**Exhibit10.37**

 

INDEMNIFICATIONAGREEMENT

 

This Agreement is made asof the 30th day of April 2003, by and between Transkaryotic Therapies, Inc., aDelaware corporation (the “Corporation”), and Michael J. Astrue (the“Indemnitee”), a director and an officer of the Corporation.

 

WHEREAS, it is essentialto the Corporation to retain and attract as directors and officers the mostcapable persons available, and

 

WHEREAS, the substantialincrease in corporate litigation subjects directors and officers to expensivelitigation risks at the same time that the availability of directors’ andofficers’ liability insurance has been severely limited, and

 

WHEREAS, it is now andhas always been the express policy of the Corporation to indemnify itsdirectors and officers, and

 

WHEREAS, the Indemniteedoes not regard the protection available under the Corporation’s Certificate ofIncorporation, as amended to date, and insurance as adequate in the presentcircumstances, and may not be willing to serve or continue to serve as adirector and an officer without adequate protection, and

 

WHEREAS, the Corporationdesires the Indemnitee to serve, or continue to serve, as a director and anofficer of the Corporation.

 

NOW THEREFORE, theCorporation and the Indemnitee do hereby agree as follows:

 

# 1.                                       Agreement toServe.  The Indemnitee agrees toserve or continue to serve as a director and an officer of the Corporation forso long as the Indemnitee is duly elected or appointed or until such time asthe Indemnitee tenders a resignation in writing.

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# 2.                                       Definitions.  As used in this Agreement:

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## (a)                                  Theterm “Proceeding” shall include any threatened, pending or completed action,suit, arbitration, alternative dispute resolution proceeding, administrativehearing or other proceeding, whether brought by or in the right of theCorporation or otherwise and whether of a civil, criminal, administrative orinvestigative nature, and any appeal therefrom.

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## (b)                                 Theterm “Corporate Status” shall mean the status of a person who is or was adirector or officer of the Corporation, or is or was serving, or has agreed toserve, at the request of the Corporation, as a director, officer, partner,trustee, member, employee or agent of another corporation, partnership, jointventure, trust, limited liability company or other enterprise.

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## (c)                                  Theterm “Expenses” shall include, without limitation, reasonable attorneys’ fees,retainers, court costs, transcript costs, fees and expenses of experts, travel

 

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## expenses,duplicating costs, printing and binding costs, telephone charges, postage,delivery service fees and other disbursements or expenses of the typescustomarily incurred in connection with investigations and judicial oradministrative proceedings or appeals, but shall not include the amount ofjudgments, fines or penalties against Indemnitee or amounts paid in settlementin connection with such matters.

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## (d)                                 Referencesto “other enterprise” shall include employee benefit plans; references to“fines” shall include any excise tax assessed with respect to any employeebenefit plan; references to “serving at the request of the Corporation” shallinclude any service as a director, officer, employee or agent of theCorporation which imposes duties on, or involves services by, such director,officer, employee, or agent with respect to an employee benefit plan, itsparticipants, or beneficiaries; and a person who acted in good faith and in amanner such person reasonably believed to be in the interests of theparticipants and beneficiaries of an employee benefit plan shall be deemed tohave acted in a manner “not opposed to the best interests of the Corporation”as referred to in this Agreement.

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# 3.                                       Indemnificationin Third-Party Proceedings.  TheCorporation shall indemnify the Indemnitee in accordance with the provisions ofthis Paragraph 3 if the Indemnitee was or is a party to or threatened tobe made a party to or otherwise involved in any Proceeding (other than aProceeding by or in the right of the Corporation to procure a judgment in itsfavor) by reason of the Indemnitee’s Corporate Status or by reason of anyaction alleged to have been taken or omitted in connection therewith, againstall Expenses, judgments, fines, penalties and amounts paid in settlementactually and reasonably incurred by or on behalf of the Indemnitee inconnection with such Proceeding, if the Indemnitee acted in good faith and in amanner which the Indemnitee reasonably believed to be in, or not opposed to,the best interests of the Corporation and, with respect to any criminalProceeding, had no reasonable cause to believe that his conduct wasunlawful.  The termination of anyProceeding by judgment, order, settlement, conviction or upon a plea of nolocontendere or its equivalent, shall not, of itself, create a presumptionthat the Indemnitee did not act in good faith and in a manner which theIndemnitee reasonably believed to be in, or not opposed to, the best interestsof the Corporation, and, with respect to any criminal Proceeding, hadreasonable cause to believe that his conduct was unlawful.

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4.                                       Indemnificationin Proceedings by or in the Right of the Corporation.  The Corporation shall indemnify theIndemnitee in accordance with the provisions of this Paragraph 4 if theIndemnitee was or is a party to or threatened to be made a party to orotherwise involved in any Proceeding by or in the right of the Corporation toprocure a judgment in its favor by reason of the Indemnitee’s Corporate Statusor by reason of any action alleged to have been taken or omitted in connectiontherewith, against all Expenses and, to the extent permitted by law, amountspaid in settlement actually and reasonably incurred by or on behalf of theIndemnitee in connection with such Proceeding, if the Indemnitee acted in goodfaith and in a manner which the Indemnitee reasonably believed to be in, or notopposed to, the best interests of the Corporation, except that noindemnification shall be made under this Paragraph 4 in respect of anyclaim, issue, or matter as to which the Indemnitee shall have been adjudged tobe liable to the Corporation, unless, and only to the extent, that the Court ofChancery of Delaware or the court in which such action or suit was broughtshall determine upon application that, despite the adjudication of suchliability but in view of all the circumstances of the case, the

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Indemnitee is fairly andreasonably entitled to indemnity for such Expenses as the Court of Chancery orsuch other court shall deem proper.

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5.                                       Exceptionsto Right of Indemnification. Notwithstanding anything to the contrary in this Agreement, except asset forth in Paragraph 10, the Corporation shall not indemnify theIndemnitee in connection with a Proceeding (or part thereof) initiated by theIndemnitee unless the initiation thereof was approved by the Board of Directorsof the Corporation.  Notwithstandinganything to the contrary in this Agreement, the Corporation shall not indemnifythe Indemnitee to the extent the Indemnitee has actually been reimbursed from theproceeds of insurance, and in the event the Corporation makes anyindemnification payments to the Indemnitee and the Indemnitee is subsequentlyreimbursed from the proceeds of insurance, the Indemnitee shall promptly refundsuch indemnification payments to the Corporation to the extent of suchinsurance reimbursement.

 

6.                                       Indemnificationof Expenses of Successful Party. Notwithstanding any other provision of this Agreement, to the extentthat the Indemnitee has been successful, on the merits or otherwise, in defenseof any Proceeding or in defense of any claim, issue or matter therein, theIndemnitee shall be indemnified against all Expenses incurred by or on behalfof the Indemnitee in connection therewith. Without limiting the foregoing, if any Proceeding or any claim, issue ormatter therein is disposed of, on the merits or otherwise (including adisposition without prejudice), without (i) the disposition being adverseto the Indemnitee, (ii) an adjudication that the Indemnitee was liable tothe Corporation, (iii) a plea of guilty or nolocontendereby the Indemnitee, (iv) an adjudication that the Indemnitee did not act ingood faith and in a manner the Indemnitee reasonably believed to be in or notopposed to the best interests of the Corporation, and (v) with respect toany criminal proceeding, an adjudication that the Indemnitee had reasonablecause to believe his conduct was unlawful, the Indemnitee shall be consideredfor the purposes hereof to have been wholly successful with respect thereto.

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7.                                       Notificationand Defense of Claim.  As acondition precedent to the Indemnitee’s right to be indemnified, the Indemniteemust notify the Corporation in writing as soon as practicable of any Proceedingfor which indemnity will or could be sought. With respect to any Proceeding of which the Corporation is so notified,the Corporation will be entitled to participate therein at its own expenseand/or to assume the defense thereof at its own expense, with legal counselreasonably acceptable to the Indemnitee. After notice from the Corporation to the Indemnitee of its election soto assume such defense, the Corporation shall not be liable to the Indemniteefor any legal or other expenses subsequently incurred by the Indemnitee inconnection with such Proceeding, other than as provided below in thisParagraph 7.  The Indemnitee shallhave the right to employ his own counsel in connection with such Proceeding,but the fees and expenses of such counsel incurred after notice from theCorporation of its assumption of the defense thereof shall be at the expense ofthe Indemnitee unless (i) the employment of counsel by the Indemnitee hasbeen authorized by the Corporation, (ii) counsel to the Indemnitee shallhave reasonably concluded that there may be a conflict of interest or positionon any significant issue between the Corporation and the Indemnitee in theconduct of the defense of such Proceeding or (iii) the Corporation shallnot in fact have employed counsel to assume the defense of such Proceeding, ineach of which cases the reasonable fees and expenses of counsel for theIndemnitee shall be at the expense of the Corporation, except as otherwiseexpressly provided by this Agreement. The Corporation shall not be entitled, without the

 

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consent of theIndemnitee, to assume the defense of any claim brought by or in the right ofthe Corporation or as to which counsel for the Indemnitee shall have reasonablymade the conclusion provided for in clause (ii) above.  The Corporation shall not be required toindemnify the Indemnitee under this Agreement for any amounts paid insettlement of any Proceeding effected without its written consent.  The Corporation shall not settle any Proceedingin any manner which would impose any penalty or limitation on the Indemniteewithout the Indemnitee’s written consent. Neither the Corporation nor the Indemnitee will unreasonably withhold ordelay their consent to any proposed settlement.

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# 8.                                       Advancementof Expenses.  Subject to the provisionsof Paragraph 9 of this Agreement, in the event that the Corporation doesnot assume the defense pursuant to Paragraph 7 of this Agreement of anyProceeding of which the Corporation receives notice under this Agreement, anyExpenses incurred by or on behalf of the Indemnitee in defending suchProceeding shall be paid by the Corporation in advance of the final dispositionof such Proceeding; provided, however, that the payment of suchExpenses incurred by or on behalf of the Indemnitee in advance of the finaldisposition of such Proceeding shall be made only upon receipt of anundertaking by or on behalf of the Indemnitee to repay all amounts so advancedin the event that it shall ultimately be determined that the Indemnitee is notentitled to be indemnified by the Corporation as authorized in thisAgreement.  Such undertaking shall beaccepted without reference to the financial ability of the Indemnitee to makerepayment.

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# 9.                                       Procedure forIndemnification.  In order to obtainindemnification or advancement of Expenses pursuant to Paragraphs 3, 4, 6 or 8of this Agreement, the Indemnitee shall submit to the Corporation a writtenrequest.  Any such indemnification oradvancement of Expenses shall be made promptly, and in any event within 30 daysafter receipt by the Corporation of the written request of the Indemnitee,unless with respect to requests under Paragraphs 3, 4 or 8, by clear andconvincing evidence, the Corporation determines within such 30-day period thatthe Indemnitee did not meet the applicable standard of conduct set forth inParagraph 3 or 4, as the case may be. Such determination, and any determination that advanced Expenses must berepaid to the Corporation, shall be made in each instance (a) by amajority vote of the directors of the Corporation consisting of persons who arenot at that time parties to the Proceeding (“disinterested directors”), whetheror not a quorum, (b) by a committee of disinterested directors designatedby a majority vote of disinterested directors, whether or not a quorum,(c) if there are no disinterested directors, or if the disinteresteddirectors so direct, by independent legal counsel (who may, to the extentpermitted by applicable law, be regular legal counsel to the Corporation) in awritten opinion, or (d) by the stockholders of the Corporation.

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# 10.                                 Remedies.  The right to indemnification or advancementof Expenses as provided by this Agreement shall be enforceable by theIndemnitee in any court of competent jurisdiction.  Unless otherwise required by law, the burden of proving thatindemnification is not appropriate shall be on the Corporation.  Neither the failure of the Corporation tohave made a determination prior to the commencement of such action thatindemnification is proper in the circumstances because the Indemnitee has metthe applicable standard of conduct, nor an actual determination by theCorporation pursuant to Paragraph 9 that the Indemnitee has not met suchapplicable standard of conduct, shall be a defense to the action or create a presumptionthat the Indemnitee has not met the applicable standard of conduct.  The Indemnitee’s expenses (of the typedescribed in the definition of “Expenses” in Paragraph 2(c)) reasonablyincurred in connection

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# with successfullyestablishing the Indemnitee’s right to indemnification, in whole or in part, inany such Proceeding shall also be indemnified by the Corporation.

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# 11.                                 PartialIndemnification.  If the Indemniteeis entitled under any provision of this Agreement to indemnification by theCorporation for some or a portion of the Expenses, judgments, fines, penaltiesor amounts paid in settlement actually and reasonably incurred by or on behalfof the Indemnitee in connection with any Proceeding but not, however, for thetotal amount thereof, the Corporation shall nevertheless indemnify theIndemnitee for the portion of such Expenses, judgments, fines, penalties oramounts paid in settlement to which the Indemnitee is entitled.

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# 12.                                 Subrogation.  In the event of any payment under thisAgreement, the Corporation shall be subrogated to the extent of such payment toall of the rights of recovery of the Indemnitee, who shall execute all papersrequired and take all action necessary to secure such rights, includingexecution of such documents as are necessary to enable the Corporation to bringsuit to enforce such rights.

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# 13.                                 Term of Agreement.  This Agreement shall continue until andterminate upon the later of (a) six years after the date that the Indemnitee shallhave ceased to serve as a director or an officer of the Corporation or, at therequest of the Corporation, as a director, officer, partner, trustee, member,employee or agent of another corporation, partnership, joint venture, trust,limited liability company or other enterprise or (b) the final termination ofall Proceedings pending on the date set forth in clause (a) in respect of whichthe Indemnitee is granted rights of indemnification or advancement of Expenseshereunder and of any proceeding commenced by the Indemnitee pursuant toParagraph 10 of this Agreement relating thereto.

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# 14.                                 IndemnificationHereunder Not Exclusive.  Theindemnification and advancement of Expenses provided by this Agreement shallnot be deemed exclusive of any other rights to which the Indemnitee may beentitled under the Certificate of Incorporation, as amended to date, theBy-Laws, as amended to date, any other agreement, any vote of stockholders ordisinterested directors, the General Corporation Law of Delaware, any other law(common or statutory), or otherwise, both as to action in the Indemnitee’sofficial capacity and as to action in another capacity while holding office forthe Corporation.  Nothing contained inthis Agreement shall be deemed to prohibit the Corporation from purchasing andmaintaining insurance, at its expense, to protect itself or the Indemniteeagainst any expense, liability or loss incurred by it or the Indemnitee in anysuch capacity, or arising out of the Indemnitee’s status as such, whether or notthe Indemnitee would be indemnified against such expense, liability or lossunder this Agreement; provided that the Corporation shall not be liable underthis Agreement to make any payment of amounts otherwise indemnifiable hereunderif and to the extent that the Indemnitee has otherwise actually received suchpayment under any insurance policy, contract, agreement or otherwise.

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# 15.                                 No Special Rights.  Nothing herein shall confer upon theIndemnitee any right to continue to serve as a director or an officer of theCorporation for any period of time or at any particular rate of compensation.

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# 16.                                 Savings Clause.  If this Agreement or any portion thereofshall be invalidated on any ground by any court of competent jurisdiction, thenthe Corporation shall nevertheless indemnify the Indemnitee as to Expenses,judgments, fines, penalties and amounts paid in settlement with respect to anyProceeding to the full extent permitted by any applicable portion of thisAgreement that shall not have been invalidated and to the fullest extentpermitted by applicable law.

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# 17.                                 Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall constitute the original.

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# 18.                                 Successors andAssigns.  This Agreement shall bebinding upon the Corporation and its successors and assigns and shall inure tothe benefit of the estate, heirs, executors, administrators and personalrepresentatives of the Indemnitee.

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# 19.                                 Headings.  The headings of the paragraphs of thisAgreement are inserted for convenience only and shall not be deemed toconstitute part of this Agreement or to affect the construction thereof.

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# 20.                                 Modification andWaiver.  This Agreement may beamended from time to time to reflect changes in Delaware law or for otherreasons.  No supplement, modification oramendment of this Agreement shall be binding unless executed in writing by bothof the parties hereto.  No waiver of anyof the provisions of this Agreement shall be deemed or shall constitute awaiver of any other provision hereof nor shall any such waiver constitute acontinuing waiver.

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# 21.                                 Notices.  All notices, requests, demands and othercommunications hereunder shall be in writing and shall be deemed to have beengiven (i) when delivered by hand or (ii) if mailed by certified orregistered mail with postage prepaid, on the third day after the date on whichit is so mailed:

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## (a)                                  ifto the Indemnitee, to:

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Michael J. Astrue

47 Benton Road

Belmont, MA 02478

 

 

## (b)                                 ifto the Corporation, to:

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Transkaryotic Therapies,Inc.

700 Main Street

Cambridge, MA  02139

Attn:  Board of Directors

 

or to such other addressas may have been furnished to the Indemnitee by the Corporation or to theCorporation by the Indemnitee, as the case may be.

 

# 22.                                 Applicable Law.  This Agreement shall be governed by, andconstrued and enforced in accordance with, the laws of the State ofDelaware.  The Indemnitee may elect to

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# have the right toindemnification or reimbursement or advancement of Expenses interpreted on thebasis of the applicable law in effect at the time of the occurrence of theevent or events giving rise to the applicable Proceeding, to the extentpermitted by law, or on the basis of the applicable law in effect at the timesuch indemnification or reimbursement or advancement of Expenses issought.  Such election shall be made, bya notice in writing to the Corporation, at the time indemnification or reimbursementor advancement of Expenses is sought; provided, however, that ifno such notice is given, and if the General Corporation Law of Delaware isamended, or other Delaware law is enacted, to permit further indemnification ofthe directors and officers, then the Indemnitee shall be indemnified to thefullest extent permitted under the General Corporation Law, as so amended, orby such other Delaware law, as so enacted.

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# 23.                                 Enforcement.  The Corporation expressly confirms andagrees that it has entered into this Agreement in order to induce the Indemniteeto continue to serve as a director or an officer of the Corporation, andacknowledges that the Indemnitee is relying upon this Agreement in continuingin such capacity.

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# 24.                                 Entire Agreement.  This Agreement, together with the employmentagreement between the parties and any directors and officers liabilityinsurance coverage that may be provided by the Corporation to the Indemnitee,sets forth the entire agreement of the parties hereto in respect of the subjectmatter contained herein and supercedes all prior agreements, whether oral orwritten, by any officer, employee or representative of any party hereto inrespect of the subject matter contained herein; and any prior agreement of theparties hereto in respect of the subject matter contained herein is herebyterminated and cancelled.  For avoidanceof doubt, the parties confirm that the foregoing does not apply to or limit theIndemnitee’s rights under Delaware law or the Corporation’s Certificate of Incorporationor By-Laws, each as amended to date.

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# 25.                                 Consent to Suit.  In the case of any dispute under or inconnection with this Agreement, the Indemnitee may only bring suit against theCorporation in the Court of Chancery of the State of Delaware.  The Indemnitee hereby consents to theexclusive jurisdiction and venue of the courts of the State of Delaware, andthe Indemnitee hereby waives any claim the Indemnitee may have at any time asto forum non conveniens with respect to such venue.  The Corporation shall have the right to institute any legalaction arising out of or relating to this Agreement in any court of competentjurisdiction.  Any judgment enteredagainst either of the parties in any proceeding hereunder may be entered andenforced by any court of competent jurisdiction.

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed as of the day and year first above written.

 
|   | TRANSKARYOTIC  THERAPIES, INC. |
|--------|--------------------------------|
|   |                           |   |
|   | By:                            |    /s/  Rodman W. Moorhead III |   |
|   |                           |   |   |
|   | Name:                          | Rodman W. Moorhead III |
|   |                           |   |
|   | Title:                         | Chairman of the Board  of  Directors |
|   |                           |   |
|   |                           |   |
|   | INDEMNITEE:                    |
|   |                           |
|   |                           |
|   | /s/  Michael J. Astrue         |   |

 

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