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EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this ___ day of _______________, 2000 by and
between GENOMIC SOLUTIONS INC., a Delaware corporation (the "Company"), and
____________________ (the "Indemnitee").
RECITALS:
A. Indemnitee is a member of the Board of Directors and/or an executive
officer of the Company, and in such capacities is performing a valuable service
for the Company.
B. The Company has adopted an Amended and Restated Certificate of
Incorporation, as amended (the "Certificate") and Bylaws (the "Bylaws")
authorizing and directing the Company to indemnify the directors, officers,
agents and employees of the Company to the maximum extent authorized by the
Delaware General Corporation Law, as amended to date (the "Act").
C. The Act specifically provides that it is not exclusive, and thereby
contemplates that contracts may be entered into between the Company and its
directors, officers, agents and employees with respect to the indemnification of
such persons.
D. Recent developments with respect to the terms and availability of
directors and officers liability insurance ("D&O Insurance") and the
application, amendment and enforcement of statutory and other indemnification
provisions generally have raised questions concerning the adequacy and
reliability of the protection afforded to directors and officers thereby.
E. To resolve such questions and thereby induce Indemnitee to continue
to serve as a member of the Board of Directors of the Company or as an officer,
or both, the Company desires to enter into this contract with Indemnitee.
AGREEMENT
NOW, THEREFORE, in consideration of Indemnitee's continued service with
the Company after the date hereof, the parties agree as follows:
1. D&O Insurance. The Company shall evaluate whether to procure D&O
Insurance, and if it, in its discretion, procures such insurance, it shall
maintain D&O Insurance so long as, in the reasonable business judgment of the
then directors of the Company, both (i) the premium cost for such insurance is
reasonably related to the amount of coverage provided, and (ii) the coverage
provided by such insurance is not so limited by exclusions that insufficient
benefit may be derived therefrom.
2. Indemnity. Subject only to the exclusions set forth in Section 3
hereof, the Company hereby agrees to hold harmless and indemnify Indemnitee, on
demand and as such expenses are incurred, against any and all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with any
threatened, pending or completed action, suit or proceedings, whether civil,
criminal, administrative or investigative
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(including an action by or in the right of the Company) to which Indemnitee is,
was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that Indemnitee is, was or at any time becomes a director,
officer, employee or agent of the Company, or is or was serving or at any time
serves at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise to
the fullest extent authorized and permitted by the provisions of the Act, or by
any amendment thereof or other statutory provisions authorizing or permitting
such indemnification which is adopted after the date hereof.
3. Limitations on Indemnity. No indemnity pursuant to Section 2
hereof shall be paid by the Company:
(a) except to the extent the aggregate of losses to be
indemnified hereunder exceed the amount of such losses for which
Indemnitee is indemnified pursuant to any D&O Insurance purchased and
maintained by the Company;
(b) in respect to remuneration paid to Indemnitee if a final
decision by a court having jurisdiction in the matter shall determine
that such remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered
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) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;
(d) if a final decision by a court having jurisdiction in the
matter shall determine that Indemnitee's act or omission involved an
act or omission undertaken with deliberate intent to cause injury to
the Company or undertaken with reckless disregard for the best
interests of the Company;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful; or
(f) if otherwise prohibited by the Act.
4. Continuation of Indemnity. All agreements and obligations of
the Company contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Indemnitee shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Indemnitee was a director
of the Company or serving in any other capacity referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to
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be made against the Company under this Agreement, notify the Company in writing
of the commencement thereof; but the omission so to notify the Company will not
relieve it from any liability which it may have to Indemnitee otherwise than
under this Agreement. With respect to any such action, suit or proceeding as to
which Indemnitee notifies the Company of the commencement thereof:
(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 selected by the Company and reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election
so to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other 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 counsel in
such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Company 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 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 (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. 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 Indemnitee shall have made the conclusion provided for
in (ii) above and notified the Company or as to which Indemnitee shall
have made the conclusion provided for in (ii) above and notified the
Company of such decision in writing specifying the reasons therefore.
(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 in any manner which would impose any penalty
or limitation on Indemnitee without Indemnitee's prior written consent.
Neither the Company nor Indemnitee will unreasonably withhold their
consent to any proposed settlement.
6. Repayment of Expenses. Indemnitee agrees that Indemnitee will
reimburse the Company for all reasonable fees and expenses paid by the Company
in defending any civil or criminal action, suit or proceeding against Indemnitee
if and only to the extent that a final decision by a court having jurisdiction
in the matter shall determine that Indemnitee is not entitled to be indemnified
by the Company for such fees and expenses under the provisions of the Act, the
Certificate, the Bylaws, this Agreement or otherwise.
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7. Enforcement.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Company hereby to induce Indemnitee to continue as a director or as an
executive officer of the Company or any of its subsidiaries or an
affiliated company as directed by the Company, and acknowledges that
Indemnitee is relying upon this Agreement in continuing in such
capacity.
(b) If Indemnitee is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful
in such action, the Company shall reimburse Indemnitee for all of
Indemnitee's reasonable fees and expenses in bringing and pursuing such
action.
8. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement, independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
9. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware applicable to
contracts made and to be wholly performed in such state.
(b) This Agreement shall be binding upon Indemnitee and upon
the Company, its successors and assigns, and shall inure to the benefit
of Indemnitee, his/her heirs, personal representatives and assigns and
to the benefit of the Company, its successors and assigns.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both
parties hereto.
10. Counterparts. This document may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the day and year first above written.
GENOMIC SOLUTIONS INC.
a Delaware corporation
By:
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Xxxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
"INDEMNITEE"
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