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EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of the 11th
day of November, 1997 (the "Agreement"), by and between Nanogen, Inc., a
Delaware corporation (as successor by name change to Nanogen (Delaware), Inc., a
Delaware corporation, which was the surviving corporation of the merger of
Nanogen, Inc., a California corporation, with and into Nanogen (Delaware), Inc.)
(the "Company"), and ______________ (the "Indemnitee"), with reference to the
following facts:
WHEREAS, the Company desires the benefits of having Indemnitee
serve as an officer and/or director secure in the knowledge that any
expenses, liability and/or losses incurred by him in his good faith
service to the Company will be borne by the Company or its successors
and assigns; and
WHEREAS, Indemnitee is willing to serve in his position with the
Company only on the condition that he be indemnified for such expenses,
liability and/or losses; and
WHEREAS, the Company and Indemnitee recognize the increasing
difficulty in obtaining liability insurance for directors, officers and
agents of a corporation at reasonable cost; and
WHEREAS, the Company and Indemnitee recognize that there has been
an increase in litigation against corporate directors, officers and
agents; and
WHEREAS, the Company's Restated Certificate of Incorporation
allows and requires the Company to indemnify its directors, officers and
agents to the maximum extent permitted under Delaware law.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Agent" shall mean any person who (a) is or was a director,
officer, employee or agent of the Company or a subsidiary of the Company
whether serving in such capacity or as a director, officer, employee,
agent, fiduciary or other official of another corporation, joint
venture, trust or other enterprise at the request of, for the
convenience of, or to represent the interests of the Company or a
subsidiary of the Company or (b) was a director, officer, employee or
agent of Nanogen, Inc., a California corporation and the predecessor by
merger to the Company (the "Predecessor Corporation"), whether serving
in such capacity or as a director, officer, employee, agent, fiduciary
or other official of another
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corporation, joint venture, trust or other enterprise at the request of,
for the convenience of, or to represent the interests of such
Predecessor Corporation.
1.2 "Change of Control" shall mean the occurrence of any of the
following events after the date of this Agreement:
(a) A change in the composition of the board of directors
of the Company (the "Board"), as a result of which fewer than
two-thirds of the incumbent directors are directors who either
(a) had been directors of the Company 24 months prior to such
change or (b) were elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the
directors who had been directors of the Company 24 months prior
to such change and who were still in office at the time of the
election or nomination; or
(b) Any "person" (as such term is used in sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), as amended) through the acquisition or aggregation of
securities is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 20 percent
or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from rights accruing
under special circumstances) having the right to vote at
elections of directors (the "Capital Stock"); provided, however,
that any change in ownership of the Company's securities by any
person resulting solely from a reduction in the aggregate number
of outstanding shares of Capital Stock, and any decrease
thereafter in such person's ownership of securities, shall be
disregarded until such person increases in any manner, directly
or indirectly, such person's beneficial ownership of any
securities of the Company.
1.3 "Disinterested Director" shall mean a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
1.4 "Expenses" shall be broadly construed and shall include,
without limitation, (a) all direct and indirect costs incurred, paid or
accrued, (b) all attorneys' fees, retainers, court costs, transcripts,
fees of experts, witness fees, travel expenses, food and lodging
expenses while traveling, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service, freight or other
transportation fees and expenses, (c) all other disbursements and
out-of-pocket expenses, (d) amounts paid in settlement, to the extent
not prohibited by Delaware Law, and (e) reasonable compensation for time
spent by Indemnitee for which he is otherwise not compensated by the
Company or any
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third party, actually and reasonably incurred in connection with or
arising out of a Proceeding, including a Proceeding by Indemnitee to
establish or enforce a right to indemnification under this Agreement,
applicable law or otherwise.
1.5 "Independent Counsel" shall mean a law firm or a member of a
law firm that neither is presently nor in the past five years has been
retained to represent: (a) the Company, an affiliate of the Company or
Indemnitee in any matter material to either party or (b) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent 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 Company or Indemnitee in an action to determine
Indemnitee's right to indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments or fines, ERISA or other excise
taxes and penalties, and amounts paid in settlement (including all
interest, assessments or other charges paid or payable in connection
with any of the foregoing) actually and reasonably incurred by
Indemnitee in connection with a Proceeding.
1.7 "Delaware Law" means the Delaware General Corporation Law, as
amended and in effect from time to time or any successor or other
statutes of Delaware having similar import and effect.
1.8 "Proceeding" shall mean any pending, threatened or completed
action, hearing, suit or any other proceeding, whether civil, criminal,
arbitrative, administrative, investigative or any alternative dispute
resolution mechanism, including without limitation any such Proceeding
brought by or in the right of the Company.
2. Employment Rights and Duties. Subject to any other obligations
imposed on either of the parties by contract or by law, and with the
understanding that this Agreement is not intended to confer employment rights on
either party which they did not possess on the date of its execution, Indemnitee
agrees to serve as a director or officer so long as he is duly appointed or
elected and qualified in accordance with the applicable provisions of the
Restated Certificate of Incorporation (the "Certificate") and Bylaws (the
"Bylaws") of the Company or any subsidiary of the Company and until such time as
he resigns or fails to stand for election or until his employment terminates.
Indemnitee may from time to time also perform other services at the request, or
for the convenience of, or otherwise benefiting the Company. 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 Company shall have no obligation under this Agreement
to continue Indemnitee in any such position.
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2.1 Directors' and Officers' Insurance.
(a) 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 Proceeding, the Company, subject to Section
2.1(c), shall maintain directors' and officers' insurance in full
force and effect.
(b) In all policies of directors' and officers' 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.
(c) The Company shall have no obligation to maintain
directors' and officers' 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.
3. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent authorized or permitted by Delaware Law and the provisions of the
Certificate and Bylaws of the Company in effect on the date hereof, and as
Delaware Law, the Certificate and Bylaws may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than Delaware Law, the
Certificate and/or Bylaws permitted the Company to provide before such
amendment). The right to indemnification conferred in the Certificate shall be
presumed to have been relied upon by Indemnitee in serving or continuing to
serve the Company as a director or officer and shall be enforceable as a
contract right. Without in any way diminishing the scope of the indemnification
provided by the Certificate and this Section 3, the Company shall indemnify
Indemnitee if and whenever he is or was a witness, party or is threatened to be
made a witness or a party to any Proceeding, by reason of the fact that he is or
was an Agent or by reason of anything done or not done, or alleged to have been
done or not done, by him in such capacity, against all Expenses and Liabilities
actually and reasonably incurred by Indemnitee or on his behalf in connection
with the investigation, defense, settlement or appeal of such Proceeding. 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 Sections 4, 5 and 6 below.
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4. Payment of Expenses.
4.1 All Expenses incurred by or on behalf of Indemnitee shall be
advanced by the Company to Indemnitee within 20 days after the receipt
by the Company of a written request for such advance which may be made
from time to time, whether prior to or after final disposition of a
Proceeding (unless there has been a final determination by a court of
competent jurisdiction that Indemnitee is not entitled to be indemnified
for such Expenses). Indemnitee's entitlement to advancement of Expenses
shall include those incurred in connection with any Proceeding by
Indemnitee seeking a determination, an adjudication or an award in
arbitration pursuant to this Agreement. The requests shall reasonably
evidence the Expenses incurred by Indemnitee in connection therewith.
Indemnitee hereby undertakes to repay the amounts advanced if it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified pursuant to the terms of this Agreement.
4.2 Notwithstanding any other provision in this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee in connection
therewith.
5. Procedure for Determination of Entitlement to Indemnification.
5.1 Whenever Indemnitee believes that he is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a
written request for indemnification (the "Indemnification Request") to
the Company to the attention of the President with a copy to the
Secretary. This request shall include documentation or information which
is necessary for the determination of entitlement to indemnification and
which is reasonably available to Indemnitee. Determination of
Indemnitee's entitlement to indemnification shall be made no later than
60 days after receipt of the Indemnification Request. The President or
the Secretary shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board in writing that Indemnitee has made
such request for indemnification.
5.2 The Indemnification Request shall set forth Indemnitee's
selection of which of the following forums shall determine whether
Indemnitee is entitled to indemnification:
(1) A majority vote of Directors who are not parties to
the action with respect to which indemnification is sought, even
though less than a quorum.
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(2) A written opinion of an Independent Counsel (provided
there are no such Directors as set forth in (1) above or if such
Directors as set forth in (1) above so direct).
(3) A majority vote of the stockholders at a meeting at
which a quorum is present, with the shares owned by the person to
be indemnified not being entitled to vote thereon.
(4) The court in which the Proceeding is or was pending
upon application by Indemnitee.
The Company agrees to bear any and all costs and expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
6. Presumptions and Effect of Certain Proceedings. No initial finding by
the Board, its counsel, Independent Counsel, arbitrators or the stockholders
shall be effective to deprive Indemnitee of the protection of this indemnity,
nor shall a court or other forum to which Indemnitee may apply for enforcement
of this indemnity give any weight to any such adverse finding in deciding any
issue before it. Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by judgment, order,
settlement, arbitration award or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, (a) adversely affect the rights of
Indemnitee to indemnification except as indemnification may be expressly
prohibited under this Agreement, (b) create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee in Cases of Determination not to Indemnify
or to Advance Expenses.
7.1 In the event that (a) an initial determination is made that
Indemnitee is not entitled to indemnification, (b) advances for Expenses
are not made when and as required by this Agreement, (c) payment has not
been timely made following a determination of entitlement to
indemnification pursuant to this Agreement or (d) 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 entitlement to such indemnification or advance. Alternatively,
Indemnitee at his option may seek an award in arbitration. If the
parties are unable to agree on an arbitrator, the parties shall provide
JAMS Endispute ("JAMS") with a statement of the nature of the dispute
and the desired qualifications of the arbitrator. JAMS will then provide
a list of three available arbitrators. Each party may strike one of the
names on the list, and the remaining
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person will serve as the arbitrator. If both parties strike the same
person, JAMS will select the arbitrator from the other two names. The
arbitration award shall be made within 90 days following the demand for
arbitration. Except as set forth herein, the provisions of Delaware law
shall apply to any such arbitration. The Company shall not oppose
Indemnitee's right to seek any such adjudication or arbitration award.
In any such proceeding or arbitration Indemnitee shall be presumed to be
entitled to indemnification under this Agreement and the Company shall
have the burden of proof to overcome that presumption.
7.2 An initial determination, in whole or in part, that
Indemnitee is not entitled to indemnification shall create no
presumption in any judicial proceeding or arbitration that Indemnitee
has not met the applicable standard of conduct for, or is otherwise not
entitled to, indemnification.
7.3 If an initial determination is made or deemed to have been
made pursuant to the terms of this Agreement that Indemnitee is entitled
to indemnification, the Company shall be bound by such determination in
the absence of (a) a misrepresentation of a material fact by Indemnitee
in the request for indemnification or (b) a specific finding (which has
become final) by a court of competent jurisdiction that all or any part
of such indemnification is expressly prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary
remedy for breach of this Agreement, at some later date, will be
inadequate, impracticable and difficult of proof, and further agree that
such breach would cause Indemnitee irreparable harm. Accordingly, the
Company and Indemnitee agree that Indemnitee shall be entitled to
temporary and permanent injunctive relief to enforce this Agreement
without the necessity of proving actual damages or irreparable harm. The
Company and Indemnitee further agree that Indemnitee shall be entitled
to such injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity
of posting bond or other undertaking in connection therewith. Any such
requirement of bond or undertaking is hereby waived by the Company, and
the Company acknowledges that in the absence of such a waiver, a bond or
undertaking may be required by the court.
7.5 The Company shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Company shall stipulate in any such court or before any
such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
7.6 Expenses incurred by Indemnitee in connection with his
request for indemnification under, seeking enforcement of or to recover
damages for breach of this Agreement shall be borne and advanced by the
Company.
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8. Other Rights to Indemnification. Indemnitee's rights of
indemnification and advancement of expenses provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under applicable law, the Certificate, the Bylaws, an
employment agreement, a vote of stockholders or Disinterested Directors,
insurance or other financial arrangements or otherwise.
9. Limitations on Indemnification. No indemnification pursuant to
Section 3 shall be paid by the Company nor shall Expenses be advanced pursuant
to Section 3:
9.1 Insurance. To the extent that Indemnitee is reimbursed
pursuant to such insurance as may exist for Indemnitee's benefit.
Notwithstanding the availability of such insurance, Indemnitee also may
claim indemnification from the Company pursuant to this Agreement by
assigning to the Company any claims under such insurance to the extent
Indemnitee is paid by the Company. Indemnitee shall reimburse the
Company for any sums he receives as indemnification from other sources
to the extent of any amount paid to him for that purpose by the Company;
9.2 Section 16(b). On account and to the extent of any wholly or
partially successful claim against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of
the Company pursuant to the provisions of Section 16(b) or the
Securities Exchange Act of 1934, as amended, and amendments thereto or
similar provisions of any federal, state or local statutory law; or
9.3 Indemnitee's Proceedings. Except as otherwise provided in
this Agreement, in connection with all or any part of a Proceeding which
is initiated or maintained by or on behalf of Indemnitee, or any
Proceeding by Indemnitee against the Company or its directors, officers,
employees or other agents, unless (a) such indemnification is expressly
required to be made by Delaware Law, (b) the Proceeding was authorized
by a majority of the Disinterested Directors (c) there has been a Change
of Control or (d) such indemnification is provided by the Company, in
its sole discretion, pursuant to the powers vested in the Company under
Delaware Law.
10. Duration and Scope of Agreement; Binding Effect. This Agreement
shall continue so long as Indemnitee shall be subject to any possible Proceeding
subject to indemnification by reason of the fact that he is or was an Agent and
shall be applicable to Proceedings commenced or continued after execution of
this Agreement, whether arising from acts or omissions occurring before or after
such execution. This Agreement shall be binding upon the Company and its
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 Company) and shall inure to the benefit of Indemnitee and his
spouse, assigns, heirs, devisees, executors, administrators and other legal
representatives.
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11. Notice by Indemnitee and Defense of Claims. Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,
whether civil, criminal, arbitrative, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Indemnitee if such omission does not actually prejudice the
Company's rights and, if such omission does prejudice the Company's rights, it
will relieve the Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
Proceeding:
(a) The Company will be entitled to participate therein
at its own expense;
(b) Except as otherwise provided below, to the extent that
it may wish, the Company jointly with any other indemnifying
party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election so to
assume the defense thereof and the assumption of such defense,
the Company will not be liable to Indemnitee under this Agreement
for any attorney fees or costs subsequently incurred by
Indemnitee in connection with Indemnitee's defense except as
otherwise provided below. Indemnitee shall have the right to
employ his counsel in such Proceeding but the fees and expenses
of such counsel incurred after notice from the Company of its
assumption of the defense thereof and the assumption of such
defense shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and
Indemnitee in the conduct of the defense of such action or that
the Company's counsel may not be adequately representing
Indemnitee or (iii) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of
the Company; and
(c) The Company shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim which
would impose any limitation or penalty on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee
will unreasonably withhold its or his consent to any proposed
settlement.
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11.1 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in this Agreement is held by a court of competent jurisdiction to be
unavailable to Indemnitee in whole or part, the Company shall, in such
an event, after taking into account, among other things, contributions
by other directors and officers of the Company pursuant to
indemnification agreements or otherwise, and, in the absence of personal
enrichment, acts of intentional fraud or dishonesty or criminal conduct
on the part of Indemnitee, contribute to the payment of Indemnitee's
losses to the extent that, after other contributions are taken into
account, such losses exceed: (i) in the case of a director of the
Company or any of its subsidiaries who is not an officer of the Company
or any of such subsidiaries, the amount of fees paid to the director for
serving as a director during the 12 months preceding the commencement of
the Proceeding; or (ii) in the case of a director of the Company or any
of its subsidiaries who is also an officer of the Company or any of such
subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for service in such
office(s) during the 12 months preceding the commencement of the
Proceeding; or (iii) in the case of an officer of the Corporation or any
of its subsidiaries, 5% of the aggregate cash compensation paid to such
officer for service in such office(s) during the 12 months preceding the
commencement of such Proceeding.
12. Establishment of Trust. In order to secure the obligations of the
Company to indemnify and to advance Expenses to Indemnitee pursuant to this
Agreement, upon a Change of Control of the Company, the Company or its successor
or assign shall establish a Trust (the "Trust") for the benefit of the
Indemnitee, the trustee (the "Trustee") of which shall be chosen by the Company
and which is reasonably acceptable to the Indemnitee. Thereafter, from time to
time, upon receipt of a written request from Indemnitee, the Company shall fund
the Trust in amounts sufficient to satisfy any and all Liabilities and Expenses
reasonably anticipated at the time of such request for which the Company may
indemnify Indemnitee hereunder. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by mutual
agreement of the Indemnitee and the Company or, if the Company and the
Indemnitee are unable to reach such an agreement, by Independent Counsel
selected jointly by the Company and the Indemnitee. The terms of the Trust shall
provide that except upon the consent of the Indemnitee and the Company, (i) the
Trust shall not be revoked or the principal thereof invaded, without the written
consent of the Indemnitee, (ii) the Trustee shall advance to the Indemnitee,
within 20 days of a request by the Indemnitee, any and all Expenses, the
Indemnitee hereby agreeing to reimburse the Trustee of the Trust for all
Expenses so advanced if a final determination is made by a court in a final
adjudication from which there is no further right of appeal that the Indemnitee
is not entitled to be indemnified under this Agreement, (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligations
set forth in this Section, (iv) the Trustee shall promptly pay to the Indemnitee
any amounts to which the Indemnitee shall be entitled pursuant to this
Agreement, and (v) all unexpended funds in the Trust shall revert to the Company
upon a final determination by Independent Counsel selected by Indemnitee or a
court of competent jurisdiction that Indemnitee has been fully indemnified with
respect to the Proceeding giving rise to the funding of the Trust
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under the terms of this Agreement. The establishment of the Trust shall not, in
any way, diminish the Company's obligation to indemnify Indemnitee against
Expenses and Liabilities to the full extent required by this Agreement.
13. Miscellaneous Provisions.
13.1 Severability; Partial Indemnity. If any provision or
provisions of this Agreement (or any portion thereof) shall be held by a
court of competent jurisdiction to be invalid, illegal or unenforceable
for any reason whatever: (a) such provision shall be limited or modified
in its application to the minimum extent necessary to avoid the
invalidity, illegality or unenforceability of such provision; (b) the
validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby; and
(c) to the fullest extent possible, the provisions of this Agreement
shall be construed so as to give effect to the intent manifested by the
provision (or portion thereof) held invalid, illegal or unenforceable.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Expenses or
Liabilities of any type whatsoever incurred by him in the investigation,
defense, settlement or appeal of a Proceeding but not entitled to all of
the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for such total amount except as to the portion thereof for
which it has been determined pursuant to Section 5 hereof that
Indemnitee is not entitled.
13.2 Identical 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. Only one such counterpart signed by the party against
whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
13.3 Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so
as to provide indemnification to Indemnitee to the fullest extent not
now or hereafter prohibited by law.
13.4 Headings. The headings of the Sections and paragraphs of
this Agreement are inserted for convenience only and shall not be deemed
to constitute part of this Agreement or to affect the construction
thereof.
13.5 Pronouns. Use of the masculine pronoun shall be deemed to
include use of the feminine pronoun where appropriate.
13.6 Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing
by both of the parties to this Agreement. No waiver of any provision of
this Agreement shall be deemed to constitute a waiver of any of the
provisions hereof (whether
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or not similar) nor shall such waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be effective unless
executed in writing.
13.7 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:
(a) If to Indemnitee, to:
______________________
______________________
______________________
______________________
Telephone:
Telefax:
(b) If to the Company to:
Nanogen, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Nanogen, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: General Counsel
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
13.8 Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.
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13.9 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.
13.10 Entire Agreement. This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understanding between the parties hereto with respect to
the subject matter of this Agreement, except as specifically referred to
herein or as provided in Sections 8 and 2.1 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
NANOGEN, INC.
By:________________________________
____________________________________
Indemnitee
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