EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), is entered into and
made effective this ___ day of ________, 1999, by and between Deltagen, Inc., a
Delaware corporation (the "Corporation"), and ________________________ (the
"Indemnitee").
W I T N E S S E T H:
WHEREAS, Indemnitee is a member of the board of directors of the
Corporation (the "Board of Directors") or is an officer of the Corporation, and
in such capacity is performing a valuable service for the Corporation; and
WHEREAS, Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Corporation on the condition that he
or she be indemnified as herein provided; and
WHEREAS, it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein:
NOW THEREFORE, in consideration of the premises and the covenants in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a
director or officer of the Corporation so long as he or she is duly appointed or
elected and qualified in accordance with the applicable provisions of the
Amended and Restated Certificate of Incorporation, as amended (the "Restated
Certificate of Incorporation"), and Bylaws of the Corporation or any subsidiary
of the Corporation and until such time as he or she resigns or fails to stand
for election or is removed from his or her position. Indemnitee may at any time
and for any reason resign or be removed from such position (subject to any other
contractual obligation or other obligation imposed by operation of law), in
which event the Corporation shall have no obligation under this Agreement to
continue Indemnitee in any such position.
2. INDEMNIFICATION.
(a) The Corporation shall indemnify Indemnitee against Expenses
and Liabilities in connection with any Proceeding arising out of acts or
omissions of Indemnitee occurring during Indemnitee's service as a director or
as an officer of the Corporation to the fullest extent permitted by applicable
law or the Restated Certificate of Incorporation of the Corporation in effect on
the date hereof or as such law or Restated Certificate of Incorporation may from
time to time be amended (but, in the case of any such amendment, only to the
extent such amendment permits the Corporation to provide broader indemnification
rights than the law or Restated Certificate of Incorporation permitted the
Corporation to provide before such amendment). The right to indemnification
provided in the Restated Certificate of Incorporation shall be presumed to have
been relied upon by Indemnitee in serving or continuing to serve the Corporation
and shall be enforceable as a contract right. Without diminishing the scope of
the indemnification provided by this Section 2, the Corporation shall indemnify
Indemnitee whenever he or she is or was a party or is threatened to be made a
party to any Proceeding, including without limitation any such Proceeding
brought by or in the right of the Corporation, because he or she is or was a
director or officer of the Corporation or because of anything done or not done
by Indemnitee in such capacity, against Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with
such Proceeding, including the costs of any investigation, defense, settlement
or appeal, except that no indemnification shall be made with respect to any
claim, issue or matter if Indemnitee was finally adjudged to be liable to the
Corporation by a court of competent jurisdiction due to his or her gross
negligence or willful misconduct unless and to the extent that a Delaware Court
of Chancery or the court in which the action was heard determines that
Indemnitee is entitled to indemnification for such amounts as the court deems
proper. In addition to, and not as a limitation of, the foregoing, the rights of
indemnification of Indemnitee provided under this Agreement shall include those
rights set forth in ▇▇▇▇▇▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇▇ ▇▇▇▇▇.
(▇) Indemnitee shall be paid promptly by the Corporation all
amounts necessary to effectuate the foregoing indemnity.
3. ADVANCEMENT OF EXPENSES. All reasonable Expenses incurred by
or on behalf of Indemnitee shall be advanced from time to time by the
Corporation to Indemnitee within thirty (30) days after the Corporation's
receipt of a written request for an advance of Expenses, whether prior to or
after final disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination that Indemnitee is not entitled to be
indemnified for such Expenses), including without limitation any Proceeding
brought by or in the right of the Corporation. The written request for an
advancement of any and all Expenses under this paragraph shall contain
reasonable detail of the Expenses incurred by Indemnitee. If required by law at
the time of such advance, Indemnitee hereby agrees to repay the amounts advanced
if it is ultimately determined that Indemnitee is not entitled to be indemnified
pursuant to the terms of this Agreement.
4. LIMITATIONS. The foregoing indemnity and advancement of
Expenses shall apply only to the extent that Indemnitee has not been indemnified
and reimbursed pursuant to such insurance as the Corporation may maintain for
Indemnitee's benefit, or otherwise; provided, however, that notwithstanding the
availability of such other indemnification and reimbursement, Indemnitee may
claim indemnification and advancement of Expenses pursuant to this Agreement by
assigning to the Corporation, at its request, Indemnitee's claims under such
insurance to the extent Indemnitee has been paid by the Corporation.
5. INSURANCE AND FUNDING. The Corporation may purchase and
maintain insurance to protect itself and/or Indemnitee against any Expenses and
Liabilities in connection with any Proceeding to the fullest extent permitted by
applicable laws. The Corporation may create a trust fund, grant an interest or
use other means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect indemnification or
advancement of Expenses as provided in this Agreement.
6. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Indemnitee believes that he or she is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. Any request for indemnification
shall include sufficient documentation or
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information reasonably available to Indemnitee to support his or her claim for
indemnification. Indemnitee shall submit such claim for indemnification within a
reasonable time not to exceed five years after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of nolo
contendere or its equivalent, final termination or other disposition or partial
disposition of any Proceeding, whichever is the later date for which Indemnitee
requests indemnification. The President or the Secretary or other appropriate
officer shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request. Determination of Indemnitee's entitlement to indemnification
shall be made not later than ninety (90) days after the Corporation's receipt of
his or her written request for such indemnification.
(b) The Indemnitee shall be entitled to select the forum in which
Indemnitee's request for indemnification will be heard, which selection shall be
included in the written request for indemnification required in Section 6(a).
The forum shall be any one of the following:
(i) The stockholders of the Corporation;
(ii) A quorum of the Board of Directors consisting of
Disinterested Directors;
(iii) Independent Legal Counsel, who shall make the
determination in a written opinion; or
(iv) A panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two
arbitrators selected. If for any reason three arbitrators are not
selected within thirty (30) days after the appointment of the first
arbitrator, then selection of additional arbitrators shall be made by
the American Arbitration Association. If any arbitrator resigns or is
unable to serve in such capacity for any reason, the American
Arbitration Association shall select such arbitrator's replacement. The
arbitration shall be conducted pursuant to the commercial arbitration
rules of the American Arbitration Association now in effect.
If Indemnitee fails to make such designation, his or her claim shall be
determined by an appropriate court of the State of Delaware.
7. FEES AND EXPENSES OF INDEPENDENT LEGAL COUNSEL. The
Corporation agrees to pay the reasonable fees and expenses of Independent Legal
Counsel or a panel of three arbitrators should such Counsel or such panel of
arbitrators be retained to make a determination of Indemnitee's entitlement to
indemnification pursuant to Section 6 of this Agreement, and to fully indemnify
such Counsel or arbitrators against any and all expenses and losses incurred by
any of them arising out of or relating to this Agreement or their engagement
pursuant hereto.
8. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination pursuant to Section 6
hereof is made that Indemnitee is not entitled to indemnification, (ii) advances
of Expenses are not made pursuant to this Agreement, (iii) payment has not been
timely made following a determination of entitlement
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to indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise
seeks enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Delaware of his or her
rights. The Corporation shall not oppose Indemnitee's right to seek any such
adjudication.
(b) In the event that a determination that Indemnitee is not
entitled to indemnification, in whole or in part, has been made pursuant to
Section 6 hereof, the decision in the judicial proceeding provided in paragraph
(a) of this Section 8 shall be made de novo and Indemnitee shall not be
prejudiced by reason of a determination that he or she is not entitled to
indemnification.
(c) If a determination that Indemnitee is entitled to
indemnification has been made pursuant to Section 6 hereof or otherwise pursuant
to the terms of this Agreement, the Corporation shall be bound by such
determination in the absence of (i) a misrepresentation or omission of a
material fact by Indemnitee or (ii) a specific finding (which has become final)
by an appropriate court of the State of Delaware that all or any part of such
indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 8, the
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation shall stipulate in any such court that the Corporation is bound by
all the provisions of this Agreement and is precluded from making any assertion
to the contrary.
(e) Expenses reasonably incurred by Indemnitee in connection with
his or her request for indemnification under this Agreement, seeking enforcement
of this Agreement or to recover damages for breach of this Agreement shall be
borne by the Corporation.
9. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION. No supplement,
modification, termination, cancellation or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.
10. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of 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 Corporation effectively to
bring suit to enforce such rights.
11. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM. Indemnitee shall
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter, whether civil, criminal, administrative or
investigative, but the omission so to notify the Corporation will not relieve it
from any liability which it may have to Indemnitee if such omission does not
prejudice the Corporation's rights. If such omission does prejudice the
Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve
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the Corporation from any liability which it may have to Indemnitee otherwise
than under this Agreement. For any Proceeding as to which Indemnitee notifies
the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) The Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee; provided, however, that the Corporation
shall not be entitled to assume the defense of any Proceeding if Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Corporation and Indemnitee with respect to such Proceeding. After notice
from the Corporation to Indemnitee of its election to assume the defense
thereof, the Corporation will not be liable to Indemnitee under this Agreement
for any Expenses subsequently incurred by Indemnitee in connection with the
defense thereof, other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ his or her own counsel
in such Proceeding but the fees and expenses of such counsel incurred after
notice from the Corporation of its assumption of the defense thereof shall be at
the expense of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been
authorized by the Corporation;
(ii) Indemnitee shall have reasonably concluded that
counsel engaged by the Corporation may not adequately represent
Indemnitee; or
(iii) The Corporation shall not in fact have employed
counsel to assume the defense in such Proceeding or shall not in fact
have assumed such defense and be acting in connection therewith with
reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; provided, however, that Indemnitee will not unreasonably
withhold his or her consent to any proposed settlement.
12. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
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(a) If to Indemnitee, to:
----------------------------------
c/o Deltagen, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Corporation, to:
c/o Deltagen, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
13. NONEXCLUSIVITY. The rights of Indemnitee hereunder shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under the Delaware General Corporation Law, the Corporation's
Restated Certificate of Incorporation or Bylaws, or any agreements, vote of
stockholders, resolution of the Board of Directors or otherwise.
14. CERTAIN DEFINITIONS.
(a) "Disinterested Director" shall mean a director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
(b) "Expenses" shall include all direct and indirect costs
(including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
all other disbursements or out-of-pocket expenses and reasonable compensation
for time spent by Indemnitee for which he or she is otherwise not compensated by
the Corporation) actually and reasonably incurred in connection with a
Proceeding or establishing or enforcing a right to indemnification under this
Agreement, applicable law or otherwise; provided, however, that "Expenses" shall
not include any Liabilities.
(c) "Final Adverse Determination" shall mean that a determination
that Indemnitee is not entitled to indemnification shall have been made pursuant
to Section 6 hereof and either (1) a final adjudication in a Delaware court
pursuant to Section 8(a) hereof shall have denied Indemnitee's right to
indemnification hereunder, or (2) Indemnitee shall have failed to file a
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complaint in a Delaware court pursuant to Section 8(a) for a period of one
hundred twenty (120) days after the determination made pursuant to Section 6
hereof.
(d) "Indemnification Period" shall mean the period of time during
which Indemnitee shall continue to serve as a director or as an officer of the
Corporation, and thereafter so long as Indemnitee shall be subject to any
possible Proceeding arising out of acts or omissions of Indemnitee as a director
or as an officer of the Corporation.
(e) "Independent Legal Counsel" shall mean a law firm or a member
of a law firm selected by the Corporation and approved by Indemnitee (which
approval shall not be unreasonably withheld) and that neither is presently nor
in the past five (5) years has been retained to represent: (i) the Corporation,
in any material matter, or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Legal Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Corporation or Indemnitee in an
action to determine Indemnitee's right to indemnification under this Agreement.
(f) "Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
proceeding.
(g) "Proceeding" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, including any appeal therefrom.
15. BINDING EFFECT, DURATION AND SCOPE OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns (including any direct
or indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Corporation), spouses, heirs
and personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director or as an officer.
16. SEVERABILITY. If any provision or provisions of this Agreement
(or any portion thereof) shall be held to be invalid, illegal or unenforceable
for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any provision
held invalid, illegal or unenforceable.
17. GOVERNING LAW AND INTERPRETATION OF AGREEMENT. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware, as applied
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to contracts between Delaware residents entered into and to be performed
entirely within Delaware. If the laws of the State of Delaware are hereafter
amended to permit the Corporation to provide broader indemnification rights than
said laws permitted the Corporation to provide prior to such amendment, the
rights of indemnification and advancement of expenses conferred by this
Agreement shall automatically be broadened to the fullest extent permitted by
the laws of the State of Delaware, as so amended.
18. CONSENT TO JURISDICTION. The Corporation and Indemnitee each
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.
19. ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understandings between the parties hereto with respect to the
subject matter of this Agreement, except as specifically referred to herein or
as provided in Section 13 hereof.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
DELTAGEN, INC.
a Delaware corporation
By:
--------------------------------
Name:
------------------------------
Title:
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INDEMNITEE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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