FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.36
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is dated as of __________, 2012, and is
between Ceres, Inc., a Delaware corporation (the “Company”), and ______________ (“Indemnitee”).
RECITALS
A. Indemnitee’s service to the Company substantially benefits the Company.
B. It is essential to the Company to retain and attract as directors and officers the most
capable persons available.
C. In order to induce Indemnitee to continue to provide services to the Company, it is
reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify,
and to advance expenses on behalf of, Indemnitee as permitted by applicable law.
D. This Agreement is a supplement to and in furtherance of the indemnification provided in the
Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, and
any resolutions adopted pursuant thereto, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or abrogate any rights of
Indemnitee thereunder.
The parties therefore agree as follows:
1. Definitions.
(a) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities;
(ii) Change in Board Composition. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Company’s board of directors, and any new directors (other than a
director designated by a person who has entered into an agreement with the Company to effect a
transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the board of
directors or nomination for election by the Company’s stockholders was approved by a vote of at
least two-thirds of the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority of the members of the Company’s board of directors;
(iii) Corporate Transactions. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting securities of
the
surviving entity) more than 50% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or consolidation and with the power to
elect at least a majority of the board of directors or other governing body of such surviving
entity; and
(iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets.
For purposes of this Section 1(a), the following terms shall have the following meanings:
(1) “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended; provided, however, that “Person” shall exclude (i) the Company,
(ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
(2) “Beneficial Owner” shall have the meaning given to such term in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended; provided, however, that “Beneficial Owner” shall
exclude any Person otherwise becoming a Beneficial Owner by reason of (i) the stockholders of the
Company approving a merger of the Company with another entity or (ii) the Company’s board of
directors approving a sale of securities by the Company to such Person.
(b) “Corporate Status” describes the status of a person who is or was a director, trustee,
general partner, managing member, officer, employee, agent or fiduciary of the Company or any other
Enterprise.
(c) “DGCL” means the General Corporation Law of the State of Delaware.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” means the Company and any other corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, trustee, general partner, managing member,
officer, employee, agent or fiduciary.
(f) “Expenses” include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any
appeal resulting from any Proceeding, including without limitation the premium, security for, and
other costs relating to any cost bond, supersedeas bond or other appeal bond or their equivalent,
and (ii) for purposes of Section 12(c), Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company. Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
-2-
(g) “Independent Counsel” means a law firm, or a partner or member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past three (3) years
has been, retained to represent (i) the Company or Indemnitee in any matter material to either such
party (other than as Independent Counsel with respect to matters concerning Indemnitee under this
Agreement, or other indemnitees under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under
this Agreement.
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or proceeding, whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or
otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company,
(ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s part while acting as
a director or officer of the Company, or (iii) the fact that he or she is or was serving at the
request of the Company as a director, trustee, general partner, managing member, officer, employee,
agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving in
such capacity at the time any liability or Expense is incurred for which indemnification or
advancement of expenses can be provided under this Agreement.
(i) Reference to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to any employee benefit
plan; references to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to in this Agreement.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance
with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or
a participant in any Proceeding, other than a Proceeding by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and
in a manner he or she 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 no reasonable cause to believe
that his or her conduct was unlawful.
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened
to be made, a party to or a participant in any Proceeding by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or
matter therein, if
-3-
Indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be
made under this Section 3 in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and
only to the extent that the Delaware Court of Chancery or any court in which the 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 indemnification
for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
4. Indemnification for Expenses of a Party Who is Successful. To the extent that Indemnitee is
a party to or a participant in and is successful (on the merits or otherwise) in defense of any
Proceeding or any claim, issue or matter therein, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith. For purposes of this section, 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.
5. Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of
his or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party,
Indemnitee shall be indemnified to the extent permitted by applicable law against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify
Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to
be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right
of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf
in connection with the Proceeding or any claim, issue or matter therein.
(b) For purposes of Section 6(a), the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include, but not be limited to:
(i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any amendment to or
replacement of the DGCL; and
(ii) the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part
of any Proceeding):
-4-
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or
common law, if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements);
(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee from the sale of securities
of the Company, as required in each case under the Securities Exchange Act of 1934, as amended
(including any such reimbursements that arise from an accounting restatement of the Company
pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the
payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements);
(d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers, employees, agents or other
indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant
part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law,
(iii) otherwise authorized in Section 12(c) or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
8. Advances of Expenses. The Company shall advance the Expenses incurred by Indemnitee in
connection with any Proceeding, and such advancement shall be made as soon as reasonably
practicable, but in any event no later than thirty (30) days, after the receipt by the Company of a
written statement or statements requesting such advances from time to time (which shall include
invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in
connection with legal services, any references to legal work performed or to expenditure made that
would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with
the invoice). Advances shall be unsecured and interest free and made without regard to Indemnitee’s
ability to repay such advances. Indemnitee hereby undertakes to repay any advance to the extent
that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 8 shall not apply to the extent advancement is prohibited by law and shall not apply
to any Proceeding for which indemnity is not permitted under this Agreement, but shall apply to any
Proceeding referenced in Section 7(b) or 7(c) prior to a determination that Indemnitee is not
entitled to be indemnified by the Company.
9. Procedures for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably
practicable following the receipt by Indemnitee of notice thereof. The written notification to the
Company shall include, in reasonable detail, a description of the nature of the Proceeding and the
facts underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve
the Company from any
-5-
liability which it may have to Indemnitee hereunder or otherwise than under
this Agreement, and any delay in so notifying the Company shall not constitute a waiver by
Indemnitee of any rights.
(b) If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof,
the Company has directors’ and officers’ liability insurance in effect, the Company shall give
prompt notice of the commencement of the Proceeding to the insurers in accordance with the
procedures set forth in the applicable policies. The Company shall thereafter take all reasonable
action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of
such Proceeding in accordance with the terms of such policies.
(c) In the event the Company may be obligated to make any indemnity in connection with a
Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election to do so. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not
be liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemnitee
with respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of any
such Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’s
counsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company,
(ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflict
of interest between the Company and Indemnitee in the conduct of any such defense such that
Indemnitee needs to be separately represented, or (iii) the Company shall not have retained, or
shall not continue to retain, such counsel to defend such Proceeding. The Company shall have the
right to conduct such defense as it sees fit in its sole discretion. Regardless of any provision in
this Agreement, Indemnitee shall have the right to employ counsel in any Proceeding at Indemnitee’s
personal expense. The Company shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the Company.
(d) Indemnitee shall give the Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e) The Company shall not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior written consent, which shall not be
unreasonably withheld.
(f) The Company shall have the right to settle any Proceeding (or any part thereof) without
the consent of the Indemnitee; provided that the terms of such settlement include either: (i) a
full release of Indemnitee by the claimant from all liabilities or potential liabilities under such
claim; or (ii), in the event such full release is not obtained, the terms of such settlement do not
limit any indemnification, exoneration or hold harmless rights Indemnitee may now, or hereafter, be
entitled to under this Agreement, the Company’s Amended and Restated Certificate of Incorporation,
Amended and Restated Bylaws, any vote of stockholders or
Disinterested Directors, the DGCL or otherwise.
10. Procedures upon Application for Indemnification.
(a) To obtain indemnification, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is reasonably available to
Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is
entitled
-6-
to indemnification following the final disposition of the Proceeding. Any delay in
providing the request will not relieve the Company from its obligations under this Agreement,
except to the extent such failure is prejudicial.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a
determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case
(i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the
Company’s board of directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change
in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Company’s board of directors, (B) by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even though less than a
quorum of the Company’s board of directors, (C) if there are no such Disinterested Directors or, if
such Disinterested Directors so direct, by Independent Counsel in a written opinion to the
Company’s board of directors, a copy of which shall be delivered to Indemnitee or (D) if so
directed by the Company’s board of directors, by the stockholders of the Company. If it is
determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons
or entity making the determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance request any
documentation or information that is not privileged or otherwise protected from disclosure and that
is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or
expenses (including attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company, to the extent permitted by applicable law.
(c) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(b), the Independent Counsel shall be selected as
provided in this Section 10(c). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Company’s board of directors, and the Company shall give written
notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected.
If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Company’s board of directors,
in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice
of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely objection, the person
so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection is without merit.
If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request
for indemnification pursuant to Section 10(a) hereof and (ii) the final disposition of the
Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or
Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel
and for the appointment as Independent Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as
-7-
Independent Counsel under Section 10(b) hereof.
Upon the due commencement of any judicial proceeding pursuant to Section 12(a) of this Agreement,
the Independent Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then prevailing).
(d) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and
to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
11. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall, to the fullest extent not prohibited by
law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and the
Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome
that presumption in connection with the making by such person, persons or entity of any
determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself create a presumption that
Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account
of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the
Enterprise or its board of directors or counsel selected by any committee of the board of directors
or (iv) information or records given or reports made to the Enterprise by an independent certified
public accountant, an appraiser, investment banker or other expert selected with reasonable care by
the Enterprise or its board of directors or any committee of the board of directors. The provisions
of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(d) Neither the knowledge, actions nor failure to act of any other director, officer, agent or
employee of the Enterprise shall be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
12. Remedies of Indemnitee.
(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 or 12(c)
of this Agreement, (iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 10 of this Agreement within ninety (90) days after the later of the receipt by
the Company of the request for
-8-
indemnification or the final disposition of the Proceeding, (iv) payment of indemnification
pursuant to this Agreement is not made (A) within ten (10) days after a determination has been made
that Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to
Sections 4, 5 and 12(c) of this Agreement, within thirty (30) days after receipt by the Company of
a written request therefor, or (v) the Company or any other person or entity takes or threatens to
take any action to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided
or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication
by a court of competent jurisdiction of his or her entitlement to such indemnification or
advancement of Expenses. The Company shall not oppose Indemnitee’s right to seek any such
adjudication in accordance with this Agreement.
(b) Neither (i) the failure of the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel or stockholders to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor (ii) an actual determination by the Company, its board of
directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders
that Indemnitee has not met the applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the
event that a determination shall have been made pursuant to Section 10 of this Agreement that
Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this
Section 12 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee
shall not be prejudiced by reason of that adverse determination. In any judicial proceeding
commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by
law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) To the fullest extent not prohibited by law, the Company shall be precluded from asserting
in any judicial proceeding commenced pursuant to this Section 12 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any
such court that the Company is bound by all the provisions of this Agreement.
(d) To the extent not prohibited by law, the Company shall indemnify Indemnitee against
all Expenses that are incurred by Indemnitee in connection with any action for indemnification or
advancement of Expenses from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company to the extent Indemnitee is successful in
such action, and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any
event no later than sixty (60) days, after receipt by the Company of a written request therefor)
advance such Expenses to Indemnitee, subject to the provisions of Section 8.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification shall be required to be made prior to the final disposition of the
Proceeding.
13. Contribution. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for
Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any
claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the
-9-
Company and Indemnitee as a result of the events and transactions
giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees
and agents) in connection with such events and transactions.
14. Non-exclusivity. The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Company’s Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. To the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses than would be
afforded currently under the Company’s Amended and Restates Certificate of Incorporation and
Amended and Restated Bylaws and 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, subject
to the restrictions expressly set forth herein or therein. Except as expressly set forth herein, no
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. Except as expressly
set forth herein, the assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or remedy.
15. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received payment for such
amounts under any insurance policy, contract, agreement or otherwise.
16. Insurance. To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, trustees, general partners, managing members,
officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall
be covered by such policy or policies in accordance with its or their terms.
17. Subrogation. In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
18. Services to the Company. Indemnitee agrees to serve as a director or officer of the
Company or, at the request of the Company, as a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is
duly elected or appointed or until Indemnitee tenders his or her resignation or is removed from
such position. Indemnitee may at any time and for any reason resign from such position (subject to
any other contractual obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any
employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and
Indemnitee may be discharged at any time for any reason, with or without cause, with or without
notice, except as may be otherwise expressly provided in any executed, written employment contract
between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing
formal severance policies adopted by the Company’s board of directors or, with
-10-
respect to service as a director or officer of the Company, the Company’s Amended and Restated
Certificate of Incorporation or Amended and Restated Bylaws or the DGCL. No such document
shall be subject to any oral modification thereof.
19. Duration. This Agreement shall continue until and terminate upon the later of (a) ten
years after the date that Indemnitee shall have ceased to serve as a director or officer of the
Company or as a director, trustee, general partner, managing member, officer, employee, agent or
fiduciary of any other Enterprise, as applicable; or (b) one year after the final termination of
any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights
of indemnification or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 12 of this Agreement relating thereto.
20. Successors. This Agreement shall be binding upon the Company and its successors and
assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Company, and shall inure to the
benefit of Indemnitee and Indemnitee’s heirs, executors and administrators.
21. Severability. Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable law. The Company’s
inability, pursuant to court order or other applicable law, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (ii) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (iii) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
22. Enforcement. The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve
as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director or officer of the Company.
23. Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the
Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws and
applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
24. Modification and Waiver. No supplement, modification or amendment to this Agreement shall
be binding unless executed in writing by the parties hereto. No amendment, alteration or repeal of
this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect of
any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such
amendment,
-11-
alteration or repeal. No waiver of any of the provisions of this Agreement shall constitute or
be deemed a waiver of any other provision of this Agreement nor shall any waiver constitute a
continuing waiver.
25. Notices. All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or
electronic mail or otherwise delivered by hand, messenger or courier service addressed:
(a) if to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail address as
shown on the signature page of this Agreement or in the Company’s records, as may be updated in
accordance with the provisions hereof; or
(b) if to the Company, to the attention of the Chief Executive Officer or General Counsel of
the Company at 0000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, or at such other
current address as the Company shall have furnished to Indemnitee, with a copy (which shall not
constitute notice) to Xxxxxxxx Xxxxxxx, Xxxxxxxx & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given (i) if delivered by hand, messenger or courier service, when
delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after deposit with the courier), (ii) if
sent via mail, at the earlier of its receipt or five (5) days after the same has been deposited in
a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed
as aforesaid, (iii) if sent via facsimile, upon confirmation of facsimile transfer, or (iv) if sent
via electronic mail, when directed to the relevant electronic mail address, if sent during normal
business hours of the recipient, or if not sent during normal business hours of the recipient, then
on the recipient’s next business day.
26. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws rules. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Delaware Court of Chancery, and not in
any other state or federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery for purposes
of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to
the extent such party is not otherwise subject to service of process in the State of Delaware,
American Stock Transfer & Trust Company, LLC as its agent in the State of Delaware as such party’s
agent for acceptance of legal process in connection with any such action or proceeding against such
party with the same legal force and validity as if served upon such party personally within the
State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding
in the Delaware Court of Chancery, and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court of Chancery has been brought in an
improper or inconvenient forum.
27. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which together shall constitute one
and the same Agreement. This Agreement may also be executed and delivered by facsimile signature
and in counterparts, each of which shall for all purposes be deemed to be an original but all of
which together
-12-
shall constitute one and the same Agreement. Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
28. Captions. The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the construction
thereof.
(signature page follows)
-13-
The parties are signing this Indemnification Agreement as of the date stated in the
introductory sentence.
| CERES, INC. | ||
| (Signature) | ||
| (Print name) | ||
| (Title) | ||
| [INSERT INDEMNITEE NAME] | ||
| (Signature) | ||
| (Print name) | ||
| (Street address) | ||
| (City, State and ZIP) | ||
| (Facsimile) | ||
| (Email address) |
(Signature page to Indemnification Agreement)
