FORM OF INDEMNIFICATION AGREEMENT
EXHIBIT
10.8
FORM
OF
INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is made as of December _____, 2006, by and between CombiMatrix
Corporation, a Delaware corporation (the “Company”), and _________________., one
of the Directors of the Company (the “Indemnitee”),
with
reference to the following facts:
R
E C I T
A L S:
The
Indemnitee is currently serving as a Director of the Company and the Company
wishes the Indemnitee to continue in such capacity. The Indemnitee is willing,
under certain circumstances, to continue serving as a Director of the Company.
Section
145 of the General Corporation Law of the State of Delaware, under which Law
the
Company is organized, empowers corporations to indemnify a person serving as
a
director, officer, employee or agent of the corporation and a person who serves
at the request of the corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust, or other enterprise,
and
said Section 145 specifies that the indemnification set forth in said Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
In
order
to induce the Indemnitee to continue to serve as a Director of the Company
and
in consideration of his continued service, the Company has determined and agreed
to enter into this agreement with the Indemnitee.
NOW,
THEREFORE, in consideration of the Indemnitee’s continued service as a Director
of the Company, the parties hereto agree as follows:
INDEMNITY.
The Company will indemnify the Indemnitee, his executors, administrators or
assigns, for any Damages or Expenses (as defined below) which the Indemnitee
is
or becomes legally obligated to pay in connection with any Proceeding. As used
in this Agreement the term “Proceeding” shall include any threatened, pending or
completed claim, action, suit or proceeding, whether brought by or in the right
of the Company or otherwise and whether of a civil, criminal, administrative
or
investigative nature, in which the Indemnitee may be or may have been involved
as a party or otherwise, by reason of the fact that Indemnitee is or was a
director or officer of the Company, by reason of any actual or alleged error
or
misstatement or misleading statement or omission made or suffered by the
Indemnitee, by reason of any action taken by him or of any inaction on his
part
while acting as such director or officer, or by reason of the fact that the
Indemnitee was serving at the request of the Company as a director, trustee,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; provided, that in each such case Indemnitee acted
in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Company, and, in the case of a criminal proceeding,
in addition had no reasonable cause to believe that his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that such Indemnitee
did
not act in good faith and in a manner which he 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 reasonable cause to believe that his conduct
was unlawful. As used in this Agreement, the term “other enterprise” shall
include (without limitation) employee benefit plans and administrative
committees thereof, and the term “fines” shall include (without limitation) any
excise tax assessed with respect to any employee benefit plan. References to
“serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation 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 if such
Indemnitee acted in good faith and in a manner he reasonably believed to be
in
the interest of the participants and beneficiaries of an employee benefit plan
he shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to above.
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EXPENSES.
As used in this Agreement, the term “Expenses” shall include, without
limitation, damages, judgments, fines, penalties, settlements and costs,
attorneys’ fees and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement and the term “Damages” shall include damages, judgments,
fines, penalties and settlements.
ENFORCEMENT.
If a claim or request under this Agreement is not paid by the Company, or on
its
behalf, within thirty days after a written claim or request has been received
by
the Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim or request and if successful
in whole or in part, the Indemnitee shall be entitled to be paid also the
Expenses of prosecuting such suit. The Company shall have the right to recoup
from the Indemnitee the amount of any item or items of Expenses (other than
Damages) theretofore paid by the Company pursuant to this Agreement, to the
extent such Expenses are not reasonable in nature or amount; provided, however,
that the Company shall have the burden of proving such Expenses to be
unreasonable. The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the Company.
SUBROGATION.
In the event that the Company pays any Expenses under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring
suit to enforce such rights.
EXCLUSIONS.
Notwithstanding the foregoing, the Company shall not be liable under this
Agreement to pay any Expenses in connection with any Proceeding:
to
the
extent that payment of such Expenses is actually made to the Indemnitee under
a
valid, enforceable and collectible insurance policy;
to
the
extent that the Indemnitee is indemnified and actually paid otherwise than
pursuant to this Agreement;
in
connection with a judicial action by or in the right of the Company, in respect
of any claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or the 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, the Indemnitee
is
fairly and reasonably entitled to indemnity for such Expenses as such court
shall deem proper;
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if
it is
proved by final judgment in a court of law or other final adjudication that
the
Indemnitee had in fact gained any personal profit or advantage to which he
was
not legally entitled;
for
a
disgorgement of profits made from the purchase and sale by the Indemnitee of
securities pursuant to Section 16(b) of the Securities Exchange Act of 1934
and
amendments thereto or similar provisions of any state statutory law or common
law;
brought
about or contributed to by the dishonesty of the Indemnitee seeking payment
hereunder; however, notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any Proceeding brought against him by
reason of any alleged dishonesty on such Indemnitee’s part, unless a judgment or
other final adjudication thereof adverse to such Indemnitee shall establish
that
he committed (i) acts of active and deliberate dishonesty, (ii) with actual
dishonest purpose and intent and (iii) such acts were material to the cause
of
action so adjudicated; or
for
any
Damages which the Company is prohibited by applicable law from paying as
indemnity.
INDEMNIFICATION
OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits
or otherwise in defense of any Proceeding or in defense of any claim, issue
or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses actually and reasonably incurred in
connection therewith.
PARTIAL
INDEMNIFICATION. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of Expenses,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
ADVANCE
OF EXPENSES. Expenses incurred by the Indemnitee in connection with any
Proceeding, except the amount of any Damages, shall be paid by the Company
in
advance of the final disposition thereof upon request of the Indemnitee that
the
Company pay such Expenses. The Indemnitee hereby undertakes to repay to the
Company the amount of any Expenses theretofore paid by the Company to the extent
that it is ultimately determined that such Expenses were not reasonable or
that
the Indemnitee is not entitled to indemnification therefor.
APPROVAL
OF PAYMENT OF DAMAGES. No payment of Damages for which indemnity shall be sought
under this Agreement, other than those in respect of judgments and verdicts
actually rendered, shall be incurred without the prior consent of the Company,
which consent shall not be unreasonably withheld.
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NOTICE
OF
CLAIM. The Indemnitee, as a condition precedent to his right to be indemnified
under this Agreement, shall give to the Company notice in writing as soon as
reasonably practicable of any Proceeding against any of him for which indemnity
will or could be sought under this Agreement. Notice to the Company shall be
given at its principal office and shall be directed to the Corporate Secretary
(or such other address as the Company shall designate in writing to the
Indemnitee); notice shall be deemed given on the earlier of the date of receipt
or the seventh day after it is sent by properly addressed, prepaid registered
or
certified mail, return receipt requested. In addition, the Indemnitee shall
give
the Company such information and cooperation as it may reasonably require and
as
shall be within the Indemnitee’s power.
COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which
taken
together shall constitute one instrument.
INDEMNIFICATION
HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed to diminish or otherwise
restrict the Indemnitee’s right to indemnification under any provision of the
Certificate of Incorporation or By-Laws of the Company and amendments thereto
or
under law.
GOVERNING
LAW. This Agreement shall be governed by and construed in accordance with
Delaware law.
SAVING
CLAUSE. Wherever there is conflict between any provision of this Agreement
and
any applicable present or future statute, law or regulation contrary to which
the Company and the Indemnitee have no legal right to contract, the latter
shall
prevail, but in such event the affected provisions of this Agreement shall
be
curtailed and restricted only to the extent necessary to bring them within
applicable legal requirements.
COVERAGE.
The provisions of this Agreement shall apply with respect to the Indemnitee’s
service as a Director of the Company prior to the date of this Agreement and
with respect to all periods of such service after the date of this Agreement,
even though such Indemnitee may have ceased to be a Director of the Company
and
shall inure to the benefit of the heirs, executors and administrators of the
Indemnitee.
SURVIVAL
OF AGREEMENT. For purposes of this Agreement, any reference to the Company”
shall include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees
or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Agreement with respect to
the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the day and year first above written.
|
COMBIMATRIX CORPORATION,
a Delaware corporation
|
|
| By: ____________________________________________ | |
| [Name] | |
| Its: [Title] | |
| INDEMNITEE: | |
| ___________________________________________ | |
| [Name] |
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