Exhibit 10.7
INDEMNITY DEED - DIRECTORS
SILENCE THERAPEUTICS PLC
[Name of Director]
[Address]
____ August 2020
Dear [Name of Director],
Silence Therapeutics plc (the “Company”) and your role as a director and/or officer of the Company
As you are aware the articles of association of the Company (the “Articles”), at Article 155, contemplate that the Company will indemnify the Company’s directors in relation to specific liabilities incurred by them in the performance of their duties. We are taking this opportunity to afford you the direct benefit of this indemnity in the form of a deed for your benefit (this “Deed”). The arrangements contemplated by this Deed are within the scope of permitted directors’ indemnities under the Companies Act 2006 (the “Act”).
1. | Interpretation |
1.1 | In this Deed: |
| 1.1.1 | any defined terms (to the extent undefined herein) shall have the meanings given to them in the Articles; |
| 1.1.2 | any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; |
| 1.1.3 | unless the context otherwise requires, reference to paragraphs are to paragraphs of this Deed; |
| 1.1.4 | any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and |
| 1.1.5 | other and otherwise are illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding them. |
2. | Indemnity |
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2.2 | The indemnity in paragraph 2.1 shall not apply to: |
| 2.2.1 | the extent prohibited by the Act or otherwise prohibited by law; |
| 2.2.2.2 | in defending any civil Proceedings brought by the Company or any Associated Company in which judgement is given against you; and |
| 2.2.2.3 | in connection with any application under section 661(3) or (4) or section 1157 of the Act (a “Relevant Application”) in which the court refuses to grant you relief on the application, |
where, in any such case, any such conviction, judgement or refusal of relief has become final (reference in this paragraph 2.2.2 to a conviction, judgement or refusal of relief being “final” shall be construed in accordance with section 234(4) and (5) of the Act);
| 2.2.3 | any Liability incurred by you to the Company or any Associated Company; |
| 2.2.5 | any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (howsoever arising); |
| 2.2.6 | any Liability relating to any taxation or national insurance payable by you in connection with your remuneration or other benefits received from the Company or any Associated Company; |
| 2.2.7 | the extent you are entitled to recover from any other person (including under any policy of insurance) any amount in relation to a Claim; or |
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| 2.3.2 | any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (howsoever arising); and |
2.4 | References in paragraphs 2.1 and 2.3 to acts or omissions are to acts or omissions made or omitted to be made before, on or after the date of this Deed, however: |
| 2.5.1 | the Liability suffered or incurred by you and of the date(s) on which it was suffered or incurred and that it falls within the scope of the indemnities given in paragraphs 2.1 and/or 2.3; and |
| 2.5.2 | any costs and expenses of any third party (including legal costs) which are to be reimbursed by the Company in accordance with paragraphs 2.1 and/or 2.3 were properly incurred and reasonable in amount, |
and where the Company is satisfied that these conditions have been fulfilled, the Company shall make payment to you within 20 Business Days (being a day that is not a Saturday or Sunday or a public holiday in England) of receipt of such application.
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| 3.1.1 | in defending any criminal or civil Proceedings in connection with any alleged negligence, default, breach of duty or breach of trust by you in relation to the Company or an Associated Company; or |
| 3.1.2 | in connection with any Relevant Application. |
3.2 | The Company shall advance any such amount as provided for in paragraph 3.1 (“Advance Amounts”) to you within fourteen days of receiving a notice in writing from you of the amount required, together with such evidence of the costs as the Company may reasonably require. No interest shall accrue on the Advance Amounts. |
3.3 | All Advance Amounts outstanding to you in respect of particular Proceedings shall be repaid by you if: |
| (a) | in respect of criminal Proceedings, you are convicted; |
| (b) | in respect of civil Proceedings, judgement is given against you; or |
| (c) | in respect of any Relevant Application, the court refuses to grant you relief on the application, |
and such outstanding Advance Amounts shall be repaid no later than the date when the conviction, judgement or refusal of relief becomes final (reference in this paragraph 3.3 to a conviction, judgement or refusal of relief being “final” shall be construed in accordance with section 205(3) and (4) of the Act).
3.4 | The Company shall not be required to advance any amount under paragraph 3.1, and any amounts advanced shall become immediately repayable upon demand from the Company, to the extent that the Board reasonably determines that the relevant Proceedings arose out of your Misconduct. |
3.5 | In the event that the relevant Proceedings are either (i) abandoned, withdrawn or discontinued, (ii) settled, (iii) a permanent stay is granted, or (iv) a final determination of the court is made (or Proceedings otherwise finally conclude) without any of the events referred to in paragraph 3.3 (as applicable) occurring (each such conclusion of Proceedings being referred to hereafter as a “Favourable Conclusion”) then the indemnity provided under paragraph 2.1 shall thereafter apply with respect to all legal and other reasonable costs, charges and expenses of those Proceedings as were incurred by you. Any liability of the Company to so indemnify you shall be set-off against any liability of you to repay to the Company any Advance Amounts outstanding in respect of those Proceedings and shall be subject to the exclusions and limitations contained in paragraph 2.2, and paragraph 5 shall be applied (with such changes as are appropriate). |
3.6 | In the event that a Favourable Conclusion is reached in relation to particular Proceedings but any Advance Amount advanced to you in relation to those Proceedings remains outstanding in |
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circumstances where the Company is (for any reason) not liable or is no longer liable to indemnify you in relation to those Proceedings, then all such Advance Amounts which remain outstanding shall be repayable upon demand from the Company. |
The Company shall use all reasonable endeavours to provide and maintain appropriate directors’ and officers’ liability insurance (including ensuring that premiums are properly paid) for your benefit for so long as any Claims may lawfully be brought against you.
5.1 | If you receive any demand relating to a Claim or become aware of any circumstances which might or may be reasonably expected to give rise to the Company being required to indemnify you pursuant to this Deed and before incurring any costs, charges or expenses in respect of any Claim (including securing legal representation), you shall: |
| 5.1.1 | as soon as reasonably practicable, give written notice of the circumstances to the Company, as well as any other information which the Company may reasonably request from time to time; |
| 5.1.3 | forward all documents you receive in respect of such Claim to the Company as soon as reasonably practical following receipt; |
| 5.1.4 | assist the Company as it may reasonably require in resisting, defending or settling the Claim; and |
| 5.1.5 | provide to the Company all such information in relation to any Claim or Liabilities as the Company may reasonably request, and take all such action as the Company may reasonably request. |
5.4 | If the Company or an Associated Company exercises its right pursuant to paragraph 5.3, the Company or relevant Associated Company shall: |
| 5.4.1 | consult with you in relation to the conduct of the Claim or Proceedings on aspects of the Claim or Proceedings materially relevant to you and keep you reasonably informed |
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5.5 | The Company’s obligations owed to you under this Deed (including the obligation to indemnify you in paragraphs 2.1 and 2.3) are conditional upon your compliance with the provisions of this paragraph 5. |
6. | Miscellaneous |
In the event that you cease to be a director or officer (or equivalent position under the laws of any relevant jurisdiction) of the Company or any Associated Company, this Deed shall remain in force and you will continue to be indemnified in accordance with the terms and conditions of this Deed, until such time as any relevant limitation periods for bringing Claims against you have expired, or for so long as you remain liable for any Liabilities, notwithstanding that you may have ceased to be a director or officer (or equivalent position under the laws of any relevant jurisdiction) of the Company or any Associated Company.
6.2 | Payments |
The Company shall, in the event that a payment is made to you under this Deed in respect of a particular Liability, be entitled to recover from you an amount equal to any payment received by you under any policy of insurance or from any other third party source to the extent that such payment relates to the Liability, or if the payment received by you is greater than the payment made under this Deed, a sum equal to the payment made under this Deed. You shall pay over such sum promptly on the Company’s request.
6.3 | Taxation |
The Company shall pay such amount to you as shall after the payment of any tax thereon leave you with sufficient funds to meet any Liability to which this Deed applies. For the avoidance of doubt, when calculating the amount of any such tax the amount of any tax deductions, credits or reliefs which are or may be available to you in respect of the relevant payment under this Deed received by you or any payment made by you to a third party in respect of the relevant Liability will be taken into account. In the event that any amount is paid to you under this Deed but a tax deduction, credit or relief is or becomes available to you in respect of the relevant payment or any payment made by you to a third party in respect of the relevant Liability which was not taken into account in calculating the amount payable in respect of the relevant payment
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under this Deed, you shall make a payment to the Company of such an amount as is equal to the benefit of such deduction, credit or relief which was not taken into account.
6.4 | No Double Recovery |
You shall not be entitled to recover any Liability more than once and in the event that the Company makes payment under this Deed, the Company shall be subrogated to the extent of such payment to all of your rights of recovery against third parties (including any claim under any applicable directors’ and officer’s insurance policy) in respect of the payment and you shall do everything that may be necessary to secure any such rights including:
| 6.4.1 | the execution of any documents necessary to enable the Company effectively to bring an action in your name; and |
| 6.4.2 | the provision of assistance as a witness. |
6.5 | Assignment |
The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Deed, provided that it gives notice of such dealing to you. You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and obligations under this Deed.
6.6 | Entire Agreement |
This Deed constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
If any provision or part-provision of this Deed is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this paragraph 6.7 shall not affect the validity and enforceability of the rest of this Deed. If one party gives notice to the other of the possibility that any provision or part-provision of this Deed is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
| 6.8.1 | Any notice or demand given to a party under or in connection with this Deed: |
| 6.8.1.1 | shall be in writing and in English; |
| 6.8.1.2 | shall be signed by or on behalf of the party giving it; |
| 6.8.1.3 | shall be sent by a method listed in paragraph 6.8.2; and |
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| 6.8.1.4 | is deemed received as set out in paragraph 6.8.2 if prepared and sent in accordance with this paragraph. |
| (a) | if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the address; |
| (b) | if sent by pre-paid first class post or other next working day delivery service, at the time recorded by the delivery service; or |
| (c) | if sent by pre-paid airmail, at the time recorded by the delivery service. |
| 6.8.4 | This paragraph 6.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. |
6.9 | Variation |
| 6.9.1 | No variation of this Deed shall be effective unless it is in writing and signed by the parties (or their authorised representatives). |
| 6.9.2 | No failure or delay by a party to exercise any right or remedy provided under this Deed or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. |
6.10 | Counterparts |
| 6.10.2 | Transmission of an executed counterpart of this Deed (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format), shall take effect as delivery of an executed counterpart of this Deed. |
| 6.10.3 | No counterpart shall be effective until each party has executed and delivered at least one counterpart. |
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Unless this Deed expressly states otherwise, this Deed does not confer any rights on any person or party (other than the parties to this Deed and any Associated Company) pursuant to the Contracts (Rights of Third Parties) Act 1999.
6.12 | Governing Law and Jurisdiction |
[Deliberately left blank, signature page to follow.]
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IN WITNESS WHEREOF, this Deed has been executed as a deed by the Company and you on the day and year first above written.
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