seek the advice of independent legal counsel, and has read and
understood all of the terms and provisions of this Agreement. This Agreement will not be construed
against any party by reason of the drafting or preparation hereof.
24. Headings. The headings for each Article and Section in this Agreement have been inserted
for convenience of reference only and are not intended to limit or expand on the meaning of the
language contained in the particular article or section.
25. Waiver. Any delay in enforcing a party’s rights under this Agreement or any waiver as to
a particular default or other matter will not constitute a waiver of such party’s rights to the
future enforcement of its rights under this Agreement, excepting only as to an express written and
signed waiver as to a particular matter for a particular period of time.
[The remainder of this page is intentionally left blank. The signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| CYTOKINETICS, INCORPORATED | ||||||
| Signature of Authorized Signatory | ||||||
| Print Name and Title | ||||||
| Address: | ||||||
| AGREED TO AND ACCEPTED: | ||||
| INDEMNITEE: | ||||
| Signature | ||||
| Print Name and Title | ||||
Address: |
||||
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