**Exhibit 10.41**

 

INDEMNIFICATIONAGREEMENT

 

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

 

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

 

WHEREAS, the Companywishes to provide in this Agreement for the indemnification of the Indemniteeto the fullest extent (whether partial or complete) permitted by law and as setforth in this Agreement;

 

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

 

# 1.                                       CertainDefinitions:

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

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

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## (c)                                  “Indemnifiable Event”shall mean any event or occurrence by reason of the fact that the Indemnitee isor was a director, officer, employee, agent or fiduciary of the Company, or isor 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 doneor not done by the Indemnitee in any such capacity.

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## (d)                                 “Independent LegalCounsel” shall mean an attorney or firm of attorneys, selected by the Companyand approved by the Indemnitee (which approval shall not be unreasonablywithheld or delayed), who shall not have otherwise performed services for, orbeen paid by the Company for services rendered on behalf of, the Company or theIndemnitee within the five years preceding the selection of such counsel.

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## (e)                                  “Obligations” shallinclude the amount of all judgments, fines or penalties against the Indemniteeor amounts paid in settlement in connection with any Claim against theIndemnitee (including all interest, assessments and other charges paid orpayable in connection with or in respect of such judgments, fines, penalties oramounts paid in settlement).

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# 2.                                       BasicIndemnification Arrangement.

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

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## (b)                                 The Indemnitee mustnotify the Company in writing within a reasonable time of any Claim for whichindemnity will or could be sought and shall describe in reasonable detail thefacts constituting the basis for such indemnification; provided, however, thatno delay or failure on the part of the Indemnitee in so notifying the Companyshall relieve the Company of any liability or obligation hereunder except tothe extent of any damage or liability caused by or arising out of theIndemnitee’s failure to provide such notice. With respect to any Claim of which the Company is so notified, andsubject to the provisions of this paragraph (b), the Company will be entitledto participate therein at its own expense and/or to assume the defense thereofat its own expense.  If the Companyassumes control of the defense of the Claim, the Company shall have the rightto 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 theCompany’s proposed legal counsel is acceptable to the Indemnitee, the Companyshall not be liable to the Indemnitee for the Expenses of counsel subsequentlyincurred by the Indemnitee in connection with such Claim, other than asprovided below in this paragraph (b). The Indemnitee shall have the right to employ his or her own counsel inconnection with such Claim, but the fees and expenses of such counsel incurredafter notice from the Indemnitee that the Company’s proposed legal counsel isacceptable to the Indemnitee shall be at the expense of the Indemnitee unless(i) the employment of counsel by the Indemnitee has been authorized by theCompany, (ii) counsel to the Indemnitee shall have reasonably concludedthat there may be a conflict of interest or position on any issue between theCompany 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 thedefense of such Claim, in each of which cases the Expenses of counsel for theIndemnitee shall be at the expense of the Company, except as otherwiseexpressly provided by this Agreement. The Company shall not be entitled, without the consent of theIndemnitee, to assume the defense of any Claim brought by or in the right ofthe Company or as to which counsel for the Indemnitee shall have reasonablymade the conclusion provided for in clause (ii) above.  The Company shall not be required toindemnify the Indemnitee under 

 

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## this Agreement forany amounts paid in settlement of any Claim effected without its writtenconsent.  The Company shall not settlein any manner any Claim, in any action, suit, proceeding, or inquiry orinvestigation in which the Indemnitee is a party, without the Indemnitee’swritten consent.  Nothing in thisAgreement shall affect the Company’s ability to compromise or settle any Claimbrought by the U.S. Securities and Exchange Commission so long as suchsettlement does not include findings, conclusions, admissions or legal holdingslegally binding on the Indemnitee. Neither the Company nor the Indemnitee will unreasonably withhold ordelay their consent to any proposed settlement.

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## (c)                                  All requests for indemnification shall bemade to the Company in writing by the Indemnitee or his appointed agent.  The Company shall provide all suchindemnification, including payments for Expenses or Obligations, within 20 daysafter receipt by the Company of the written request of the Indemnitee.

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## (d)                                 Notwithstandinganything to the contrary herein, (i) the obligations of the Company under thisSection 2 shall be subject to the condition that the Independent LegalCounsel shall not have determined (in a written opinion) that the Indemniteewould not be permitted to be indemnified under applicable law, and (ii) theobligation of the Company to make a payment pursuant to paragraph 2(c) aboveshall be subject to the condition that, if, when and to the extent that theIndependent Legal Counsel determines that the Indemnitee would not be permittedto be so indemnified under applicable law, the Company shall be entitled to bereimbursed by the Indemnitee (who hereby agrees to reimburse the Company) forall such amounts theretofore paid; provided, however, that if the Indemniteehas commenced or thereafter commences legal proceedings in any court in theState of Delaware having subject matter jurisdiction thereof and in which venueis proper to secure a determination that the Indemnitee should be indemnifiedunder applicable law, any determination made by the Independent Legal Counselthat the Indemnitee would not be permitted to be indemnified under applicablelaw shall not be binding and the Indemnitee shall not be required to reimbursethe Company for any payments made until a final judicial determination is madewith respect thereto (as to which all rights of appeal there from have beenexhausted or lapsed).  If there has beenno determination by the Independent Legal Counsel or if the Independent LegalCounsel determines that the Indemnitee substantively would not be permitted tobe indemnified in whole or in part under applicable law, the Indemnitee shallhave the right to commence litigation in any court in the State of Delawarehaving subject matter jurisdiction thereof and in which venue is proper seekingan initial determination by the court or challenging any such determination bythe Independent Legal Counsel or any aspect thereof, including the legal orfactual bases thereof, and the Company hereby consents to service of processand to appear in any such proceeding. Any determination by the Independent Legal Counsel otherwise shall beconclusive and binding on the Company and the Indemnitee.

 

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3.                                       Outstanding Actions.  The Indemnitee has been named as adefendant 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. filedJan. 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. TranskaryoticTherapies, 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. JacobTtee 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 ormore other related actions, suits, proceedings, inquiries or investigations(the “Actions”).  The Actions are deemedto be indemnifiable Claimshereunder.  The Company herebyauthorizes the employment by the Indemnitee in connection with the Actions ofSkadden, Arps, Slate, Meagher & Flom LLP in accordance with Section 2(b)(i) and deems that with respect tothe Actions the Indemnitee has satisfied all of the requirements under Sections2(b) and 2(c) of this Agreement.

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# 4.                                       IndependentLegal Counsel.  The Company agrees thatif and when it submits a claim for indemnification to Independent LegalCounsel, it shall cause such counsel to, among other things, render its writtenopinion to the Company and the Indemnitee as to whether and to what extent theIndemnitee would be permitted to be indemnified under applicable law.  The Company agrees to pay the reasonablefees of the Independent Legal Counsel and to indemnify fully such counselagainst any expenses (including attorneys’ fees), claims, liabilities anddamages arising out of or relating to this Agreement or such counsel’sengagement pursuant hereto.

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5.                                       Indemnificationfor Additional Expenses.  The Companyshall 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 respectof such attorneys’ fees, costs, expenses and obligations), to the fullest extent permitted by law, incurredby the Indemnitee in connection with any action successfully brought by theIndemnitee for (a) indemnification by the Company under this Agreement or anyother agreement, provision of law or governing Company document or By-law nowor hereafter in effect relating to a Claim or (b) recovery under any directors’and officers’ liability insurance policies maintained by the Company.

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

 

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# 7.                                       Burdenof Proof.  In connection with anydetermination by the Independent Legal Counsel or otherwise as to whether theIndemnitee is entitled to be indemnified hereunder the burden of proof shall beon the Company to establish that the Indemnitee is not so entitled.

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# 8.                                       NoPresumptions.  Subject toSection 145(b) of the Delaware General Corporation Law, the termination ofany action, suit or proceeding by judgment, order, settlement, conviction, orupon a plea of nolo contendere or its equivalent, shall not, of itself, createa presumption that the Indemnitee did not act in good faith and in a mannerwhich the Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Company, and, with respect to any criminal action orproceeding, had reasonable cause to believe that the Indemnitee’s conduct wasunlawful.  Neither the failure of theIndependent Legal Counsel to have made a determination as to whether theIndemnitee has met any particular standard of conduct or had any particularbelief, nor an actual determination by the Independent Legal Counsel that theIndemnitee 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 ajudicial determination that the Indemnitee should be indemnified underapplicable law, shall be a defense to the Indemnitee’s claim forindemnification or create a presumption that the Indemnitee has not met anyparticular standard of conduct or did not have any particular belief.

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# 9.                                       Nonexclusivity.  The rights of the Indemnitee hereunder shallbe in addition to any other rights the Indemnitee may have under the Company’sBy-laws, its Amended and Restated Certificate of Incorporation, the DelawareGeneral 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 byagreement than would be afforded currently under this Agreement, it is theintent of the parties hereto that Indemnitee shall enjoy by this Agreement thegreater benefits so afforded by such change.

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# 10.                                 LiabilityInsurance.  To the extent the Companymaintains an insurance policy or policies providing directors’ and/or officers’liability insurance that cover Indemnifiable Events that may have occurredprior to February 11, 2003, the Company shall cause the Indemnitee to becovered by such policy or policies, in accordance with its or their terms, tothe maximum extent of the coverage available for any Company director or officerwith respect to such period of time.

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# 11.                                 Amendments.  No supplement, modification or amendment ofthis Agreement shall be binding unless executed in writing by both of theparties hereto.  No waiver of any of theprovisions of this Agreement shall be deemed or shall constitute a waiver ofany other provisions hereof (whether or not similar) nor shall such waiverconstitute a continuing waiver.

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# 12.                                 Subrogation.  In the event of payment under thisAgreement, the Company shall be subrogated to the extent of such payment to allof the rights of recovery of the Indemnitee, who shall execute all papersrequired and shall do everything that may be

 

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# necessary tosecure such rights, including the execution of such documents necessary toenable the Company effectively to bring suit to enforce such rights.

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# 13.                                 No Duplication ofPayments.  The Company shall not beliable under this Agreement to make any payment in connection with any Claimmade against the Indemnitee to the extent the Indemnitee has otherwise actuallyreceived payment (under any insurance policy, By-law or otherwise) of theamounts otherwise indemnifiable hereunder.

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# 14.                                 Binding Effect.  This Agreement shall be binding upon andinure to the benefit of and be enforceable by the parties hereto and theirrespective successors, assigns, including any direct or indirect successor bypurchase, merger, consolidation or otherwise to all or substantially all of thebusiness and/or assets of the Company, spouses, heirs, executors and personaland legal representatives.  ThisAgreement shall continue in effect regardless of whether the Indemniteecontinues to serve as an officer or director of the Company or of any otherenterprise at the Company’s request**.** Nothing herein shall confer upon the Indemnitee any right to continue toserve as an officer or director of the Company or of any other enterprise.

 

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

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# 16.                                 Governing Law.  This Agreement shall be governed by andconstrued and enforced in accordance with the laws of the State of Delawareapplicable to contracts made and to be performed in such state without givingeffect to the principles of conflicts of laws.

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

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(a)                                  if to the Indemnitee, to: Richard Selden, 106Bristol 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: TranskaryoticTherapies, 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 partieshereto in respect of the subject matter contained herein and supercedes allprior agreements, whether oral or written, by any officer, employee orrepresentative of any party hereto in respect of the subject matter containedherein; and any prior agreement of the parties hereto in respect of the subjectmatter contained herein is hereby terminated and cancelled.  For avoidance of doubt, the parties confirmthat the foregoing does not apply

 

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

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19.                                 EffectiveDate of Terms of Agreement.  The partieshereby agree that the terms of this Agreement are deemed to be effective as ofFebruary 11, 2003.

 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement on the date set forth below theirsignatures.

 

 
|   | 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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