Exhibit 10.41


 


INDEMNIFICATION
AGREEMENT


 


INDEMNIFICATION AGREEMENT
(this “Agreement”) between Transkaryotic Therapies, Inc., a Delaware
corporation (the “Company”), and Richard F Selden, M.D. (the “Indemnitee”).


 


WHEREAS, the Indemnitee
has served as a director and officer of the Company;


 


WHEREAS, the Company
wishes to provide in this Agreement for the indemnification of the Indemnitee
to the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement;


 


NOW, THEREFORE, intending
to be legally bound hereby, the parties hereto agree as follows:


 


1.                                       Certain
Definitions:


 


(a)                                  “Claim” shall mean
any threatened, pending or completed action, suit, proceeding or inquiry or
investigation, whether instituted by or
in the right of the Company or any other party, whether civil, criminal, administrative, investigative or
otherwise, including, but not limited to, all related actions and all other
actions, suits, proceedings, inquiries or investigations related to the same or
related circumstances, issues, transactions or events.


 


(b)                                 “Expenses” shall
include attorneys’ fees and all other costs, expenses and obligations paid or
incurred (including all interest, assessments and other charges paid or payable
in connection with or in respect of such attorneys’ fees, costs, expenses and
obligations) in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in, any Claim, but shall not include any amounts set forth under
Section 1(e) of this Agreement.


 


(c)                                  “Indemnifiable Event”
shall mean any event or occurrence by reason of the fact that the Indemnitee is
or was a director, officer, employee, agent or fiduciary of the Company, or is
or was serving at the request of the Company as a director, officer, employee,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of anything done
or not done by the Indemnitee in any such capacity.


 


(d)                                 “Independent Legal
Counsel” shall mean an attorney or firm of attorneys, selected by the Company
and approved by the Indemnitee (which approval shall not be unreasonably
withheld or delayed), who shall not have otherwise performed services for, or
been paid by the Company for services rendered on behalf of, the Company or the
Indemnitee within the five years preceding the selection of such counsel.


 

















 


(e)                                  “Obligations” shall
include the amount of all judgments, fines or penalties against the Indemnitee
or amounts paid in settlement in connection with any Claim against the
Indemnitee (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement).


 


2.                                       Basic
Indemnification Arrangement.


 


(a)                                  In the event the
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify the Indemnitee against any Expenses and Obligations incurred by him or on his behalf, to
the fullest extent permitted by law.


 


(b)                                 The Indemnitee must
notify the Company in writing within a reasonable time of any Claim for which
indemnity will or could be sought and shall describe in reasonable detail the
facts constituting the basis for such indemnification; provided, however, that
no delay or failure on the part of the Indemnitee in so notifying the Company
shall relieve the Company of any liability or obligation hereunder except to
the extent of any damage or liability caused by or arising out of the
Indemnitee’s failure to provide such notice. 
With respect to any Claim of which the Company is so notified, and
subject to the provisions of this paragraph (b), the Company will be entitled
to participate therein at its own expense and/or to assume the defense thereof
at its own expense.  If the Company
assumes control of the defense of the Claim, the Company shall have the right
to hire legal counsel selected by the Company and approved by the Indemnitee
(which approval shall not be unreasonably withheld or delayed).  After notice from the Indemnitee that the
Company’s proposed legal counsel is acceptable to the Indemnitee, the Company
shall not be liable to the Indemnitee for the Expenses of counsel subsequently
incurred by the Indemnitee in connection with such Claim, other than as
provided below in this paragraph (b). 
The Indemnitee shall have the right to employ his or her own counsel in
connection with such Claim, but the fees and expenses of such counsel incurred
after notice from the Indemnitee that the Company’s proposed legal counsel is
acceptable to the Indemnitee shall be at the expense of the Indemnitee unless
(i) the employment of counsel by the Indemnitee has been authorized by the
Company, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any issue between the
Company and the Indemnitee in the conduct of the defense of such Claim or
(iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in each of which cases the Expenses of counsel for the
Indemnitee shall be at the expense of the Company, except as otherwise
expressly provided by this Agreement. 
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) above.  The Company shall not be required to
indemnify the Indemnitee under 


 


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this Agreement for
any amounts paid in settlement of any Claim effected without its written
consent.  The Company shall not settle
in any manner any Claim, in any action, suit, proceeding, or inquiry or
investigation in which the Indemnitee is a party, without the Indemnitee’s
written consent.  Nothing in this
Agreement shall affect the Company’s ability to compromise or settle any Claim
brought by the U.S. Securities and Exchange Commission so long as such
settlement does not include findings, conclusions, admissions or legal holdings
legally binding on the Indemnitee. 
Neither the Company nor the Indemnitee will unreasonably withhold or
delay their consent to any proposed settlement.


 


(c)                                  All requests for indemnification shall be
made to the Company in writing by the Indemnitee or his appointed agent.  The Company shall provide all such
indemnification, including payments for Expenses or Obligations, within 20 days
after receipt by the Company of the written request of the Indemnitee.


 


(d)                                 Notwithstanding
anything to the contrary herein, (i) the obligations of the Company under this
Section 2 shall be subject to the condition that the Independent Legal
Counsel shall not have determined (in a written opinion) that the Indemnitee
would not be permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make a payment pursuant to paragraph 2(c) above
shall be subject to the condition that, if, when and to the extent that the
Independent Legal Counsel determines that the Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be entitled to be
reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for
all such amounts theretofore paid; provided, however, that if the Indemnitee
has commenced or thereafter commences legal proceedings in any court in the
State of Delaware having subject matter jurisdiction thereof and in which venue
is proper to secure a determination that the Indemnitee should be indemnified
under applicable law, any determination made by the Independent Legal Counsel
that the Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and the Indemnitee shall not be required to reimburse
the Company for any payments made until a final judicial determination is made
with respect thereto (as to which all rights of appeal there from have been
exhausted or lapsed).  If there has been
no determination by the Independent Legal Counsel or if the Independent Legal
Counsel determines that the Indemnitee substantively would not be permitted to
be indemnified in whole or in part under applicable law, the Indemnitee shall
have the right to commence litigation in any court in the State of Delaware
having subject matter jurisdiction thereof and in which venue is proper seeking
an initial determination by the court or challenging any such determination by
the Independent Legal Counsel or any aspect thereof, including the legal or
factual bases thereof, and the Company hereby consents to service of process
and to appear in any such proceeding. 
Any determination by the Independent Legal Counsel otherwise shall be
conclusive and binding on the Company and the Indemnitee.


 


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3.                                       Outstanding Actions.  The Indemnitee has been named as a
defendant in Sands Point Partners, L.P. v. Transkaryotic Therapies, Inc., Civ. No. 03-10165-RWZ (D. Mass.
filed Jan. 24, 2003); King v. Selden, Civ. No. 03-10173-RWZ (D. Mass. filed
Jan. 27, 2003); Spitz v. Transkaryotic Therapies, Inc., Civ. No. 03-10226-RWZ
(D. Mass. filed Feb. 4, 2003); Price v.
Transkaryotic Therapies, Inc., Civ. No. 03-10250-RWZ (D. Mass. filed Feb. 6,
2003); Market Street Securities v. Transkaryotic Therapies, Inc., Civ. No.
03-10330-RWZ (D. Mass. filed Feb. 20, 2003); Marrero v. Transkaryotic
Therapies, Inc., Civ. No. 03-10397-RWZ (D. Mass. filed Mar. 4, 2003); Bloch v.
Transkaryotic Therapies, Inc., Civ. No. 03-10412-RWZ (D. Mass. filed Mar. 4,
2003); Portnoy v. Transkaryotic Therapies, Inc., Civ. No. 03-10413-RWZ (D. Mass.
filed Mar. 4, 2003); Lindsay v. Transkaryotic Therapies, Inc., Civ. No.
03-10330-RWZ (D. Mass. filed Mar. 7, 2003); In re Transkaryotic Therapies Inc.
Securities Litigation, Civ. No. 03-10165-RWZ (D. Mass. filed Apr. 9, 2003);
South Shore Gastrointerology UA 6/6/1980 FBO Harold Jacob, and Nancy R. Jacob
Ttee v. Transkaryotic Therapies, Inc. (Shareholder Derivative Complaint) (Mass. Superior Ct. filed Apr. 14,
2003), and has or may be a defendant, witness or participant in one or
more other related actions, suits, proceedings, inquiries or investigations
(the “Actions”).  The Actions are deemed
to be indemnifiable Claims
hereunder.  The Company hereby
authorizes the employment by the Indemnitee in connection with the Actions of
Skadden, Arps, Slate, Meagher & Flom LLP in accordance with Section 2(b)(i) and deems that with respect to
the Actions the Indemnitee has satisfied all of the requirements under Sections
2(b) and 2(c) of this Agreement.


 


4.                                       Independent
Legal Counsel.  The Company agrees that
if and when it submits a claim for indemnification to Independent Legal
Counsel, it shall cause such counsel to, among other things, render its written
opinion to the Company and the Indemnitee as to whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable law.  The Company agrees to pay the reasonable
fees of the Independent Legal Counsel and to indemnify fully such counsel
against any expenses (including attorneys’ fees), claims, liabilities and
damages arising out of or relating to this Agreement or such counsel’s
engagement pursuant hereto.


 


5.                                       Indemnification
for Additional Expenses.  The Company
shall indemnify the Indemnitee against any expenses (including attorneys’ fees)
and all other costs, expenses and obligations (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such attorneys’ fees, costs, expenses and obligations), to the fullest extent permitted by law, incurred
by the Indemnitee in connection with any action successfully brought by the
Indemnitee for (a) indemnification by the Company under this Agreement or any
other agreement, provision of law or governing Company document or By-law now
or hereafter in effect relating to a Claim or (b) recovery under any directors’
and officers’ liability insurance policies maintained by the Company.


 


6.                                       Partial
Indemnity.  If the Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses or Obligations but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion thereof to which the Indemnitee is entitled.


 


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7.                                       Burden
of Proof.  In connection with any
determination by the Independent Legal Counsel or otherwise as to whether the
Indemnitee is entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that the Indemnitee is not so entitled.


 


8.                                       No
Presumptions.  Subject to
Section 145(b) of the Delaware General Corporation Law, 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 the Indemnitee did not act in good faith and in a manner
which the 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 the Indemnitee’s conduct was
unlawful.  Neither the failure of the
Independent Legal Counsel to have made a determination as to whether the
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Independent Legal Counsel that the
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by the Indemnitee to secure a
judicial determination that the Indemnitee should be indemnified under
applicable law, shall be a defense to the Indemnitee’s claim for
indemnification or create a presumption that the Indemnitee has not met any
particular standard of conduct or did not have any particular belief.


 


9.                                       Nonexclusivity.  The rights of the Indemnitee hereunder shall
be in addition to any other rights the Indemnitee may have under the Company’s
By-laws, its Amended and Restated Certificate of Incorporation, the Delaware
General Corporation Law or otherwise. 
To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under 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.


 


10.                                 Liability
Insurance.  To the extent the Company
maintains an insurance policy or policies providing directors’ and/or officers’
liability insurance that cover Indemnifiable Events that may have occurred
prior to February 11, 2003, the Company shall cause the Indemnitee to be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company director or officer
with respect to such period of time.


 


11.                                 Amendments.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of 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.


 


12.                                 Subrogation.  In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be


 


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necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.


 


13.                                 No Duplication of
Payments.  The Company shall not be
liable under this Agreement to make any payment in connection with any Claim
made against the Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, By-law or otherwise) of the
amounts otherwise indemnifiable hereunder.


 


14.                                 Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company, spouses, heirs, executors and personal
and legal representatives.  This
Agreement shall continue in effect regardless of whether the Indemnitee
continues to serve as an officer or director of the Company or of any other
enterprise at the Company’s request. 
Nothing herein shall confer upon the Indemnitee any right to continue to
serve as an officer or director of the Company or of any other enterprise.


 


15.                                 Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable in any
respect, and the validity and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
and shall remain enforceable to the fullest extent permitted by law.


 


16.                                 Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.


 


17.                                 Notices. 
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (a) when delivered by
hand or (b) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed:


 


(a)                                  if to the Indemnitee, to: Richard Selden, 106
Bristol Road, Wellesley, MA 02481, with copy to:  Thomas J. Dougherty, Esq., Skadden, Arps, Slate, Meagher &
Flom LLP, One Beacon Street, Boston, MA 02108.


 


(b)                                 if to the Company, to: Transkaryotic
Therapies, Inc., 700 Main Street, Cambridge, MA 02139, Attn:  President and Chief Executive Officer.


 


18.                                 Entire Agreement.  This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all
prior agreements, whether oral or written, by any officer, employee or
representative of any party hereto in respect of the subject matter contained
herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.  For avoidance of doubt, the parties confirm
that the foregoing does not apply


 


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to or limit the Indemnitee’s rights under Delaware law or the Company’s
Certificate of Incorporation or By-Laws.


 


19.                                 Effective
Date of Terms of Agreement.  The parties
hereby agree that the terms of this Agreement are deemed to be effective as of
February 11, 2003.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the date set forth below their
signatures.


 


 


	
   

  	
  TRANSKARYOTIC THERAPIES,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael J. Astrue

  	
   

  
	
   

  	
   

  	
  Name: Michael J. Astrue

  
	
   

  	
   

  	
  Title: CEO

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   July 31, 2003

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
  /s/ Richard F Selden

  	
   

  
	
   

  	
  Richard F Selden, M.D.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   July 31, 2003

  	
   

  
						



 


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