Exhibit 99.7
+ Schedule 5(e) to this Agreement has been omitted because such schedule does
not contain information material to an investment decision, IGEN agrees to
furnish supplementally a copy of such schedule to the Commission upon
request.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made effective as of
November 30, 1996 by and between IGEN International, Inc., a Delaware
corporation (the "Company"), to and for the benefit of Xxxxx X. Xxxxxxxxxxx
("Xxxxxxxxxxx") and JW Consulting Services, L.L.C., a Delaware limited liability
company ("JWCS") (for purposes of this Agreement, Xxxxxxxxxxx, JWCS, and any
other entity through which services are provided to the Company pursuant to the
terms of the Consulting Agreement (as defined below), are referred to
individually and together as "Consultant" or the "Indemnified Party").
W I T N E S S E T H:
WHEREAS, the Company previously engaged Xxxxxxxxxxx to perform consulting
services as an independent contractor to the Company for periods prior to
November 30, 1996 and has engaged Xxxxxxxxxxx to perform consulting services as
an independent contractor to the Company pursuant to the terms of that certain
Consulting Agreement effective as of November 30, 1996 between the Company and
Consultant (the "Consulting Agreement");
WHEREAS, the Consulting Agreement provides that Xxxxxxxxxxx may provide
consulting services directly to the Company, through JWCS or through another
entity which is solely owned by Xxxxxxxxxxx and of which Xxxxxxxxxxx is the sole
employee;
WHEREAS, as an inducement for Consultant's willingness to provide services
pursuant to the Consulting Agreement, the Company has agreed to execute and
deliver this Agreement; and
WHEREAS, the Company and Consultant have each benefited and will each
benefit as a result of certain agreements entered into between such parties in
connection with the Consulting Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions.
-----------
Capitalized terms used herein shall have the meaning defined in the
recitals set forth above or shall have the meaning defined herein. In addition,
the following terms when used with initial capitalization shall have the
following meanings:
"Claim" shall mean any threatened, pending or completed, claim,
action, demand, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal.
"Damages" shall mean any losses, liabilities, damages (including
consequential, special and incidental), claims, demands, judgments, settlements,
fines, penalties, expenses and costs (including Defense Costs).
"Defense Costs" shall mean any costs, charges, bonds, fees and
expenses, including reasonable attorneys' fees and fees of experts and
consultants, reasonably incurred in the investigation, defense or prosecution of
any Claim.
"Person" shall mean an individual, partnership, limited partnership,
corporation, company, association, business trust, limited liability company,
trust, unincorporated association, joint venture, or governmental entity,
authority or agency.
"Third Party" shall mean any trustee, receiver, creditor, contractor,
vendor or service provider to the Company or any other person doing business or
otherwise associated with the Company.
2. Indemnification by the Company; Limitations.
-------------------------------------------
(a) Third Party Claims. The Company shall defend, indemnify and hold
------------------
harmless the Indemnified Party from and against any and all Damages asserted
against or suffered or incurred by the Indemnified Party in connection with any
Claim brought by any Person, including any Third Party, in respect of or
relating to the Company (or any predecessor thereof) or its business, assets,
liabilities or other obligations, including any Claim arising from, relating to
or resulting from any alleged acts or omissions, including any act or omission
of the Indemnified Party related to or arising out of the performance or
non-performance of services to or for the benefit of the Company, whether under
the Consulting Agreement or otherwise,
including without limitation, the performance or non-performance of services to
the Company from and after November 30, 1995.
(b) Reimbursement for and Advancement of Defense Costs. The Company
--------------------------------------------------
shall reimburse the Indemnified Party for any and all Defense Costs relating to
a Claim subject to indemnification under Section 2(a) incurred by the
-----------
Indemnified Party in accordance with Section 3. Defense Costs incurred by the
---------
Indemnified Party shall be paid by the Company in advance of the final
disposition of such Claim, within 20 days after the receipt by the Company of a
statement or statements from the Indemnified Party requesting such advance
payment. In addition, the Indemnified Party may request and receive an advance
for anticipated Defense Costs by submitting to the Company a statement or
statements which shall reasonably evidence the anticipated Defense Costs. Each
statement submitted pursuant to this Section shall include an undertaking by the
Indemnified Party to repay any previously advanced Defense Costs in the event
that it is ultimately determined that the Indemnified Party is not entitled to
indemnification under Section 2(c).
------------
(c) Limitation on Indemnification. Anything to the contrary herein
-----------------------------
notwithstanding, the Company shall not be required hereunder to indemnify the
Indemnified Party for any Damages to the extent the underlying Claim arises from
acts or omissions (i) which constitute intentional misconduct of the Indemnified
Party, (ii) which constitute a knowing violation of law by the Indemnified
Party, or (iii) which are specifically prohibited from being included in an
otherwise enforceable indemnification provision or agreement by the applicable
law of the jurisdiction in question.
(d) No Duplication of Payments. The Company shall not be liable under
--------------------------
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that the Indemnified Party has otherwise actually and
properly received payment of such amounts under any insurance policy, contract,
agreement or otherwise, including any insurance payments received pursuant to
Section 4.
---------
(e) Non-exclusivity. Nothing herein shall be deemed to diminish or
---------------
otherwise restrict the Indemnified Party's right to indemnification under
applicable law, or any other agreement, instrument or document, including any
certificate or articles of incorporation, bylaws, limited liability company
agreement or other governing organizational document (including the
letter agreement dated as of November 30, 1995 between the Company and
Xxxxxxxxxxx relating to indemnification of Xxxxxxxxxxx by the Company in
connection with Xxxxxxxxxxx'x relationship with Meso Scale Diagnostics, LLC.
(the "MSD Indemnification Letter")).
3. Indemnification Procedures.
--------------------------
(a) Notice of Claim. The Indemnified Party shall promptly
---------------
notify the Company in writing of any Claim in respect of which indemnification
could be sought under this Agreement. Such notice shall be given with reasonable
promptness after the Indemnified Party becomes aware of such Claim; provided,
however, that failure to give prompt notice shall not adversely affect or
disqualify any claim for indemnification hereunder except to the extent the
Company is materially prejudiced thereby. Such notice shall specify the nature
of the Claim, the amount of Damages (to the extent such amount is then known to
the Indemnified Party at such time and without prejudice to any right the
Indemnified Party may have to thereafter be indemnified in any greater amount)
and all material information regarding such Claim which is then known to the
Indemnified Party.
(b) Control of Defense by the Indemnified Party. Following
-------------------------------------------
delivery of the notice described in Section 3(a), the Indemnified Party shall
------------
keep the Company fully informed and, unless the Company exercises the right of
control set forth in Section 3(c), shall use its reasonable efforts to contest
------------
and defend such Claim with its own legal counsel and present any defense
reasonably suggested by the Company or its counsel. To the extent the
Indemnified Party controls the defense of such Claim, the Company shall
reimburse or pay the Defense Costs as they are incurred, or advance such Defense
Costs as requested in accordance with Section 2(b). If, in accordance with
------------
Section 3(c), the Company properly elects to assume and control defense of such
------------
Claim, then the Company shall immediately reimburse the Indemnified Party for
any unreimbursed Defense Costs incurred or paid by, or on behalf of, the
Indemnified Party in connection with the defense of such Claim prior to the
receipt by the Indemnified Party of the Assumption and Acknowledgment Notice (as
such term is defined below) relating to such Claim. If the Company assumes and
controls defense of such Claim, the Indemnified Party shall reasonably cooperate
with the Company in such defense. If the Company does not assume and control
defense of such Claim, the Company shall continue to have the right to
participate in the
defense of such Claim (subject to the right of the Indemnified Party to control
the defense of such Claim), at its own expense.
(c) Assumption and Control of Defense by the Company. Subject to
------------------------------------------------
Section 3(d), the Company, upon written notice to the Indemnified Party (the
------------
"Assumption and Acknowledgment Notice") within 30 days after receipt of the
notice described in Section 3(a), may assume and control, at its own expense,
------------
the defense of the Claim with counsel approved by the Indemnified Party (which
approval shall not be unreasonably withheld or delayed). The Assumption and
Acknowledgment Notice shall notify the Indemnified Party of (i) the Company's
intention to assume and control the defense of such Claim and (ii) the Company's
unconditional acknowledgment of its indemnification liability hereunder for the
full amount of Damages arising under or relating to such Claim (unless and to
the extent it is determined based upon information not theretofore made
available to the Company subsequent to such date that the Company is not liable
to indemnify the Indemnified Party pursuant to Section 2(c)). At all times, the
------------
Indemnified Party shall retain the right to approve all pleadings and other
submissions of whatever kind relating to the Claim prior to their filing or
submission (which approval shall not be unreasonably withheld or delayed), and
shall be kept fully informed of all stages of the Claim.
(d) Restrictions on the Company's Ability to Assume and Control
-----------------------------------------------------------
Defense of the Claim. Notwithstanding anything in Section 3(c) to the contrary,
-------------------- ------------
the Company shall not be entitled to control the defense of any Claim if (i) the
Company fails to provide the Assumption and Acknowledgment Notice within 30 days
after receipt of the notice contemplated in Section 3(a), (ii) the Indemnified
------------
Party has reasonably concluded that there may be legal defenses available to the
Indemnified Party that are different from or in addition to those available to
the Company or (iii) the Company has not employed counsel satisfactory to the
Indemnified Party to assume the defense of such Claim within a reasonable time
after receiving notice of the commencement of such Claim. In any such case, the
Indemnified Party shall be entitled to control the defense of such Claim and be
reimbursed in accordance with Section 2(b). Notwithstanding anything contained
------------
herein to the contrary, the Indemnified Party may provide written notice to the
Company that the Indemnified Party prefers that the Company, and therefore
directs and instructs the Company to, assume and control defense of such Claim,
in which case the Company will assume and control defense of such Claim in
accordance with
Section 3(c), and deliver the Assumption and Acknowledgment Notice contemplated
------------
by such Section, as promptly as practicable following receipt of such notice.
The Company's assumption of control of the defense of such Claim pursuant to the
preceding sentence shall not constitute an acknowledgement by the Company of its
indemnification liability under this Agreement.
(e) Continued Participation by the Indemnified Party. If the Company
------------------------------------------------
assumes control of the defense of a Claim in accordance with the provisions of
Sections 3(c) or 3(d), the Indemnified Party may notify the Company in writing
---------------------
that the Indemnified Party thereafter desires to retain separate counsel in
order to participate in or proceed independently with the defense of such Claim,
at the Indemnified Party's own expense; provided that, the Indemnified Party
shall be reimbursed by the Company for the reasonable fees and expenses of such
counsel incurred by the Indemnified Party if (i) the Company, in its discretion,
provides written authorization to the Indemnified Party for the employment of
such counsel and the reimbursement of such fees and expenses, or (ii) there are
legal defenses available to the Indemnified Party that are not available to the
Company, or counsel representing the Company and the Indemnified Party, under
applicable ethical rules and opinions, would be required to seek consent to such
joint representation of the Company and the Indemnified Party.
(f) Settlement of the Claim. If the Indemnified Party desires to
-----------------------
claim indemnification hereunder with respect to the compromise or settlement of
any Claim, as a condition precedent to such indemnification, the Indemnified
Party shall first notify the Company in writing of any firm settlement or
compromise proposal the Indemnified Party receives or intends to make with
respect to such Claim prior to accepting or offering such proposal. The
Indemnified Party shall not settle or compromise any Claim in respect of which
the Indemnified Party is entitled to be indemnified by the Company hereunder
without the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed. The exercise of any right of consent or
withholding of consent under this Section 3(f) shall not affect, excuse, modify
------------
or relieve the Company of any of its obligations under this Agreement.
4. Insurance. The Company hereby agrees to use its best efforts (i) to
---------
cause Consultant to become covered under the Company's liability insurance in
connection with the performance by Consultant of any services to or for the
benefit of the Company, whether pursuant to the Consulting Agreement or
otherwise, at least in the amounts and on the other
terms in effect on the date of execution of this Agreement by the Company, or
(ii) in the event Consultant is not eligible to become covered under the
Company's liability insurance, to purchase new or additional liability insurance
for Consultant with coverage comparable to that provided to the Company's
officers and employees as described in clause (i) in connection with the
performance by Consultant of any services to or for the benefit of the Company,
whether pursuant to the Consulting Agreement or otherwise; provided, however,
that, consistent with the terms of the Consulting Agreement, Consultant shall
not for any reason be represented as or considered an employee of the Company or
as having any official capacity with the Company in connection with the
performance by Consultant of services to or for the benefit of the Company,
whether pursuant to the Consulting Agreement or otherwise, and provided,
--------
further, nothing in this Section 4 is intended or shall be construed to limit or
------- ---------
affect any obligation of the Company with respect to insurance arising under any
other agreement to which Xxxxxxxxxxx and the Company (among others) are parties.
5. Representations and Warranties. The Company hereby represents and
------------------------------
warrants to Consultant as of the date of execution hereof that:
(a) Organization; Good Standing. The Company is a corporation,
---------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and is duly authorized to transact business and is in good
standing in each jurisdiction where the failure to so qualify would have a
material adverse effect on the performance by the Company of its obligations
hereunder.
(b) Authorization. The Company has all requisite corporate power
-------------
and authority to execute, deliver and perform its obligations under this
Agreement.
(c) Non-Contravention. The execution and delivery by the Company
-----------------
of this Agreement and the performance by it of its obligations hereunder have
been duly authorized by all necessary corporate actions and do not and will not:
(i) contravene its certificate of incorporation or by-laws; (ii) conflict with,
result in a breach of or constitute a default under any material contract,
agreement or other instrument to which it is a party or by which it or its
property is bound; or (iii) violate any applicable statute, law, rule,
regulation, writ, injunction, order, decree, judgment or award of any government
authority.
(d) Execution and Binding Effect. This Agreement has been duly
----------------------------
executed and delivered on behalf of the Company and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
(e) Absence of Conflicts. Except to the extent set forth on Schedule
--------------------
5(e), no litigation, arbitration or other proceeding against the Company by or
before any government authority, court, arbitrator or mediator with valid
jurisdiction is in progress, pending or, to the best knowledge of the Company,
threatened against the Company, which challenges the validity of this Agreement
or that is reasonably likely to have a material adverse effect upon (i) the
Company, (ii) the Company's ability to perform its obligations hereunder or
(iii) the validity or enforceability of this Agreement.
(f) Consents and Approvals. The execution and delivery by the Company
----------------------
of this Agreement and the performance by the Company of its obligations
hereunder do not and will not require any approval, consent, permit, license or
other authorization of, or filing or registration with, or any other action by,
any Person (including government approvals) which, as of the date hereof, has
not been duly obtained, made or taken and all such approvals, consents, permits,
licenses, authorizations, filings and registrations have been disclosed to
Consultant and are in full force and effect and, with respect to government
approvals, are final and non-appealable.
6. Events of Default.
-----------------
(a) Events of Default. It shall constitute an event of default
-----------------
hereunder (each, an "Event of Default") with respect to the Company if any of
the following shall occur:
(i) the Company fails to pay all Damages covered by a valid
obligation to provide indemnification hereunder within 30 days after (A) the
Company's receipt of written notice that either a judgment or order in respect
of the Claim giving rise to such Damages has been rendered by a competent
governmental authority and such judgment or order has become final and not
subject to any further appeal, (B) the reaching of a final settlement or
compromise in relation to such Claim in accordance with Section 3(f) hereof, or
------------
(C) the Company waives, whether by affirmative action or inaction, its right to
contest such Claim in any judicial proceeding in accordance with Section 3;
---------
(ii) the Company fails to use reasonable efforts to cause the
removal (by insurance, bond or otherwise) of any lien or encumbrance of record
on the assets of the Indemnified Party arising from, or in connection with, any
Claim which gives rise to a valid obligation to provide indemnification
hereunder within 60 days of receipt of written notice from the Indemnified Party
of the existence of such lien or encumbrance;
(iii) the Company fails to pay, in accordance with Section 2(b),
------------
any Defense Costs incurred by the Indemnified Party in connection with the
contest or defense of any Claim with respect to which the Company is responsible
pursuant to Section 3; or
---------
(iv) the Company breaches any other term or provision of this
Agreement and such breach cannot be cured or is not cured within 30 days after
notice by Consultant to the Company of such breach.
(b) Remedies. If an Event of Default occurs, the Company shall be
--------
considered to have breached this Agreement and, at any time thereafter, the
Indemnified Party may bring suit against the Company to recover any unpaid
amounts or obtain such other relief available to the Indemnified Party at law or
in equity. In the event the Indemnified Party is successful, in whole or in
part, in obtaining any such unpaid amounts or other relief contemplated in this
Section 6(b), the Company shall reimburse the Indemnified Party for all costs
------------
and expenses associated with the efforts of the Indemnified Party to obtain such
relief.
7. Termination. This Agreement shall continue until, and terminate upon
-----------
the latest of: (a) six years after termination or expiration of the Consulting
Agreement; (b) the expiration of any statute of limitations applicable to the
performance of the Consulting Agreement by Consultant, or (c) the final
termination of all pending proceedings in respect of which the Indemnified Party
is granted rights of indemnification or advancement of expenses hereunder and of
any proceeding commenced by the Indemnified Party pursuant to Section 6(b) of
------------
this Agreement relating thereto.
8. Miscellaneous.
-------------
(a) Headings; Interpretation. The headings in this Agreement are
------------------------
intended solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement. All terms defined in this
Agreement include the plural as well
as the singular. Whenever the words "include," "includes" and "including" are
used in this Agreement, they are deemed to be followed by the words "without
limitation."
(b) Severability. If any provision of this Agreement is for any
------------
reason found to be unenforceable, the remainder of this Agreement will continue
in full force and effect.
(c) Entire Agreement; Amendments. This Agreement, together with the
----------------------------
Consulting Agreement, constitute a complete statement of all of the agreements
among the parties as of the date hereof with respect to the matters contemplated
hereby, supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, between them with respect thereto and
cannot be changed or terminated orally. Notwithstanding the foregoing, nothing
in this Agreement shall be deemed to alter, amend, conflict with or otherwise
affect the rights and obligations of the Company and Xxxxxxxxxxx pursuant to the
MSD Indemnification Letter or any other agreement between the Company and
Consultant unrelated to the performance of services by Consultant pursuant to
the Consulting Agreement. The parties hereto have not relied on any statements,
representations, warranties or covenants, whether oral or written, other than
those set forth in this Agreement and the Consulting Agreement.
(d) No Waiver. The failure of a party to insist upon strict adherence
---------
to any term of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right to insist later on adherence thereto, or
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing and signed by the party against
whom enforcement is sought in order to be effective.
(e) Assignment; Successors. This Agreement may not be transferred or
----------------------
assigned by the Company (including by merger or operation of law) without the
prior written consent of Consultant (which consent shall not be unreasonably
withheld or delayed). Without limiting the availability of any remedies at law
or in equity, any attempted transfer or assignment by the Company without the
prior written consent of Consultant (which consent shall not be unreasonably
withheld or delayed) will be void. To the extent this Agreement or any rights or
obligations hereunder are transferred or assigned in a manner that is permitted
by this Agreement, this Agreement shall be binding upon all assigns and
successors in interest of the parties hereto (including any transferee or
assignee of all or substantially all of such party's assets and any successor by
merger or operation of law).
(f) Third Party Beneficiaries. The provisions of this Agreement shall
-------------------------
not confer any rights or remedies upon any person or entity, other than (i)
Consultant and the heirs, executors, legal representatives and assigns of
Consultant, as the case may be, and (ii) the Company and its permitted assigns
and successors in interest.
(g) Notices. All notices, requests, demands and other communications
-------
under this Agreement shall be in writing and shall be deemed to have been duly
given if (i) delivered by hand and receipt of which is acknowledged by the party
to whom said notice or other communication shall have been directed, (ii) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, (iii) sent by overnight courier, when
received and signed for at the appropriate address listed below, or (iv) sent by
facsimile, at the time when received in legible form by the recipient at the
appropriate address listed below and when the recipient has been requested to
acknowledge receipt of the entire telecopier or facsimile transmission upon the
sending or receiving of the acknowledgment of receipt (which acknowledgment the
recipient will promptly give) when received if sent by overnight courier,
addressed as follows:
(A) If to Consultant:
0000X Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
(B) If to the Company:
IGEN International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Ph.D.
Facsimile: (000) 000-0000
or to such other address as a party may specify from time to time by notice
hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Delaware (without reference to the
conflicts of laws principles thereof). The parties hereby consent to the
non-exclusive jurisdiction of the state and federal courts of the State of
Delaware.
(i) Counterparts. This Agreement may be executed and delivered in one
------------
or more counterparts, each of which shall be an original but all of which shall
together constitute a single agreement.
* * *
IN WITNESS WHEREOF, this Agreement has been made as of the date first set
forth above and is duly executed and delivered as of the date shown below.
IGEN International, Inc.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President and Chief Financial Officer
Date of Execution: August 15, 2001
Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------------------
Date of Execution: August 15, 2001
JW CONSULTING SERVICES, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive Officer
Date of Execution: August 15, 2001
