EXHIBIT 10.5
INDEMNITY AGREEMENT
between
TYPE IN EXECUTIVE NAME
and
PROCYTE CORPORATION
dated as of
TYPE IN DATE
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INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement") is made by and between PROCYTE
CORPORATION, a Washington Corporation (the "Company), and TYPE IN INDEMNITEE
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NAME, a Type in Title of the Company (the "Indemnitee"), as of Type in Date.
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RECITALS
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors and officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, due
to increased exposure to litigation costs and risks resulting from their service
to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors or officers;
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate, reliable
knowledge of legal risks to which they are exposed or information regarding the
proper course of action to take;
C. Plaintiffs often seek damages in such large amounts and the costs of
litigation may be so enormous (whether or not the case is meritorious), that the
defense and/or settlement of such litigation is beyond the personal resources of
directors and officers;
D. The Company believes that it is unfair for its directors and officers
to assume the risk of huge judgments and other expenses which may occur in cases
in which the director or officer received no personal profit and in cases where
the director or officer was not culpable;
E. The Company recognizes that the issues in controversy in litigation
against a director or officer of a corporation such as the Company are often
related to the knowledge, motives, and intent of such director or officer, that
he or she is usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters and that the long period of
time which usually elapses before the trial or other disposition of such
litigation often extends beyond the time the director or officer can reasonably
recall such matters and may extend beyond the normal time for retirement of such
director or officer with the result that he or she, after retirement (or in the
event of death, his or her spouse, heirs, executors or administrators), may be
faced with limited ability and undue hardship in maintaining an adequate
defense, which may discourage such director or officer from serving in that
position;
F. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain and attract
talented and experienced individuals to serve as directors and officers of the
Company and to encourage such individuals to take the business risks necessary
for the success of the Company, it is necessary for the Company to contractually
indemnify its directors and officers, and to assume for itself maximum liability
for expenses and damages in connection with claims against such directors and
officers in connection with their service to the Company, and has further
concluded that the failure to provide such contractual indemnification could
result in great harm to the Company and the Company's shareholders;
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G. The shareholders of the Company have adopted Bylaws (the "Bylaws")
providing for indemnification of the officers, directors, agents and employees
of the Company as contemplated by the Washington Business Corporation Act (the
"Statute");
H. Section 23B.08.510 and .570 of the Statute, under which the Company is
organized ("Section 510/570"), empowers the Company to indemnify persons who
serve, at the request of the Company, as the directors, officers, employees or
agents of the Company or of other corporations or enterprises;
I. The Bylaws specifically provide that the rights provided thereby are
not exclusive, and Section 510/570 contemplates that contracts may be entered
into between the Company and the members of the Board and its officers,
employees and agents with respect to indemnification of such persons;
J. Recent developments with respect to the terms and availability of
directors' and officers' liability insurance and with respect to the
application, amendment and enforcement of statutory and bylaw indemnification
provisions generally have raised questions concerning the adequacy and
reliability of the protection afforded to directors, officers, employees and
agents thereby;
K. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern for claims for damages arising out of or related to such services to the
Company; and
L. The Indemnitee is willing to serve, or to continue to serve, the
Company, provided that he or she is furnished the indemnity provided for herein.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
(a) Agent. "Agent" of the Company means any person who is or was a
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director, officer, employee or other agent of the Company or a Subsidiary (as
defined below); or is or was serving at the request of, for the convenience of,
or to represent the interests of the Company or a Subsidiary 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, or is 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.
(b) Expenses. "Expenses" include all direct and indirect costs of any type
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or nature whatsoever (including, without limitation, all attorneys' fees and
related disbursements, other out-of-pocket costs and reasonable compensation for
time spent by the Indemnitee for which he or she is not otherwise compensated by
the Company or any third party) actually and reasonably incurred by the
Indemnitee in connection with either the investigation, defense or appeal of a
Proceeding (as defined below) or establishing or enforcing a right to
indemnification under this Agreement, Section 510/570 or otherwise; provided,
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however, that expenses shall not include any judgments, fines, ERISA excise
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taxes or penalties or amounts paid in settlement of a Proceeding.
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(c) Proceeding. "Proceeding" means any threatened, pending, or completed
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action, suit or other proceeding, whether civil, criminal, administrative,
investigative or any other type whatsoever.
(d) Subsidiary. "Subsidiary" means any corporation of which more than 50%
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of the outstanding voting securities is owned directly or indirectly by the
Company, by the Company and one or more other subsidiaries, or by one or more
other subsidiaries.
2. AGREEMENT TO SERVE
The Indemnitee agrees to serve and/or continue to serve as a director or
officer of the Company, at its will, so long as the Indemnitee is duly appointed
or elected and qualified in accordance with the applicable provisions of the
Bylaws or until such time as the Indemnitee tenders his or her resignation in
writing.
3. MAINTENANCE OF LIABILITY INSURANCE.
(a) The Company hereby covenants and agrees that, so long as the Indemnitee
shall continue to serve as a director or officer of the Company and thereafter
so long as the Indemnitee was an Agent of the Company, the Company, subject to
Section 3(b), shall use its best efforts, consistent with prudent business
practice, to obtain and maintain in full force and effect directors' and
officers' liability insurance ("D&O Insurance") of which the Indemnitee will be
an insured, in reasonable amounts from established and reputable insurers.
(b) Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for such insurance
are 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.
4. MANDATORY INDEMNIFICATION
Subject to Section 9, if the Indemnitee is a person who was or is a party
or is threatened to be made a party to any Proceeding by reason of the fact that
the Indemnitee is or was an Agent of the Company, or by reason of anything done
or not done by the Indemnitee in any such capacity, the Company shall indemnify
and hold harmless the Indemnitee to the fullest extent permitted by applicable
law, as then in effect, without the requirement of any further approval or
finding by the shareholders, the Board or independent legal counsel, against all
Expenses, liabilities and losses (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually
and reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of the Proceeding. The Company shall be obligated
to provide such indemnification even if the Indemnitee should be deceased prior
to, during the pendency of, or after completion of any Proceeding to which such
indemnification applies.
5. PARTIAL INDEMNIFICATION
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Expenses,
liabilities or losses of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) actually and reasonably incurred by the Indemnitee in connection
with the investigation, defense, settlement or
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appeal of a Proceeding but not entitled, however, to indemnification for all of
the total amount thereof, the Company shall nevertheless indemnify the
Indemnitee for that portion thereof to which the Indemnitee is entitled.
6. MANDATORY ADVANCEMENT OF EXPENSES
Subject to Section 9(f), the Company shall advance all reasonable expenses
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any Proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or
was an Agent of the Company. The Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be
determined pursuant to Section 8 that the Indemnitee is not entitled to be
indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to the Indemnitee within 20 days
following delivery of a written request therefor by the Indemnitee to the
Company.
7. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by the Indemnitee of notice of the commencement
of, or the threat of commencement of, any Proceeding, the Indemnitee shall, if
the Indemnitee believes that indemnification with respect thereto may be sought
from the Company under this Agreement, notify the Company of the commencement or
threat of commencement thereof.
(b) If, at the time of receipt of a notice of the commencement of a
Proceeding pursuant to Section 7(a), the Company has D&O Insurance in effect,
the Company shall give prompt notice of the commencement of such Proceeding to
the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such policies.
(c) If the Company shall be obligated to pay the Expenses of any Proceeding
against the Indemnitee, the Company, if appropriate, shall be entitled to assume
the defense of such Proceeding, with counsel approved by the Indemnitee (which
approval shall not be unreasonably withheld), upon the delivery to the
Indemnitee of written notice of its election so to do. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to the Indemnitee under
this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same Proceeding, provided that: (i) the Indemnitee shall
have the right to employ his or her counsel in any such Proceeding at the
Indemnitee's expense; and (ii) if (A) the employment of counsel by the
Indemnitee has been previously authorized by the Company, (B) the Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of any such defense, or (C) the
Company shall not, in fact, have employed counsel to assume the defense of such
Proceeding, the fees and Expenses of Indemnitee's counsel shall be at the
expense of the Company.
(d) The Company shall not be entitled to assume the defense of any action,
suit or Proceeding brought by or on behalf of the Company or as to which the
Indemnitee shall have reached the conclusion provided for in Section
7(c)(ii)(B).
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8. DETERMINATION OF RIGHT TO INDEMNIFICATION
(a) To the extent the Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding referred to in Section 4 or in the
defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred by
him or her in connection with the investigation, defense, or appeal of such
Proceeding.
(b) In the event that Section 8(a) is inapplicable, the Company shall also
indemnify the Indemnitee unless, and only to the extent, that it is determined
by a forum described in Section 8(c) that the Indemnitee has not met the
applicable standard of conduct required to entitle the Indemnitee to such
indemnification. The Indemnitee shall be presumed to be entitled to
indemnification hereunder upon submission of a written claim (and, in any action
brought to enforce a claim for expenses incurred in defending any Proceeding, in
advance of its final disposition) and thereafter the Company shall have the
burden of proof to overcome the presumption that the Indemnitee is not so
entitled.
(c) The Indemnitee shall be entitled to select the forum in which the
validity of the Company's claim under Section 8(b) that the Indemnitee is not
entitled to indemnification will be heard from among the following:
(1) A quorum of the Board consisting of directors who are not at the time
parties to the Proceeding for which indemnification is being sought;
(2) If a quorum cannot be obtained under (1) of this subsection, by a
majority vote of a committee duly designated by the Board, in which
designation directors who are parties may participate, consisting
solely of two or more directors who are not at the time parties to the
Proceeding for which indemnification is being sought;
(3) The shareholders of the Company (provided that shares owned by or
voted under the control of directors who are at the time parties to
the Proceeding may not be voted on the determination); or
(4) Special legal counsel (i) selected by the Board or its committee in
the manner prescribed in (1) or (2) of this subsection or (ii) if a
quorum of the Board cannot be obtained under (1) of this subsection
and a committee cannot be designated under (2) of this subsection,
selected by majority vote of the full Board, in which selection
directors who are parties may participate.
(d) As soon as practicable, and in no event later than 30 days after
written notice of the Indemnitee's choice of forum pursuant to Section 8(c), the
Company shall, at its own expense, submit to the selected forum, in such manner
as the Indemnitee or the Indemnitee's counsel may reasonably request, its claim
that the Indemnitee is not entitled to indemnification; and the Company shall
act in the utmost good faith to ensure the Indemnitee a complete opportunity to
defend against such claim.
(e) If the forum listed in Section 8(c) selected by the Indemnitee
determines that the Indemnitee is entitled to indemnification with respect to a
specific Proceeding, such determination shall be final and binding on the
Company. If the forum listed in Section 8(c) selected by the Indemnitee
determines that the Indemnitee is not entitled to indemnification with respect
to a specific Proceeding, the Indemnitee shall have the right to apply to the
court in which that Proceeding is or was pending or any other court of competent
jurisdiction for the purpose of enforcing the Indemnitee's right to
indemnification pursuant to this Agreement.
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(f) Notwithstanding any other provision in this Agreement to the contrary,
the Company shall indemnify the Indemnitee against all reasonable Expenses
incurred by the Indemnitee in connection with any hearing or Proceeding under
this Section 8 involving the Indemnitee and against all reasonable Expenses
incurred by the Indemnitee in connection with any other Proceeding between the
Company and the Indemnitee involving the interpretation or enforcement of the
rights of the Indemnitee under this Agreement unless a court of competent
jurisdiction finds that each of the claims and/or defenses of the Indemnitee in
any such Proceeding was frivolous or made in bad faith.
9. EXCEPTIONS
Any other provisions herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement to indemnify the
Indemnitee for Expenses, liabilities or losses of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement):
(a) D&O Insurance. Which have been paid directly to the Indemnitee
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pursuant to policy of D&O Insurance purchased and maintained by the Company; or
(b) Certain Remuneration. With respect to remuneration paid to the
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Indemnitee if it shall be determined by a final judgment or other final
adjudication that such remuneration was in violation of law; or
(c) Certain Statutory Claims. On account of any suit in which judgment is
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rendered against the Indemnitee for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law; or
(d) Certain Conduct. On account of the Indemnitee's conduct which is
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determined by the forum described in Section 8(c) or by a court pursuant to
Section 8(e) to have been intentional misconduct, a knowing violation of law or
RCW 23B.08.310 or any successor provision of Section 510/570, or a transaction
from which the Indemnitee derived benefit in money, property or services to
which the Indemnitee is not legally entitled, unless and only to the extent that
a court shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such amounts which the court
shall deem proper; or
(e) Court Decision. In the event a determination has not been made by the
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forum described in Section 8(c) or in the event of a determination by such forum
from which the Indemnitee has applied to a court pursuant to Section 8(e), if a
final decision by a court having jurisdiction in the matter shall determine that
such indemnification is not lawful; or
(f) Claims Initiated by Indemnitee. With respect to Proceedings or claims
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initiated or brought voluntarily by the Indemnitee and not by way of defense,
except with respect to Proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as
required under Section 510/570, but such indemnification or advancement of
Expenses may be provided by the Company in specific cases if the Board finds it
to be appropriate; or
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(g) Lack of Good Faith. With respect to any Proceeding instituted by the
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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 in good faith or was frivolous; or
(h) Unauthorized Settlements. For any amounts paid in settlement of any
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action or claim effected without its written consent. The Company shall not
settle any action or claim in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. Neither
the Company nor the Indemnitee will unreasonably withhold its, his or her
consent to any proposed settlement.
10. NONEXCLUSIVITY; CONTINUATION OF RIGHTS
The provisions for indemnification and advancement of Expenses set forth in
this Agreement shall not be deemed exclusive of any other rights which the
Indemnitee may have under any provision of law, the Company's Articles of
Incorporation or Bylaws, the vote of the Company's shareholders or disinterested
directors, other agreements, or otherwise, both as to action in the Indemnitee's
official capacity and to action in another capacity while occupying the position
as an Agent of the Company. All agreements and obligations of the Company
contained herein shall continue during the period the Indemnitee is a director,
officer, employee or Agent of the Company and shall continue thereafter so long
as the Indemnitee shall be subject to any possible claim or threatened, pending
or completed action, suit or Proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that the Indemnitee was an Agent of the
Company.
11. INTERPRETATION OF AGREEMENT
It is understood that the parties hereto intend this Agreement to be
interpreted and enforced so as to provide indemnification to the Indemnitee to
the fullest extent now or hereafter permitted by law.
12. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any such provisions held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to
Section 11.
13. MODIFICATION AND WAIVER
No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
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14. SUCCESSORS AND ASSIGNS
The terms of this Agreement shall bind, and shall inure to the benefit of,
the successors and assigns of the parties hereto.
15. NOTICES
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given: (i) if delivered
by hand and receipted for by the party addressee; or (ii) if mailed by certified
or registered mail with postage prepaid, on the third business day after the
mailing date. Address for notice to either party is as shown on the signature
pages of this Agreement, or as subsequently modified by written notice.
16. GOVERNING LAW
This Agreement shall be governed exclusively by and construed according to
the laws of the State of Washington, as applied to contracts between Washington
residents entered into and to be performed entirely within Washington.
17. CONSENT TO JURISDICTION
The Company and the Indemnitee each hereby irrevocably consent to the
jurisdiction of the state and federal courts in the State of Washington 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 or federal courts in the State of
Washington.
The parties hereto have entered into this Agreement effective as of the
date first above written.
PROCYTE CORPORATION INDEMNITEE
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., Bldg. A Address
Redmond, WA 98052-3557 City, State, Zip
By: By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Type in Executive Name
President and Chief Executive Officer
[Signed by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇ and such
other officer and directors as may be elected subsequent to the filing of this
agreement.]
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