SYMYX TECHNOLOGIES, INC. INDEMNIFICATION AGREEMENT
EXHIBIT
10.26
SYMYX
TECHNOLOGIES, INC.
This
Indemnification Agreement ("Agreement") is effective as of _____,
20__ by and between Symyx Technologies, Inc., a Delaware corporation
(the "Company"), and ______ ("Indemnitee").
WHEREAS,
the Company and Indemnitee desire to have in place the additional protection
provided by an indemnification agreement to provide indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
Delaware law;
below.
(a)
"Change in Control" shall mean, and shall be deemed to have occurred if, on
or
after the date of this Agreement, (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
or
group acting in concert, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity
or a corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company, becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing more than 50% of the total voting power represented by the
Company's then outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director 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 (2/3) 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 a majority thereof, (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation
other than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities
of
the surviving entity) at least 80% of the total voting power represented by
the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the stockholders of
the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series
of
related transactions) all or substantially all of the Company's
assets.
(b)
"Claim" shall mean with respect to a Covered Event: any threatened, pending
or
completed action, suit, proceeding or alternative dispute resolution mechanism,
or any hearing, inquiry or investigation that Indemnitee in good faith believes
might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c)
References to the "Company" shall include, in addition to Symyx Technologies,
Inc., any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger to which Symyx Technologies, Inc. (or
any
of its wholly owned subsidiaries) is a party which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or was
a
director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(d)
"Covered Event" shall mean any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of Indemnitee while serving in such
capacity.
(e)
"Expenses" shall mean any and all expenses (including attorneys' fees and all
other costs, expenses and obligations incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, to be a witness in or to participate in, any action, suit,
proceeding, alternative dispute resolution mechanism, hearing, inquiry or
investigation), judgments, fines, penalties and amounts paid in settlement
(if
such settlement is approved in advance by the Company, which approval shall
not
be unreasonably withheld) of any Claim and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed receipt
of
any payments under this Agreement.
(f)
"Expense Advance" shall mean a payment to Indemnitee pursuant to Section 3
of
Expenses in advance of the settlement of or final judgment in any action, suit,
proceeding or alternative dispute resolution mechanism, hearing, inquiry or
investigation which constitutes a Claim.
(g)
"Independent Legal Counsel" shall mean an attorney or firm of attorneys,
selected in accordance with the provisions of Section 2(d) hereof, who shall
not
have otherwise performed services for the Company or Indemnitee within the
last
three years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other Indemnitees under similar indemnity
agreements).
(h)
References to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on Indemnitee
with
respect to an employee benefit plan; and references to "serving at the request
of the Company" shall include any service as a director, officer, employee,
agent or fiduciary of the Company which imposes duties on, or involves services
by, such director, officer, employee, agent or fiduciary with respect to an
employee benefit plan, its participants or its beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in
the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
(i)
"Reviewing Party" shall mean, subject to the provisions of Section 2(d), any
person or body appointed by the Board of Directors in accordance with applicable
law to review the Company's obligations hereunder and under applicable law,
which may include a member or members of the Company's Board of Directors,
Independent Legal Counsel or any other person or body not a party to the
particular Claim for which Indemnitee is seeking indemnification.
(j)
"Section" refers to a section of this Agreement unless otherwise
indicated.
(k)
"Voting Securities" shall mean any securities of the Company that vote generally
in the election of directors.
binding
on the Company and Indemnitee.
3.
Expense Advances.
(a)
Obligation to Make Expense Advances. Upon receipt of a written undertaking
by or
on behalf of the Indemnitee to repay such amounts if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified therefore
by
the Company hereunder under applicable law, the Company shall make Expense
Advances to Indemnitee.
(b)
Form of Undertaking. Any obligation to repay any Expense Advances hereunder
pursuant to a written undertaking by the Indemnitee shall be unsecured and
no
interest shall be charged thereon.
(c)
Determination of Reasonable Expense Advances. The parties agree that for the
purposes of any Expense Advance for which Indemnitee has made written demand
to
the Company in accordance with this Agreement, all Expenses included in such
Expense Advance that are certified by affidavit of Indemnitee's counsel as
being
reasonable shall be presumed conclusively to be reasonable.
(a)
Timing of Payments. All payments of Expenses (including without limitation
Expense Advances) by the Company to the Indemnitee pursuant to this Agreement
shall be made to the fullest extent permitted by law as soon as practicable
after written demand by Indemnitee therefor is presented to the Company, but
in
no event later than thirty (30) business days after such written demand by
Indemnitee is presented to the Company, except in the case of Expense Advances,
which shall be made no later than ten (10) business days after such written
demand by Indemnitee is presented to the Company.
(b)
Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent
to
Indemnitee's right to be indemnified or Indemnitee's right to receive Expense
Advances under this Agreement, give the Company notice in writing as soon as
practicable of any Claim made against Indemnitee for which indemnification
will
or could be sought under this Agreement. Notice to the Company shall be directed
to the Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee's power.
(a)
Scope. The Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company's
Certificate of Incorporation, the Company's Bylaws or by statute. In the event
of any change after the date of this Agreement in any applicable law, statute
or
rule which expands the right of a Delaware corporation to indemnify a member
of
its board of directors or an officer, employee, agent or fiduciary, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement
the
greater benefits afforded by such change. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations hereunder except
as set forth in Section 10(a) hereof.
(b)
Nonexclusivity. The indemnification and the payment of Expense Advances provided
by this Agreement shall be in addition to any rights to which Indemnitee may
be
entitled under the Company's Certificate of Incorporation, its Bylaws, any
other
agreement, any vote of stockholders or disinterested directors, the General
Corporation Law of the State of Delaware, or otherwise. The indemnification
and
the payment of Expense Advances provided under this Agreement shall continue
as
to Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though subsequent thereto Indemnitee may have ceased to serve
in
such capacity.
8.
Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future
to
undertake with the Securities and Exchange Commission to submit the question
of
indemnification to a court in certain circumstances for a determination of
the
Company's right under public policy to indemnify Indemnitee.
(a)
Excluded Action or Omissions. To indemnify or make Expense Advances to
Indemnitee with respect to Claims arising out of acts, omissions or transactions
for which Indemnitee is prohibited from receiving indemnification under
applicable law.
(b)
Claims Initiated by Indemnitee. To indemnify or make Expense Advances to
Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee
and not by way of defense, counterclaim or crossclaim, except (i) with respect
to actions or proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other agreement or insurance policy
or under the Company's Certificate of Incorporation or Bylaws now or hereafter
in effect relating to Claims for Covered Events, (ii) in specific cases if
the
Board of Directors has approved the initiation or bringing of such Claim, or
(iii) as otherwise required under Section 145 of the Delaware General
Corporation Law, regardless of whether Indemnitee ultimately is determined
to be
entitled to such indemnification, Expense Advances, or insurance recovery,
as
the case may be.
frivolous.
(d)
Claims Under Section 16(b). To indemnify Indemnitee for Expenses and the payment
of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or any similar successor statute.
13.
Expenses Incurred in Action Relating to Enforcement or Interpretation. In the
event that any action is instituted by Indemnitee under this Agreement or under
any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled
to be
indemnified for all Expenses incurred by Indemnitee with respect to such action
(including without limitation attorneys' fees), regardless of whether Indemnitee
is ultimately successful in such action, unless as a part of such action a
court
having jurisdiction over such action makes a final judicial determination (as
to
which all rights of appeal therefrom have been exhausted or lapsed) that each
of
the material assertions made by Indemnitee as a basis for such action was not
made in good faith or was frivolous; provided, however, that until such final
judicial determination is made, Indemnitee shall be entitled under Section
3 to
receive payment of Expense Advances hereunder with respect to such action.
In
the event of an action instituted by or in the name of the Company under this
Agreement to enforce or interpret
any of the terms of this Agreement, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee in defense of such action
(including without limitation costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as
a
part of such action a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was frivolous; provided, however, that
until such final judicial determination is made, Indemnitee shall be entitled
under
Section 3 to receive payment of Expense Advances hereunder with respect to
such
action.
16.
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 commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall
be
the exclusive and only proper forum for adjudicating such a claim.
18.
Choice of Law. This Agreement, and all rights, remedies, liabilities, powers
and
duties of the parties to this Agreement, shall be governed by and construed
in
accordance with the laws of the State of Delaware as applied to contracts
between Delaware residents entered into and to be performed entirely in the
State of Delaware without regard to principles of conflicts of
laws.
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
SYMYX
TECHNOLOGIES, INC.
By:
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XXX
XXXXXXXXXX
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CHIEF
EXECUTIVE OFFICER
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Address:
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0000
Xxxxxxx Xxxxxxxxxx
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Xxxxx
Xxxxx, XX 00000
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AGREED
TO AND ACCEPTED
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INDEMNITEE:
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