Exhibit 10.8
INDEMNITY AGREEMENT
This Indemnity Agreement is made this 13th day of March, 2003, by and
between IGEN International, Inc., a Delaware corporation (the "Company"), and
_______________________ ("Indemnitee").
W I T N E S S E T H:
WHEREAS, the Company and Indemnitee desire to enter into this
Agreement, which is intended to replace any indemnification agreement that may
exist between Indemnitee and the Company.
NOW, THEREFORE, the Company and Indemnitee for good and valuable
consideration, the receipt of which is hereby acknowledged, hereby agree as
follows:
1. DEFINITIONS Capitalized terms used herein shall have the meaning as set
forth below:
a. "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.
b. "Damages" shall mean any losses, liabilities, damages or any nature
(including consequential, special and incidental), claims, demands,
judgments, amounts paid in settlements, fines, penalties, expenses and
costs, ERISA excise taxes. Without limiting the generality of the
foregoing, Damages shall include any and all Defense Costs.
c. "Defense Costs" shall mean any costs, charges, bonds, fees,
expenses, including reasonable attorneys' fees and fees of experts,
consultants, witnesses and court costs, incurred in the investigation,
defense or prosecution of any Claim.
d. "Final Adjudication" shall mean final judicial decision in a court
of competent jurisdiction from which there is no further right to appeal.
e. "Person" shall mean any individual, partnership, limited
partnership, corporation, company association, business trust, employee
benefit or retirement plan or trust, limited liability company, trust
unincorporated association, joint venture, enterprise of any nature
(whether incorporated or unincorporated) that is capable of suing or being
sued or that is recognized or recognizable in a court of law or equity as a
"person", or any government entity, authority or agency.
f. "Third Party" shall mean any trustee, receiver, creditor,
contractor, vendor, insurance carrier, service provider to the Company or
any other person doing business or otherwise associated with the Company in
any capacity.
g. "Undertaking" shall have the meaning as set forth in Section 3.
2. RIGHT TO INDEMNIFICATION. The Company shall defend, indemnify and hold
harmless Indemnitee from and against any and all Damages asserted against or
suffered or incurred by the Indemnitee in connection with any Claim brought by
any Person, including any Third Party, in respect of, relating to, or by reason
of the fact that the Indemnitee is or was a director, officer, manager,
employee, agent or representative of the Company or is or was serving at the
request of the Company as a director, officer, manager, employee or agent of
another Person, whether the basis of such Claim is alleged action or inaction in
an official capacity as a director, officer, manager, employee, agent or
representative or in any other capacity while serving as a director, officer,
manager, employee, agent or representative, to the fullest extent permitted by
applicable law, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than permitted prior thereto),
and such indemnification shall continue after Indemnitee has ceased to be a
director, officer, manager, employee agent or representative and shall inure to
the benefit of Indemnitee's heirs, executors, trustees and administrators;
provided, however, that, except as provided in Section 4 hereof with respect to
proceedings to enforce rights to indemnification and advancement of Defense
Costs, the Company shall indemnify Indemnitee in connection with any Claim (or
part thereof) initiated by Indemnitee only if such Claim (or part thereof) was
authorized by the board of directors of the Company.
3. RIGHT TO ADVANCEMENT OF DEFENSE COSTS. In addition to the right to
indemnification conferred in Section 2 hereof, an Indemnitee shall have the
right to be paid by the Company, in advance of Final Adjudication, all Defense
Costs as incurred by Indemnitee in connection with any Claim for which right to
indemnification is applicable under this Agreement. Defense Costs shall be paid
by the Company not later than thirty (30) days after receipt by the Company of a
statement of expenses from the Indemnitee requesting such payment, which request
shall be supported by a statement of costs; provided, however, that, if the
Delaware General Corporation Law requires, an advancement of Defense Costs
incurred by Indemnitee in Indemnitee's capacity as a director or officer (and
not in any other capacity in which service was or is rendered by Indemnitee,
including, without limitation, as an employee, manager, agent or for service to
an employee benefit plan) shall be made only upon delivery to the Company of an
undertaking (hereinafter an "Undertaking"), by or on behalf of Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by Final
Adjudication that Indemnitee is not entitled to be indemnified for such Defense
Costs under this Agreement or otherwise.
4. RIGHT OF INDEMNITEE TO BRING SUIT. (a) If a claim by Indemnitee to the
Company for indemnification under Section 2 of this Agreement is not paid in
full by the Company within sixty (60) days after a written claim has been
received by the Company, or if a claim by the Indemnitee to the Company for an
advancement of Defense Costs under Section 3 of this Agreement is not paid in
full within thirty (30) days as specified in Section 3, Indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claims.
(b) If Indemnitee is successful in whole or in part in any suit
brought under Section 4(a), or in a suit brought by the Company to recover
an advancement of Defense Costs pursuant to the terms of an Undertaking,
Indemnitee shall be entitled to be paid also all costs and expenses
(including without limitation all reasonable attorneys' fees, court costs,
witness fees) of prosecuting or defending such suit.
(c) In any suit brought by Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by Indemnitee to
enforce a right under Section 3 to an advancement of Defense Costs) it
shall be a defense that it has been determined by Final Adjudication that
Indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law.
(d) In any suit against Indemnitee by the Company to recover an
advancement of Defense Costs pursuant to the terms of an Undertaking, the
Company shall be entitled to recover such Defense Costs only upon a Final
Adjudication that Indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
(e) Neither the failure of the Company (including its directors who
are not parties to such action, a committee of such directors, independent
legal counsel, or its stockholders) to have made a determination prior to
the commencement of such suit that indemnification of Indemnitee is proper
in the circumstances because Indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Company (including its directors who are not parties
to such action, a committee of such directors, independent legal counsel,
or its stockholders) that Indemnitee has not met such applicable standard
of conduct, shall create a presumption that Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
Indemnitee, be a defense to such suit. In any suit brought by Indemnitee to
enforce a right to indemnification or to an advancement of Defense Costs
hereunder, or by the Company to recover an advancement of Defense Costs
pursuant to the terms of an Undertaking, the burden of proving that
Indemnitee is not entitled to be indemnified, or to such advancement of
Defense Costs, under this Agreement or otherwise, shall be on the Company
by clear and convincing evidence.
5. SETTLEMENT. The Company shall have no obligation to indemnify Indemnitee
under this Agreement for any amounts paid in full settlement and/or compromise
of any Claim that was effected without Company's prior written consent. The
Company shall not enter into any full settlement and/or compromise of any Claim
in any manner that would impose any Damages on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee shall unreasonably withhold,
condition or delay their consent to any proposed settlement or compromise. The
exercise of any right of consent or withholding of consent under this Section 5
shall not affect, excuse, modify or relieve the Company of any of its
obligations under this Agreement.
6. MAINTENANCE OF INSURANCE. (a) The Company hereby represents and warrants
that policies of directors' and officers' liability insurance ("D&O Insurance")
have been purchased by the Company and that such policies are in full force and
effect. The Indemnitee acknowledges that he has been informed of, and provided
access to, the D&O Policies.
(b) The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as a director or officer of the Company
and thereafter so long as Indemnitee shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether
civil, criminal or investigative, by reason of the fact that Indemnitee was
a director or officer of the Company, the Company, subject to Section 2(d),
shall maintain in full force and effect D&O Insurance.
(c) In all policies of D&O Insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and
benefits, subject to the same limitations, as are accorded to the Company's
directors or officers most favorably insured by such policy.
(d) The Company shall have no obligation to maintain D&O Insurance if
the Company determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance is disproportionate to the
amount of coverage provided, or the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit.
7. RIGHTS NOT EXCLUSIVE. The rights provided hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under any
bylaw, agreement, vote of stockholders or of disinterested directors or
otherwise, both as to action in his official capacity and as to action in any
other capacity, and shall continue after Indemnitee ceases to serve the Company
as a director, officer, employee as the case may be.
8. SEVERABILITY. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act that
is in violation of applicable law, such provision shall be limited or modified
in its application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
9. CHOICE OF LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
10. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
11. SUCCESSOR AND ASSIGNS. This Agreement shall be (i) binding upon all
successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law) and (ii) shall be binding on and inure to the benefit of the
heirs, personal representatives and estate of Indemnitee.
12. AMENDMENT OR WAIVER. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto, and no waiver of any provision hereunder
shall be effective unless in writing.
IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the day and year first above written.
IGEN INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
[INDEMNITEE]
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