{"id":40791,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-agraquest-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-agraquest-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-agraquest-inc.html","title":{"rendered":"Indemnification Agreement &#8211; AgraQuest Inc."},"content":{"rendered":"<pre>                                AGRAQUEST, INC.\n\n                           INDEMNIFICATION AGREEMENT\n\n     THIS AGREEMENT is entered into, effective as of ____________, 2002 by and\nbetween AgraQuest, Inc., a Delaware corporation (the \"Company\"), and\n___________________ (\"Indemnitee\").\n\n     WHEREAS, it is essential to the Company to retain and attract as directors\nand officers the most capable persons available;\n\n     WHEREAS, Indemnitee is a director and\/or officer of the Company; and\n\n     WHEREAS, in recognition of Indemnitee's need for substantial protection\nagainst personal liability in order to enhance Indemnitee's continued and\neffective service to the Company, and in order to induce Indemnitee to provide\nservices to the Company as a director and\/or officer, the Company wishes to\nprovide in this Agreement for the indemnification of and the advancing of\nexpenses to Indemnitee to the fullest extent (whether partial or complete)\npermitted by Delaware law and as set forth in this Agreement, and, to the extent\ninsurance is maintained, for the coverage of Indemnitee under the Company's\ndirectors' and officers' liability insurance policies.\n\n     NOW, THEREFORE, in consideration of the above premises and of Indemnitee's\ncontinuing to serve the Company directly or, at its request, with another\nenterprise, and intending to be legally bound hereby, the parties agree as\nfollows:\n\n     1.   Certain Definitions.\n          ------------------- \n\n          (a)  Board: the Board of Directors of the Company.\n\n          (b)  Change In Control: shall be deemed to have occurred if (i) any\n\"person\" (as such term is used in Sections 13(d) and 14(d) of the Securities\nExchange Act of 1934, as amended (the \"Act\")), other than a trustee or other\nfiduciary holding securities under an employee benefit plan of the Company or a\ncorporation owned directly or indirectly by the stockholders of the Company in\nsubstantially the same proportions as their ownership of stock of the Company\n(collectively \"excluded persons\"), is or becomes the \"Beneficial Owner\" (as\ndefined in Rule 13d-3 under the Act), directly or indirectly, of securities of\nthe Company representing 30% or more of the total voting power represented by\nthe Company's then outstanding Voting Securities, or (ii) during any period of\ntwo consecutive years, individuals who at the beginning of such period\nconstitute the Board and any new director whose election by the Board or\nnomination for election by the Company's stockholders was approved by a vote of\nat least two-thirds (2\/3) of the directors then still in office who either were\ndirectors at the beginning of the period or whose election or nomination for\nelection was previously so approved, cease for any reason to constitute a\nmajority of the Board, or (iii) the stockholders of the Company approve a merger\nor consolidation of the Company with any other corporation, other than a merger\nor consolidation that would result in the Voting Securities of the Company\noutstanding immediately prior thereto continuing to\n     \n\n                                       1\n\n \nrepresent (either by remaining outstanding or by being converted into Voting\nSecurities of the surviving entity) at least 50% of the total voting power\nrepresented by the Voting Securities of the Company or such surviving entity\noutstanding immediately after such merger or consolidation, or (iv) the\nstockholders of the Company approve a plan of complete liquidation of the\nCompany or an agreement for the sale or disposition by the Company (in one\ntransaction or a series of transactions) of all or substantially all of the\nCompany's assets.\n\n          (c)  Expenses: any expense, liability, or loss, including attorneys'\nfees, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be\npaid in settlement, any interest, assessments, or other charges imposed thereon,\nand any federal, state, local, or foreign taxes imposes as a result of the\nactual or deemed receipt of any payments under this Agreement, paid or incurred\nin connection with investigating, defending, being a witness in, or\nparticipating in (including on appeal), or preparing for any of the foregoing\nin, any Proceeding relating to any Indemnifiable Event.\n\n          (d)  Indemnifiable Event: any event or occurrence that takes place\neither prior to or after the effective date of this Agreement, related to the\nfact that Indemnitee is or was a director or an officer of the Company, or while\na director or officer is or was serving at the request of the Company as a\ndirector, officer, employee, trustee, agent, or fiduciary of another foreign or\ndomestic corporation, partnership, joint venture, employee benefit plan, trust,\nor other enterprise, or was a director, officer, employee, or agent of a foreign\nor domestic corporation that was a predecessor corporation of the Company or of\nanother enterprise at the request of such predecessor corporation, or related to\nanything done or not done by Indemnitee in any such capacity.\n\n          (e)  Independent Counsel: the person or body appointed in connection\nwith Section 3.\n\n          (f)  Potential Change In Control: shall be deemed to have occurred if\n(i) the Company enters into an agreement or arrangement, the consummation of\nwhich would result in the occurrence of a Change in Control, (ii) any person\n(including the Company) publicly announces an intention to take or to consider\ntaking actions that, if consummated, would constitute a Change in Control, (iii)\nany person (other than an Excluded Person) who is or becomes the Beneficial\nOwner, directly or indirectly, of securities of the Company representing 10% or\nmore of the combined voting power of the Company's then outstanding Voting\nSecurities, increases his beneficial ownership of such securities by 5% or more\nover the percentage so owned by such person on the date hereof, or (iv) the\nBoard adopts a resolution to the effect that, for purposes of this Agreement, a\nPotential Change in Control has occurred.\n\n          (g)  Proceeding: (i) any threatened, pending, or complete action,\nsuit, or proceeding, whether civil, criminal, administrative, investigative, or\nother, or (ii) any inquiry, hearing, or investigation, whether conducted by the\nCompany or any other party, that Indemnitee in good faith believes might lead to\nthe institution of any such action, or proceeding.\n\n                                       2\n\n \n          (h)  Reviewing Party: the person or body appointed in accordance with\nSection 3.\n\n          (i)  Voting Securities: any securities of the Company that vote\ngenerally in the election of directors.\n\n     2.   Agreement To Indemnify.\n          ---------------------- \n\n          (a)  General Agreement. In the event Indemnitee was, is, or become a\n               -----------------\nparty to or witness or other participant in, or is threatened to be made a party\nto or witness or other participant in, a Proceeding by reason of (or arising in\npart out of) an Indemnifiable Event, the Company shall indemnify Indemnitee from\nand against any and all Expenses to the fullest extent permitted by law, as the\nsame exists or may hereafter be amended or interpreted (but in the case of any\nsuch amendment or interpretation, only to the extent that such amendment or\ninterpretation permits the Company to provide broader indemnification rights\nthan were permitted prior thereto). The parties hereto intend that this\nAgreement shall provide for indemnification in excess of that expressly\npermitted by statute, including, without limitation, any indemnification\nprovided by the Company's Amended and Restated Certificate of Incorporation, its\nbylaws, vote of its stockholders or disinterested directors, or applicable law.\n\n          (b)  Initiation Of Proceeding. Notwithstanding anything in this\n               ------------------------  \nAgreement to the contrary, Indemnitee shall not be entitled to indemnification\npursuant to this Agreement in connection with any Proceeding initiated by\nIndemnitee against the Company or any director or officer of the Company unless\n(i) the Company has joined in or the Board has consented to the initiation of\nsuch Proceeding, (ii) the Proceeding is one to enforce indemnification rights\nunder Section 5, or (iii) the Proceeding is instituted after a Change in Control\nand Independent Counsel has approved its initiation.\n\n          (c)  Expense Advances. If so requested by Indemnitee, the Company\n               ----------------\nshall advance (within ten business days of such request) any and all Expenses to\nIndemnitee (an \"Expense Advance\"); provided that such request shall be\naccompanied by reasonable evidence of the expenses incurred by Indemnitee and\nthat, if and to the extent that the Reviewing Party determines that Indemnitee\nwould not be permitted to be so indemnified under applicable law, the Company\nshall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse\nthe Company) for all such amounts theretofore paid. If Indemnitee has commenced\nlegal proceedings in a court of competent jurisdiction to secure a determination\nthat Indemnitee should be indemnified under applicable law, as provided in\nSection 4, any determination made by the Reviewing Party that Indemnitee would\nnot be permitted to be indemnified under applicable law shall not be binding and\nIndemnitee shall not be required to reimburse the Company for any Expense\nAdvance until a final judicial determination is made with respect thereto (as to\nwhich all rights of appeal therefrom have been exhausted or have lapsed).\n\n          (d)  Mandatory Indemnification. Notwithstanding any other provision of\n               -------------------------\nthis Agreement (other than Section 2(f) below), to the extent that Indemnitee\nhas been successful on the merits in defense of any Proceeding relating in whole\nor in part to an\n\n                                       3\n\n \nIndemnifiable Event or in defense of any issue or matter therein, Indemnitee\nshall be indemnified against all Expenses incurred in connection therewith.\n\n          (e)  Partial Indemnification. If Indemnitee is entitled under any\n               -----------------------\nprovision of this Agreement to indemnification by the Company for some or a\nportion of Expenses, but not, however, for the total amount thereof, the Company\nshall nevertheless indemnify Indemnitee for the portion thereof to which\nIndemnitee is entitled.\n\n          (f)  Prohibited Indemnification. No indemnification pursuant to this\n               --------------------------\njudgment is rendered against Indemnitee for an accounting of profits made from\nthe purchase or sale by Indemnitee of securities of the Company pursuant to the\nprovisions of Section 16(b) of the Act or similar provisions of any federal,\nstate or local laws.\n\n     3.   Reviewing Party.\n          --------------- \n\n     Prior to any Change in Control, the Reviewing Party shall be any\nappropriate person or body consisting of a member or members of the Board or any\nother person or body appointed by the Board who is not a party to the particular\nProceeding with respect to which Indemnitee is seeking indemnification; after a\nChange in Control, the Reviewing Party shall be the Independent Counsel referred\nto below. With respect to all matters arising after a Change in Control (other\nthan a Change in Control approved by a majority of the directors on the Board\nwho were directors immediately prior to such Change in Control) concerning the\nrights of Indemnitee to indemnity payments and Expense Advances under this\nAgreement or any other agreement or under applicable law or the Company's\nAmended and Restated Certificate of Incorporation or bylaws now or hereafter in\neffect relating to indemnification for Indemnifiable Events, the Company shall\nseek legal advice only from Independent Counsel selected by Indemnitee and\napproved by the Company and who has not otherwise performed services for the\nCompany or the Indemnitee (other than in connection with indemnification\nmatters) within the last five years. The Independent Counsel shall not include\nany person who, under the applicable standards of professional conduct then\nprevailing would have a conflict of interest in representing either the Company\nor Indemnitee in an action to determine Indemnitee's rights under this\nAgreement. Such counsel, among other things, shall render its written opinion to\nthe Company and Indemnitee as to whether and to what extent the Indemnitee\nshould be permitted to be indemnified under applicable law. The Company agrees\nto pay the reasonable fees of the Independent Counsel and to indemnify fully\nsuch counsel against any and all expenses (including attorney's fees), claims,\nliabilities, loss, and damages arising out of or relating to this Agreement or\nthe engagement of Independent Counsel pursuant hereto.\n\n     4.   Indemnification Process And Appeal.\n          ---------------------------------- \n\n          (a)  Suit To Enforce Rights. Regardless of any action by the Reviewing\n               ----------------------\nParty, if Indemnitee has not received full indemnification within 60 days after\nmaking a request in accordance with Section 2(c), Indemnitee shall have the\nright to enforce its indemnification rights under this Agreement by commencing\nlitigation, in any\n\n                                       4\n\n \nappropriate court having subject matter jurisdiction thereof and in which venue\nis proper, seeking an initial determination by the court or challenging any\ndetermination by the Reviewing Party or any aspect thereof, provided, however,\nthat such 60-day period shall be extended for reasonable time, not to exceed\nanother 60 days, if the reviewing party in good faith requires additional time\nfor the obtaining or evaluating of documentation and information relating\nthereto. The Company hereby consents to service of process and to appear in any\nsuch proceeding. Any determination by the Reviewing Party not challenged by the\nIndemnitee shall be binding on the Company and Indemnitee. The remedy provided\nfor in this Section 4 shall be in addition to any other remedies available to\nIndemnitee in law or equity.\n\n          (b)  Defense To Indemnification, Burden Of Proof, And Presumptions. It\n               -------------------------------------------------------------\nshall be a defense to any action brought by Indemnitee against the Company to\nenforce this Agreement (other than an action brought to enforce a claim for\nExpenses incurred in defending a Proceeding in advance of its final disposition\nwhere the required undertaking has been tendered to the Company) that is not\npermissible under applicable law for the Company to indemnify Indemnitee for the\namount claimed. In connection with any such action or any determination by the\nReviewing Party or otherwise as to whether Indemnitee is entitled to be\nindemnified hereunder, the burden of proving such a defense or determination\nshall be on the Company. Neither the failure of the Reviewing Party or the\nCompany (including its Board, independent legal counsel, or its stockholders) to\nhave made a determination prior to the commencement of such action by Indemnitee\nthat indemnification of the claimant is proper under the circumstances because\nIndemnitee has met the standard of conduct set forth in applicable law, nor an\nactual determination by the Reviewing Party or Company (including its Board,\nindependent legal counsel, or its stockholders) that the Indemnitee had not met\nsuch applicable standard of conduct, shall be a defense to the action or create\na presumption that the Indemnitee has not met the applicable standard of\nconduct. For purposes of this Agreement, the termination of any claim, action,\nsuit, or proceeding, by judgment, order, settlement (whether with or without\ncourt approval), conviction, or upon a plea of nolo contendere, or its\nequivalent shall not create a presumption that Indemnitee did not meet any\nparticular standard of conduct or have any particular belief or that a court has\ndetermined that indemnification is not permitted by applicable law.\n\n     5.   Indemnification For Expenses Incurred In Enforcing Rights.\n          --------------------------------------------------------- \n\n     The Company shall indemnify Indemnitee against any and all Expenses and, if\nrequested by Indemnitee, shall (within ten business days of such request),\nadvance such Expenses to Indemnitee, that are incurred by Indemnitee in\nconnection with any claim asserted against or covered action brought by\nIndemnitee for (i) indemnification of Expenses or Expense Advances by the\nCompany under this Agreement or any other agreement or under applicable law or\nthe Company's Amended and Restated Certificate of Incorporation or bylaws now or\nhereafter in effect relating to indemnification for Indemnifiable Events, and or\n(ii) recovery under directors' and officers' liability insurance policies\nmaintained by the Company, regardless of whether Indemnitee ultimately is\ndetermined to be entitled to such indemnification, Expense Advances, or\ninsurance recovery, as the case may be.\n\n                                       5\n\n \n     6.   Notification And Defense Of Proceeding.\n          -------------------------------------- \n\n          (a)  Notice. Promptly after receipt by Indemnitee of notice of the\n               ------\ncommencement of any Proceeding, Indemnitee shall, if a claim in respect thereof\nis to be made against the Company under this Agreement, notify the Company of\nthe commencement thereof, but the omission so to notify the Company will not\nrelieve the Company from any liability that it may have to Indemnitee, except as\nprovided in Section 6(c).\n\n          (b)  Defense. With respect to any Proceeding as to which Indemnitee\n               -------\nnotifies the Company of the commencement thereof, the Company shall be entitled\nto participate in the Proceeding at its own expense and except as otherwise\nprovided below, to the extent the Company so wishes, it may assume the defense\nthereof with counsel reasonably satisfactory to Indemnitee. After notice from\nthe Company to Indemnitee of its election to assume the defense of any\nProceeding, the Company shall not be liable to Indemnitee under this Agreement\nor otherwise for any Expenses subsequently incurred by Indemnitee in connection\nwith the defense of such Proceeding other than reasonable costs of investigation\nor as otherwise provided below. Indemnitee shall have the right to employ his or\nher own legal counsel in such Proceeding, but all Expenses related thereto\nincurred after notice from the Company of its assumption of the defense shall be\nat Indemnitee's expense unless: (i) the employment of legal counsel by\nIndemnitee has been authorized by the Company, (ii) Indemnitee has reasonably\ndetermined that there may be a conflict of interest between Indemnitee and the\nCompany in the defense of the Proceeding, (iii) after a Change in Control, the\nemployment of counsel by Indemnitee has been approved by the Independent\nCounsel, or (iv) the Company shall not in fact have employed counsel to assume\nthe defense of such Proceeding, in each of which case all Expenses of the\nProceeding shall be borne by the Company. The Company shall not be entitled to\nassume the defense of any Proceeding brought by or on behalf of the Company or\nas to which Indemnitee shall have made the determination provided for in (ii)\nabove.\n\n          (c)  Settlement Of Claims. The Company shall not be liable to\n               --------------------\nindemnify Indemnitee under this Agreement or otherwise for any amounts paid in\nsettlement of any Proceeding effected without the Company's written consent,\nprovided, however, that if a Change in Control has occurred, the Company shall\nbe liable for indemnification of Indemnitee for amounts paid in settlement if\nthe Independent Counsel has approved the settlement. The Company shall not\nsettle any Proceeding in any manner that would impose any penalty or limitation\non Indemnitee without Indemnitee's written consent. The Company shall not be\nliable to indemnify the Indemnitee under this Agreement with regard to any\njudicial award if the Company was not given a reasonable and timely opportunity,\nat its expense, to participate in the defense of such action; the Company's\nliability hereunder shall not be excused if participation in the Proceeding by\nthe Company was barred by this Agreement.\n\n     7.   Non-Exclusivity.\n          --------------- \n\n     The rights of Indemnitee hereunder shall be in addition to any other rights\nIndemnitee may have under the Company's Amended and Restated Certificate of\n\n                                       6\n\n \nIncorporation, bylaws, applicable law, or otherwise. To the extent that a change\nin applicable law (whether by statute or judicial decision) permits greater\nindemnification by agreement than would be afforded currently under the\nCompany's Amended and Restated Certificate of Incorporation, bylaws, applicable\nlaw, or this Agreement, it is the intent of the parties that Indemnitee enjoy by\nthis Agreement the greater benefits so afforded by such change.\n\n     8.   Liability Insurance.\n          -------------------To the extent the Company maintains an insurance\npolicy or policies providing directors' and officers' liability insurance,\nIndemnitee shall be covered by such policy or policies, in accordance with its\nor their terms, to the maximum extent of the coverage available for any Company\ndirector or officer.\n\n     9.   Amendment Of This Agreement.\n          --------------------------- \n\n     No supplement, modification, or amendment of this Agreement shall be\nbinding unless executed in writing by both of the parties hereto. No waiver of\nany of the provisions of this Agreement shall operate as a waiver of any other\nprovisions hereof (whether or not similar), nor shall such waiver constitute a\ncontinuing waiver. Except as specifically provided herein, no failure to\nexercise or any delay in exercising any right or remedy hereunder shall\nconstitute a waiver thereof.\n\n     10.  Subrogation.\n          ----------- \n\n     In the event of payment under this Agreement, the Company shall be\nsubrogated to the extent of such payment to all of the rights of recovery of\nIndemnitee, who shall execute all papers required and shall do everything that\nmay be necessary to secure such rights, including the execution of such\ndocuments necessary to enable the Company effectively to bring suit to enforce\nsuch rights.\n\n     11.  No Duplication Of Payments.\n          -------------------------- \n\n     The Company shall not be liable under this Agreement to make any payment in\nconnection with any claim made against Indemnitee to the extent Indemnitee has\notherwise received payment (under any insurance policy, bylaw, or otherwise) of\nthe amounts otherwise indemnifiable hereunder.\n\n     12.  Binding Effect.\n          -------------- \n\n     This Agreement shall be binding upon and inure to the benefit of and be\nenforceable by the parties hereto and their respective successors (including any\ndirect or indirect successor by purchase, merger, consolidation, or otherwise to\nall or substantially all of the business and\/or assets of the Company), assigns,\nspouses, heirs, and personal and legal representatives.  The indemnification\nprovided under this Agreement shall continue as to Indemnitee for any action\ntaken or not taken while serving in an indemnified capacity pertaining to an\nIndemnifiable Event even though he or she may have ceased to serve in such\ncapacity at the time of any Proceeding.\n\n                                       7\n\n \n     13.  Severability.\n          ------------ \n\n     If any provision (or portion thereof) of this Agreement shall be held by a\ncourt of competent jurisdiction to be invalid, void, or otherwise unenforceable,\nthe remaining provisions shall remain enforceable to the fullest extent\npermitted by law. Furthermore, to the fullest extent possible, the provisions of\nthis Agreement (including, without limitation, each portion of this Agreement\ncontaining any provision held to be invalid, void, or otherwise unenforceable,\nthat is not itself invalid, void, or unenforceable) shall be construed so as to\ngive effect to the intent manifested by the provision held invalid, void, or\nunenforceable.\n\n     14.  Governing Law.\n          ------------- \n\n     This Agreement shall be governed by and construed and enforced in\naccordance with the laws of the State of Delaware applicable to contracts made\nand to be performed in such state without giving effect to the principles of\nconflicts of laws.\n\n     15.  Notices.\n          ------- \n\n     All notices, demands, and other communications required or permitted\nhereunder shall be made in writing and shall be deemed to have been duly given\nif delivered by hand, against receipt, or mailed, postage prepaid, certified or\nregistered mail, return receipt requested, and addressed to the Company at:\n\n                                AgraQuest, Inc.\n                                1530 Drew Avenue\n                                Davis, CA 95616\n                                Attention: Chief Executive Officer\n\n     Notice of change of address shall be effective only when given in\naccordance with this Section. All notices complying with this Section shall be\ndeemed to have been received on the date of delivery or on the third business\nday after mailing.\n\n     16.  Counterparts.\n          ------------ \n     This Agreement may be executed in one or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and\nthe same instrument.\n\n                                       8\n\n \n     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered\nthis Indemnification Agreement as of the day specified above.\n\n                                                     AGRAQUEST, INC.       \n\n                                                     By:________________________\n\n                                                     Name:______________________\n\n                                                     Title:_____________________\n                                                                           \n\n                                                     INDEMNITEE            \n\n                                                     By:________________________\n\n                                                     Name:______________________\n                 \n\n                                       9\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6597],"corporate_contracts_industries":[9451],"corporate_contracts_types":[9553,9557],"class_list":["post-40791","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-agraquest-inc","corporate_contracts_industries-manufacturing__chemicals","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40791","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40791"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40791"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40791"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40791"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}