Ex. 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement made and entered into this ___ day of ___,
1998 ("Agreement"), by and between Invitrogen Corporation, a Delaware
corporation (together with any successor or successors and predecessor or
predecessors thereto, the "Company") and [NAME] ("Indemnitee").
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors, officers, employees and agents the most capable persons
available;
WHEREAS, increased corporate litigation has subjected directors, officers,
employees and agents of corporations to litigation risks and expenses and the
limitations on the availability of directors and officers liability insurance
have made it increasingly difficult for the Company to attract and retain such
persons;
WHEREAS, its by-laws permit the Company to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to or revocation of the Company's by-laws or any change in the ownership of the
Company or the composition of its Board of Directors), which indemnification is
intended to be greater than that which is afforded by the Company's certificate
of incorporation, by-laws and, to the extent insurance is available, the
coverage of Indemnitee under the Company' directors and officers liability
insurance policies; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing in Indemnitee's position as an agent of the Company.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS.
(a) "agent" of the Company means any person who is or was a director,
officer, employee or other agent of the Company or a subsidiary of the
Company; or is or was serving at the request of, for the convenience
of, or to represent the interests of the Company or a subsidiary of
the Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of
the Company or a subsidiary of the Company, or was a director,
officer, employee or agent of another enterprise at the request of,
for the convenience of, or to represent the interests of such
predecessor corporation.
1
(b) "Corporate Status" describes the status of a person who is
serving or has served (i) as an agent of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company, or
(iii) as a director, partner, trustee, officer, employee, or agent of
any other Entity as defined below at the request of the Company.
(c) "Entity" shall mean any corporation, partnership, joint venture,
trust, foundation, association, organization or other legal entity and
any group or division of the Company or any of its subsidiaries.
(d) "Expenses" shall mean all reasonable fee, costs and expenses
incurred in connection with any Proceeding (as defined below),
including, without limitation, attorney's fees, disbursements and
retainers (including, without limitation, any such fees, disbursements
and retainers incurred by Indemnitee pursuant to Section 10 of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(e) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those
terms in Section 3(a) below.
(f) "Liabilities" shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(g) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative or investigative,
whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 10 of this Agreement to enforce
Indemnitee's rights hereunder.
2. SERVICES OF INDEMNITEE. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as an
agent of the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee's service to the Company beyond
any period otherwise required by law or by other agreements or commitments of
the parties, if any.
2
3. AGREEMENT TO INDEMNIFY. The Company agrees to indemnify Indemnitee as
follows:
(a) Subject to the exceptions contained in Section 4(a) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the
Company) by reason of Indemnitee's Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as "Indemnifiable Expenses" and "Indemnifiable
Liabilities," respectively, and collectively as "Indemnifiable
Amounts").
(b) Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemnifiable
Expenses.
4. EXCEPTIONS TO INDEMNIFICATION. Indemnitee shall be entitled to
indemnification under Section 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a) and it has
been adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim
for indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company or, with respect to any criminal
action or proceeding, Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) It has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the
Proceeding out of which the claim for indemnification has arisen,
Indemnitee failed to act in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder;
or
(ii) It has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with
respect to any claim, issue or matter involved in the Proceeding
out of which the claim for indemnification has arisen, including,
without limitation, a
3
claim that Indemnitee received an improper personal benefit, no
Indemnifiable Expenses shall be paid with respect to such claim,
issue or matter unless the Court of Chancery or another court in
which such Proceeding 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 Indemnifiable
Expenses which such court shall deem proper.
(c) The Company shall not be obligated to indemnify the Indemnitee
for expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines ERISA excise taxes and penalties, and
amounts paid in settlement) for which payment is actually made to or
on behalf of Indemnitee under a valid and collectible insurance policy
of D&O Insurance, or under a valid and enforceable indemnity clause,
by-law or agreement.
5. PROCEDURE FOR PAYMENT OF INDEMNIFIABLE AMOUNTS. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 of this Agreement and the basis
for the claim. The Company shall pay such Indemnifiable Amounts to Indemnitee
within twenty (20) calendar days of receipt of the request. At the request of
the Company, Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee is
entitled to indemnification hereunder.
6. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
7. EFFECT OF CERTAIN RESOLUTIONS. Neither the settlement or termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not 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
or, with
4
respect to any criminal action or proceeding, had reasonable cause to believe
that Indemnitee's action was unlawful.
8. AGREEMENT TO ADVANCE INTERIM EXPENSES; CONDITIONS. The Company shall
pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of the
Company, in advance of the final disposition of such Proceeding, if Indemnitee
furnishes the Company with a written undertaking to repay the amount of such
Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses. Such undertaking
shall be an unlimited general obligation of Indemnitee, shall be accepted by the
Company without regard to the financial ability of Indemnitee to make repayment,
and in no event shall be required to be secured.
9. PROCEDURE FOR PAYMENT OF INTERIM EXPENSES. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than twenty (20) calendar days after the Company's receipt of such request
and the undertaking required by Section 8.
10. REMEDIES OF INDEMNITEE.
(a) RIGHT TO PETITION COURT. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Section 3 and 5
above or a request for an advancement of Indemnifiable Expenses under
Sections 8 and 9 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this
Agreement, Indemnitee may petition the appropriate judicial authority
to enforce the Company's obligations under this Agreement.
(b) BURDEN OF PROOF. In any judicial proceeding brought under Section
10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts
hereunder.
(c) EXPENSES. The Company agrees to reimburse Indemnitee in full for
any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 10(a) above, or in connection with any claim
or counterclaim brought by the Company in connection therewith.
(d) VALIDITY OF AGREEMENT. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an action
under Section 10(a) above, that the provisions of this Agreement are
not valid,
5
binding and enforceable or that there is insufficient consideration
for this Agreement and shall stipulate in court that the Company is
bound by all the provisions of this Agreement.
(e) FAILURE TO ACT NOT A DEFENSE. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
concerning the permissibility of the payment of Indemnifiable Amounts
or the advancement of Indemnifiable Expenses under this Agreement
shall not be a defense in any action brought under Section 10(a)
above, and shall not create a presumption that such payment or
advancement is not permissible.
11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Indemnitee as follows:
(a) AUTHORITY. The Company has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated
by this Agreement have been duly authorized by the Company.
(b) ENFORCEABILITY. This Agreement, when executed and delivered by
the Company in accordance with the provisions hereof, shall be a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement
of creditors' rights generally.
12. INSURANCE. The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as an agent of the Company and thereafter so
long as the Indemnitee shall be subject to any possible proceeding by reason of
the fact that the Indemnitee was an agent of the Company, the Company will use
its commercially reasonable efforts to obtain and maintain a policy or policies
of insurance with reputable insurance companies providing the Indemnitee with
coverage for losses from wrongful acts, and to ensure the Company's performance
of its indemnification obligations under this Agreement. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee at least 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 the
Indemnitee is not a director of the Company but is an officer; or of the
Company's key employees, if the Indemnitee is not a director or officer but is a
key employee. Notwithstanding the foregoing, if the Company, after employing
commercially reasonable efforts as provided in this section, 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, or if
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit the Company shall use its commercially
reasonable efforts to obtain and
6
maintain a policy or policies of insurance with coverage having features as
similar as practicable to those described above.
13. CONTRACT RIGHTS NOT EXCLUSIVE. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's by-laws or certificate
of incorporation, or any other agreement, vote of stockholders or directors, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity as a result of Indemnitee's serving as a director, officer
or agent of the Company.
14. SUCCESSORS. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
15. SUBROGATION. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
16. CHANGE IN LAW. To the extent that a change in applicable law (whether
by statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the by-laws of the Company and this Agreement,
Indemnitee shall be entitled to such broader indemnification and this Agreement
shall be deemed to be amended to such extent.
17. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this agreement shall remain fully enforceable and binding on the
parties.
18. INDEMNITEE AS PLAINTIFF. Except as provided in Section 10(c) of this
Agreement and in this Section 18, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect to
any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director, officer or agent thereof, or any third party. This
Section shall not apply (i) to counterclaims or affirmative defenses asserted by
7
Indemnitee in an action brought against Indemnitee, (ii) if the Company has
consented to the initiation of such Proceeding, (iii) if such indemnification is
expressly regarded to be made by law or (iv) if such indemnification is provided
by the Company, in its sole discretion, pursuant to the powers vested in the
Company under the General Corporation Laws of Delaware. In addition to the
foregoing, the Company shall not be obligated pursuant to the terms of this
Agreement to indemnify the Indemnitee (i) for any expenses incurred by the
Indemnitee with respect to any proceeding instituted by the 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 by good faith or was frivolous; or (ii) under this
Agreement for any amounts paid in settlement of a proceeding unless the Company
consents to such settlement, which consent shall not be unreasonably withheld.
19. MODIFICATIONS AND WAIVER. Except as provided in Section 16 above with
respect to changes in applicable law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver or any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
20. GENERAL NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed.
(i) If to Indemnitee, to:
[name]
Address:
--------------------------------
--------------------------------
If to the Company, to:
Xxxxxx Xxxxxxxx
Invitrogen Corporation
1600 Faraday
Xxxxxxxx, XX 00000
or to such other address as may have been furnished in the same manner by any
party to the others.
8
21. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced under the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
22. CONSENT TO JURISDICTION. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts of Delaware and the
United States District Court in Delaware. The Company hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Proceeding
arising out of or relating to this Agreement in the courts of Delaware or the
United States District Court in Delaware, and hereby irrevocably and
unconditionally waives and agrees not to plead or claim that any such Proceeding
brought in any such court has been brought in an inconvenient forum.
23. AGREEMENT GOVERNS. This Agreement is to be deemed consistent
wherever possible with relevant provisions of the Company's by-laws and
certificate of incorporation; however, in the event of a conflict between
this Agreement and such provisions, the provisions of this Agreement shall
control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
INVITROGEN CORPORATION
By: ------------------------------------
Xxxx X. Xxxxxx, Chairman, President
& CEO
INDEMNITEE
----------------------------------------
9
