Indemnification Agreement - Invitrogen Corp. and Thomas H. Adams
INDEMNIFICATION AGREEMENT
This Indemnification Agreement made and entered into this 14 day of
Sept., 2000 ("Agreement"), by and between Invitrogen Corporation, a Delaware
corporation (together with any successor or successors and predecessors
thereto, the "Company") and Thomas H. Adams, Ph.D. ("Indemnitee").
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors, officers, employees and agents the most capable persons
available:
WHEREAS, increased corporate litigation has subjected directors,
officers, employees and agents of corporations to litigation risks and
expenses and the limitations on the availability of directors and officers
liability insurance have made it increasingly difficult for the Company to
attract and retain such persons;
WHEREAS, its by-laws permit the Company to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of the Company's by-laws or any change in the
ownership of the Company or the composition of its Board of Directors) which
indemnification is intended to be greater than that which is afforded by the
Company's certificate of incorporation, by-laws and, to the extent insurance
is available, the coverage of Indemnitee under the Company' directors and
officers liability insurance policies; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing in Indemnitee's position as an agent of the Company.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS.
(a) "agent" of the Company means any person who is or was a
director, officer, employee or other agent of the Company or a
subsidiary of the Company; or is or was serving at the request
of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company as a director, officer,
employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise; or was a
director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Company or
a subsidiary of the Company, or was a director, officer, employee
or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor
corporation.
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(b) "Corporate Status" describes the status of a person who is
serving or has served (i) as an agent of the Company, (ii) in any
capacity with respect to any employee benefit plan of the
Company, or (iii) as a director, partner, trustee, officer,
employee, or agent of any other Entity as defined below at the
request of the Company.
(c) "Entity" shall mean any corporation, partnership, joint
venture, trust, foundation, association, organization or other
legal entity and any group or division of the Company or any of
its subsidiaries.
(d) "Expenses" shall mean all reasonable fee, costs and
expenses incurred in connection with any Proceeding (as defined
below), including, without limitation, attorney's fees,
disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee
pursuant to Section 10 of this Agreement), fees and disbursements
of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and
investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding
costs, telephone and fax transmission charges, postage, delivery
services, secretarial services, and other disbursements and
expenses.
(e) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those
terms in Section 3(a) below.
(f) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in
settlement.
(g) "Proceeding" shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing,
appeal, or any other proceeding, whether civil, criminal,
administrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to
Section 10 of this Agreement to enforce Indemnitee's rights
hereunder.
2. SERVICES OF INDEMNITEE. In consideration of the Company's
covenants and commitments hereunder, Indemnitee agrees to serve or continue
to serve as an agent of the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue Indemnitee's service
to the Company beyond any period otherwise required by law or by other
agreements or commitments of the parties, if any.
3. AGREEMENT TO INDEMNIFY. The Company agrees to indemnify
Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a) below,
if Indemnitee was or is a party or is threatened to be made a
party to any
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Proceeding (other than an action by or in the right of the
Company) by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Company against all Expenses and
Liabilities incurred or paid by Indemnitee in connection with
such Proceeding (referred to herein as "Indemnifiable Expenses"
and "Indemnifiable Liabilities," respectively, and collectively
as "Indemnifiable Amounts").
(b) Subject to the exceptions contained in Section 4(b) below,
if Indemnitee was or is a party or is threatened to be made a
party to any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of Indemnitee's
Corporate Status, Indemnitee shall be indemnified by the Company
against all Indemnifiable Expenses.
4. EXCEPTIONS TO INDEMNIFICATION. Indemnitee shall be entitled to
indemnification under Section 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a) and it
has been adjudicated finally by a court of competent jurisdiction
that, in connection with the subject of the Proceeding out of
which the claim for indemnification has arisen, Indemnitee failed
to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) It has been adjudicated finally by a court of
competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in
good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) It has been adjudicated finally by a court of
competent jurisdiction that Indemnitee is liable to the
Company with respect to any claim, issue or matter
involved in the Proceeding out of which the claim for
indemnification has arisen, including, without limitation,
a claim that Indemnitee received an improper personal
benefit, no Indemnifiable Expenses shall be paid with
respect to such claim, issue or matter unless the Court of
Chancery or another 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, Indemnitee is fairly and
reasonable entitled to indemnity for such Indemnifiable
Expenses which such court shall deem proper.
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(c) The Company shall not be obligated to indemnify the
Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines ERISA excise
taxes and penalties, and amounts paid in settlement) for which
payment is actually made to or on behalf of Indemnitee under a
valid and collectible insurance policy of D&O Insurance or
under a valid and enforceable indemnity clause, by-law or
agreement.
5. PROCEDURE FOR PAYMENT OF INDEMNIFIABLE AMOUNTS. Indemnitee
shall submit to the Company a written request specifying the Indemnifiable
Amounts for which Indemnitee seeks payment under Section 3 of this Agreement
and the basis for the claim. The Company shall pay such Indemnifiable Amounts
to Indemnitee within twenty (20) calendar days of receipt of the request. At
the request of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary to
establish that Indemnitee is entitled to indemnification hereunder.
6. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement, and without
limiting any such provision to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, 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.
7. EFFECT OF CERTAIN RESOLUTIONS. Neither the settlement or
termination of any Proceeding nor the failure of the Company to award
indemnification or to determine that indemnification is payable shall create an
adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendre or its equivalent shall
not create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or proceeding,
had reasonable cause to believe that Indemnitee's action was unlawful.
8. AGREEMENT TO ADVANCE INTERIM EXPENSES; CONDITIONS. The Company
shall pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of the
Company, in advance of the final disposition of such Proceeding, if Indemnitee
furnishes the Company with a written undertaking to repay the amount of such
Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses. Such undertaking
shall be an unlimited general obligation of Indemnitee, shall be accepted by
the Company without regard to
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the financial ability of Indemnitee to make repayment, and in no event shall be
required to be secured.
9. PROCEDURE FOR PAYMENT OF INTERIM EXPENSES. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Expenses
for which Indemnitee seeks an advancement under Section 8 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8 shall
be made no later than twenty (20) calendar days after the Company's receipt of
such request and the undertaking required by Section 8.
10. REMEDIES OF INDEMNITEE.
(a) RIGHT TO PETITION COURT. In the event that Indemnitee
makes a request for payment of Indemnifiable Amounts under
Section 3 and 5 above or a request for an advancement of
Indemnifiable Expenses under Sections 8 and 9 above and the
Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement, Indemnitee may
petition the appropriate judicial authority to enforce the
Company's obligations under this Agreement.
(b) BURDEN OF PROOF. In any judicial proceeding brought
under Section 10((a)) above, the Company shall have the burden
of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) EXPENSES. The Company agrees to reimburse Indemnitee in
full for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling
any action brought by Indemnitee under Section 10((a)) above, or
in connection with any claim or counterclaim brought by the
Company in connection therewith.
(d) VALIDITY OF AGREEMENT. The Company shall be precluded
from asserting in any Proceeding, including without limitation,
an action under Section 10((a)) above, that the provisions of
this Agreement are not valid, binding and enforceable or that
there is insufficient consideration for this Agreement and shall
stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) FAILURE TO ACT NOT A DEFENSE. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable
Expenses under this Agreement shall not be a defense in any
action brought under Section 10((a)) above, and shall not create
a presumption that such payment or advancement is not
permissible.
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11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Indemnitee as follows:
(a) AUTHORITY. The Company has all necessary power and
authority to enter into, and be bound by the terms of, this
Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly
authorized by the Company.
(b) ENFORCEABILITY. This Agreement, when executed and
delivered by the Company in accordance with the provisions
hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors' rights
generally.
12. INSURANCE. The Company hereby covenants and agrees that, so
long as Indemnitee shall continue to serve as an agent of the Company and
thereafter so long as the Indemnitee shall be subject to any possible
proceeding by reason of the fact that Indemnitee was an agent of the Company,
the Company will use its commercially reasonable efforts to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the Indemnitee with coverage for losses from wrongful acts, and to
ensure the Company's performance of its indemnification obligations under
this Agreement. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee at least the same rights and benefits as are accorded to the most
favorably insured of the Company's directors if Indemnitee is a director, or
of the Company's officers if the Indemnitee is not a director but is an
officer; or of the Company's key employees, if the Indemnitee is not a
director or officer but is a key employee. Notwithstanding the foregoing, if
the Company, after employing commercially reasonable efforts as provided in
this section, determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, or if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit the Company
shall use its commercially reasonable efforts to obtain and maintain a policy
or policies of insurance with coverage having features as similar as
practicable to those described above.
13. CONTRACT RIGHTS NOT EXCLUSIVE. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company's by-laws or
certificate of incorporation, or any other agreement, vote of stockholders or
directors, or otherwise, both as to action in Indemnitee's official capacity and
as to action in any other capacity as a result of Indemnitee's serving as a
director, officer or agent of the Company.
14. SUCCESSORS. This Agreement shall be (a) binding upon all
successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock and/or assets of the Company and any
direct or indirect successor by merger or
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consolidation or otherwise by operation of law) and (b) binding on and shall
inure to the benefit of the heirs, personal representatives, executors and
administrators of Indemnitee. This Agreement shall continue for the benefit
of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate Status.
15. SUBROGATION. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee
against other persons, and Indemnitee shall take, at the request of the
Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.
16. CHANGE IN LAW. To the extent that a change in applicable law
(whether by statute or judicial decision) shall permit broader
indemnification than is provided under the terms of the by-laws of the
Company and this Agreement, Indemnitee shall be entitled to such broader
indemnification and this Agreement shall be deemed to be amended to such
extent.
17. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be
illegal, invalid or unenforceable, in whole or in part, such provision or
clause shall be limited or modified in its application to the minimum extent
necessary to make such provision or clause valid, legal and enforceable, and
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
18. INDEMNITEE AS PLAINTIFF. Except as provided in Section 10((c)) of
this Agreement and in this Section 18, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses
with respect to any Proceeding brought by Indemnitee against the Company, any
Entity which it controls, any director, officer or agent thereof, or any
third party. This Section shall not apply (i) to counterclaims or affirmative
defenses asserted by Indemnitee in an action brought against Indemnitee, (ii)
if the Company has consented to the initiation of such Proceeding, (iii) if
such indemnification is expressly regarded to be made by law or (iv) if such
indemnification is provided by the Company, in its sole discretion, pursuant
to the powers vested in the Company under the General Corporation Laws of
Delaware. In addition to the foregoing, the Company shall not be obligated
pursuant to the terms of this Agreement to indemnify the Indemnitee (i) for
any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made by good
faith or was frivolous; or (ii) under this Agreement for any amounts paid in
settlement of a proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld.
19. MODIFICATIONS AND WAIVER. Except as provided in Section 16 above
with respect to changes in applicable law which broaden the right of
Indemnitee to be indemnified by the Company, no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
each of the parties hereto. No waiver or any of the provisions of
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this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement (whether or not similar), nor shall such waiver
constitute a continuing waiver.
20. GENERAL NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail
with postage prepaid, on the third business day after the date on which it is
so mailed:
(i) If to Indemnitee, to:
Name: Thomas H. Adams, Ph.D.
Address:
P.O. Box 3092
Rancho Santa Fe, CA 92024
If to the Company, to:
Law Department
Invitrogen Corporation
1600 Faraday
Carlsbad, CA 92008
or to such other address as may have been furnished in the same manner by any
party to the others.
21. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced under the laws of the State of Delaware without giving effect to
the provisions thereof relating to conflicts of law.
22. CONSENT TO JURISDICTION. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts of Delaware and
the United States District Court in Delaware. The Company hereby irrevocably
and unconditionally waives any objection to the laying of venue of any
Proceeding arising out of or relating to this Agreement in the courts of
Delaware or the United States District Court in Delaware, and hereby
irrevocably and unconditionally waives and agrees not to plead or claim that
any such Proceeding brought in any such court has been brought in an
inconvenient forum.
23. AGREEMENT GOVERNS. This Agreement is to be deemed consistent
wherever possible with relevant provisions of the Company's by-laws and
certificate of incorporation, however, in the event of a conflict between
this Agreement and such provisions, the provisions of this Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
INVITROGEN CORPORATION
By:
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Lyle C. Turner, Chairman, President
& CEO
INDEMNITEE
/s/ Thomas H. Nolan
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