{"id":40816,"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-maxygen-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-maxygen-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-maxygen-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Maxygen Inc."},"content":{"rendered":"<pre>                           INDEMNIFICATION AGREEMENT\n\n     THIS INDEMNIFICATION AGREEMENT (the 'Agreement') is effective as of the\n____ day of _________, 199_, by and between Maxygen, Inc., a Delaware\ncorporation (the 'Company'), and __________________, an individual\n('Indemnitee').\n\n                                  BACKGROUND\n\n     A.   Indemnitee is a member of the Board of Directors of the Company and,\nin that capacity, performs a valuable service for the Company. For a variety of\nreasons, including the frequency, magnitude and often baseless nature of claims\nand actions brought against corporate directors and officers generally, it is\ndifficult for corporations to attract and retain highly competent persons as\ndirectors and officers. In addition, there exists uncertainty, both as to\nmatters of 'substance' and 'procedure,' about the protection against such claims\nprovided by statutory, charter and bylaw provisions and through 'director and\nofficer' insurance.\n\n     B.   The Company's Certificate of Incorporation also provides for\nindemnification of, and advancement of expenses to, the directors and officers\nof the Company to the maximum extent authorized by the Delaware General\nCorporation Law, as amended (the 'DGCL'), and, together with the DGCL, permits,\nby its nonexclusive nature, the establishment of indemnification agreements\nbetween the Company and its directors and officers.\n\n     C.   In order to induce Indemnitee to continue to serve as a member of the\nBoard of Directors and to clarify the specific procedure for addressing\nindemnification matters if and as they arise, the Company and the Indemnitee\nhereby agree to contractual indemnification arrangements on the terms set forth\nin this Agreement.\n\n     THE PARTIES AGREE AS FOLLOWS:\n\n     1.   Definitions.  For purposes of this Agreement, the following terms have\n          -----------  \nthe following meanings:\n\n               a.   'Agent' means any person (i) who is or was a director,\nofficer, employee or other agent of the Company or (ii) who is or was serving at\nthe request of the Company, or otherwise as a result of that person's\nrelationship with the Company, as a director, officer, employee or other agent\nof another foreign or domestic corporation or of any partnership, joint venture,\ntrust or other enterprise (including, without limitation, service with respect\nto employee benefit plans).\n\n               b.   'Change in Control' shall be deemed to have occurred if (i)\nany 'person' (as such term is used in Sections 13(d) and 14(d) of the Securities\nExchange Act of 1934, as amended), other than a trustee or other fiduciary\nholding securities under\n\n \nan employee benefit plan of the Company or a corporation owned directly or\nindirectly by the stockholders of the Company in substantially the same\nproportions as their ownership of stock of the Company, becomes the 'beneficial\nowner' (as defined in Rule 13d-3 under said Act), directly or indirectly, of\nsecurities of the Company representing 20% or more of the total voting power\nrepresented by the Company's then outstanding Voting Securities, or (ii) during\nany period of two consecutive years, individuals who at the beginning of such\nperiod constitute the Board of Directors of the Company and any new director\nwhose election by the Board of Directors or nomination for election by the\nCompany's stockholders was approved by a vote of at least two-thirds (2\/3) of\nthe directors then still in office who either were directors at the beginning of\nthe period or whose election or nomination for election was previously so\napproved, cease for any reason to constitute a majority thereof, or (iii) the\nstockholders of the Company approve a merger or consolidation of the Company\nwith any other corporation, other than a merger or consolidation which would\nresult in the Voting Securities of the Company outstanding immediately prior\nthereto continuing to represent (either by remaining outstanding or by being\nconverted into Voting Securities of the surviving entity) at least 80% of the\ntotal voting power represented by the Voting Securities of the Company or such\nsurviving entity outstanding immediately after such merger or consolidation, or\nthe stockholders 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.   'Disinterested Director' means a director of the Company who\nneither is nor was a party to the Proceeding in respect of which indemnification\nis sought under this Agreement or otherwise.\n\n               d.   'Expenses' includes any and all direct and indirect costs\n(including, without limitation, attorneys' fees and disbursements, court costs,\nfees and expenses of witnesses, experts, professional advisers and private\ninvestigators, arbitration expenses, costs of attachment, appeal or similar\nbonds, travel expenses, duplicating, printing and binding costs, telephone\ncharges, postage, delivery service fees, and any and all other disbursements or\nout-of-pocket expenses) actually and reasonably incurred by or on behalf of\nIndemnitee in connection with either (i) the investigation, defense, settlement\nor appeal of, or being a witness or participant in, a Proceeding (including\npreparing for any of the foregoing) or (ii) the establishment or enforcement of\nany right to indemnification under this Agreement or otherwise or any right to\nrecovery under any liability insurance policy maintained by the Company;\nprovided, however, that 'Expenses' shall not include any judgments, fines or\namounts paid in settlement.\n\n               e.   'Independent Counsel' means a law firm or attorney that\nneither is presently nor in the past two years has been retained to represent:\n(i) the Company or Indemnitee in any matter material to the Company or\nIndemnitee, or (ii) any\n\n                                      -2-\n\n \nother party to the Proceeding in respect of which indemnification is sought\nunder this Agreement or otherwise.  In addition, the term 'Independent Counsel'\ndoes not include any law firm or attorney who, under the applicable standards of\nprofessional conduct then prevailing, would have a conflict of interest in\nrepresenting either the Company or Indemnitee in an action to determine\nIndemnitee's right to indemnification under this Agreement or otherwise.\n\n               f.   'Liabilities' means liabilities and losses of any type\nwhatsoever, including, without limitation, judgments, fines, excise taxes and\npenalties (including, without limitation, ERISA excise taxes and penalties) and\namounts paid in settlement (including all interest, assessments and other\ncharges paid or payable in connection with or in respect of such liabilities and\nlosses), actually incurred by Indemnitee in connection with or as a result of a\nProceeding.\n\n               g.   'Potential Change in Control' shall be deemed to have\noccurred if\n\n               (i) the Company enters into an agreement, 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 which, if consummated, would constitute a Change in Control;\n(iii) any person, other than a trustee or other fiduciary holding securities\nunder an employee benefit plan of the Company or a corporation owned, directly\nor indirectly, by the stockholders of the Company in substantially the same\nproportions as their ownership of stock of the Company, who is or becomes the\nbeneficial owner, directly or indirectly, of securities of the Company\nrepresenting 9.5% or more of the combined voting power of the Company's then\noutstanding Voting Securities, increases such person's beneficial ownership of\nsuch securities by five percentage points or more over the initial percentage of\nsuch securities equal to or exceeding 9.5% so owned by such person; or (iv) the\nBoard of Directors of the Company adopts a resolution to the effect that, for\npurposes of this Agreement, a Potential Change in Control has occurred.\n\n               h.   'Proceeding' means any threatened, pending or completed\naction, suit or proceeding (including any inquiry, hearing, arbitration\nproceeding or alternative dispute resolution mechanism), whether civil,\ncriminal, administrative or investigative (including any action by or in the\nright of the Company), to which Indemnitee is or was a party, witness or other\nparticipant, or is threatened to be made a party, witness or other participant,\nby reason of the fact that Indemnitee is or was an Agent, or by reason of\nanything done or not done by Indemnitee in that capacity or in any other\ncapacity while serving as an Agent, whether before or after the date of this\nAgreement. 'Proceeding' shall not include any Proceeding initiated by Indemnitee\n(other than as contemplated by Sections 3(d) or 6 of this Agreement) unless such\nProceeding was authorized or consented to by the Board of Directors of the\nCompany.\n\n                                      -3-\n\n \n               i.   'Voting Securities' means any securities of the Company\nwhich vote generally in the election of directors.\n\n     2.   Agreement to Indemnify. Subject to the terms and conditions of, and in\n          ----------------------                                                \naccordance with the procedures set forth in, this Agreement, the Company shall\nhold Indemnitee harmless and indemnify Indemnitee (and Indemnitee's spouse as\nprovided below), to the fullest extent permitted by the provisions of the DGCL\nand other applicable law, from and against all Expenses and Liabilities,\nincluding, without limitation, Expenses and Liabilities arising from any\nProceeding brought by or in the right of the Company or its stockholders.  The\nCompany and Indemnitee intend that this Agreement provide for indemnification in\nexcess of that expressly required, granted or permitted by statute, including,\nwithout limitation, any indemnification provided by the Company's Certificate of\nIncorporation or Bylaws, or by vote of its stockholders or directors, or by\napplicable law.  If, after the date hereof, the DGCL or any other applicable law\nis amended to permit or authorize indemnification of, or advancement of defense\nexpenses to, Indemnitee to a greater extent than is permitted on the date\nhereof, references in this Agreement to the DGCL or any other applicable law\nshall be deemed to refer to the DGCL or such applicable law as so amended.\n\n     3.   Procedural Matters.\n          ------------------ \n\n          a.   Initial Request.  Whenever Indemnitee believes that, in a\nspecific case, Indemnitee is then entitled to indemnification under this\nAgreement or under the Company's Certificate of Incorporation or Bylaws, the\nDGCL or otherwise, Indemnitee shall submit a written notice to the Company\nrequesting an authorization and determination by the Company to that effect. The\nnotice shall describe the matter giving rise to the request and be accompanied\nby all appropriate supporting documentation reasonably available to Indemnitee.\n\n          b.   Determination and Payment.  The Company shall make a\ndetermination about Indemnitee's entitlement to indemnification in the specific\ncase no later than 90 days after receipt of Indemnitee's request. In making that\ndetermination, the person or persons making the determination shall presume that\nIndemnitee met any applicable standard of conduct required for indemnification,\nunless the Company shall have affirmatively shown by clear and convincing\nevidence that Indemnitee did not meet that standard. The determination shall be\nmade by the Board of Directors by a majority vote of a quorum consisting of\nDisinterested Directors. If such a quorum is not obtainable, or, even if\nobtainable, a quorum of Disinterested Directors so directs, the determination\nshall be made by Independent Counsel in a written opinion obtained at the\nCompany's expense. Notwithstanding the foregoing, if there has been a Change in\nControl (other than a Change in Control which has been approved by a majority of\nthe Company's Board of Directors who were directors immediately prior to such\nChange in Control), the determination shall be made by Independent Counsel in a\nwritten opinion\n\n                                      -4-\n\n \nobtained at the Company's expense. If the person or persons empowered to make\nthe determination either: (i) affirmatively makes a determination of\nIndemnitee's entitlement to indemnification or (ii) fails to make any\ndetermination at all within the 90-day period, indemnification shall be\nconsidered as authorized and proper in the circumstances, and Indemnitee shall\nbe absolutely entitled to such indemnification, and shall receive payment as\npromptly as practicable, in the absence of any misrepresentation of a material\nfact by Indemnitee in the request for indemnification, or a specific\ndetermination by a court of competent jurisdiction that all or any part of such\nindemnification is prohibited by applicable law.  If the person or persons\nempowered to make the determination find that the Indemnitee is not entitled to\nindemnification, the Indemnitee shall have the right to apply to a court of\ncompetent jurisdiction for the purpose of enforcing Indemnitee's right to\nindemnification pursuant to this Agreement.  The termination of any Proceeding\nby judgment, order, settlement, arbitration award, conviction or upon a plea of\nnolo contendere or its equivalent shall not, of itself, create a presumption\nthat Indemnitee did not act in good faith and in a manner which Indemnitee\nreasonably believed to be in or not opposed to the best interests of the\nCompany, or that, with respect to any criminal Proceeding, Indemnitee had\nreasonable cause to believe Indemnitee's conduct was unlawful.\n\n          c.   Advancement of Expenses.  If so requested in a writing by\nIndemnitee accompanied by appropriate supporting documentation, the Company\nshall, within ten days after receipt of the request, advance funds for the\npayment of Expenses, whether that request is made before or after the final\ndisposition of a Proceeding (including, without limitation, any criminal\nProceeding or any Proceeding brought by or in the right of the Company or its\nstockholders), unless there has been a final determination that Indemnitee is\nnot entitled to indemnification for those Expenses. If required by law at the\ntime of the advance, the payment of the advance shall be conditioned upon the\nreceipt from Indemnitee of an undertaking (which need not be secured) to repay\nthe advance to the extent that it is ultimately determined that Indemnitee is\nnot entitled to such indemnification by the Company. Any dispute concerning the\nadvancement of Expenses may, at the election of the Indemnitee, be resolved by\narbitration before an arbitrator selected by Indemnitee and approved by the\nCompany. If the parties cannot agree on a single arbitrator, then the claim\nshall be heard by a panel of three arbitrators, with one selected by Indemnitee,\none selected by the Company and one selected jointly by the foregoing two\narbitrators. Each of the arbitrators shall be a litigation or corporate attorney\nwith experience in the field of officer and director indemnification. The\narbitrators shall be selected within (15) days after demand for arbitration and\nshall render a decision within (45) days after selection, unless good cause is\nshown for requiring a longer decision period. The Company shall act in utmost\ngood faith to provide timely information to the arbitrators and to insure\nIndemnitee a full opportunity to defend against the Company's claim that\nIndemnitee is not entitled to an advance of Expenses. The Company shall\nindemnify Indemnitee against all Expenses\n\n                                      -5-\n\n \nincurred by Indemnitee under the dispute resolutions proceedings set forth in\nthis Subsection 3(c), unless a court of competent jurisdiction finds that each\nof the claims and\/or defenses by Indemnitee in the action or proceeding for\nwhich an advance is sought was frivolous or made in bad faith.\n\n          d.   Enforcement.  If Indemnitee has not received a determination of\nentitlement to indemnification or an advance, as the case may be, within the\napplicable time periods for such actions specified in this Agreement, or if it\nhas been determined that Indemnitee substantively would not be permitted to be\nindemnified in whole or in part under applicable law, Indemnitee shall be\nentitled to commence an action in any court of competent jurisdiction (including\nthe court in which the Proceeding (as to which Indemnitee seeks indemnification)\nis or was pending) (i) in the former case, seeking enforcement of Indemnitee's\nrights under this Agreement or otherwise, or seeking an initial determination by\nthe court, or (ii) in the latter case, challenging any such determination or any\naspect thereof, including the legal or factual bases therefor. The Company\nhereby consents to service of process and to appear generally in any such\nproceeding. It shall be a defense to any such action that applicable law does\nnot permit the Company to indemnify Indemnitee for the amount claimed. In any\nsuch action, the Company shall have the burden of proving that indemnification\nor advances are not proper in the circumstances of the specific case. Neither\nthe failure of the Company to have made a determination prior to the\ncommencement of such action that indemnification is proper under the\ncircumstances because Indemnitee has met the standard of conduct under\napplicable law, nor an actual determination by the Company that Indemnitee has\nnot met such standard of conduct, shall be a defense to the action or create a\npresumption that Indemnitee has not met that standard of conduct. The Company\nshall indemnify Indemnitee for Expenses incurred by Indemnitee in connection\nwith the successful establishment or enforcement, in whole or in part, by\nIndemnitee of Indemnitee's right to indemnification or advances.\n\n          e.   Notice by Indemnitee and Defense of Proceedings. Indemnitee shall\npromptly notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document\nrelating to any matter which may give rise to a claim for indemnification under\nthis Agreement or otherwise; provided, however, that a failure of Indemnitee to\nprovide that notice shall relieve the Company from liability only if and to the\nextent that the failure materially prejudices the Company's ability to\nadequately defend Indemnitee in the Proceeding. With respect to any Proceeding\nas to which Indemnitee so notifies the Company:\n\n               i.   The Company shall be entitled to participate at its own\nexpense.\n\n               ii.  Except as otherwise provided below, the Company, jointly\nwith any other indemnifying party similarly notified, shall be entitled to\n\n                                      -6-\n\n \nassume the defense of such Proceeding, with counsel reasonably satisfactory to\nIndemnitee.  After notice from the Company to Indemnitee of the Company's\nelection to assume the defense, the Company shall not be liable to Indemnitee\nunder this Agreement for any Expenses subsequently incurred by Indemnitee, other\nthan as provided below.  Indemnitee shall have the right to employ Indemnitee's\nown counsel in that Proceeding, but the fees and expenses of such counsel\nincurred after notice from the Company of its election so to assume the defense\nshall be borne by Indemnitee, except to the extent that (x) the employment of\ncounsel by Indemnitee has been authorized by the Company, (y) Indemnitee has\nreasonably concluded that there may be a conflict of interest between the\nCompany and Indemnitee in the conduct of the defense of such Proceeding or that\ncounsel selected by the Company may not be adequately representing Indemnitee,\nor (z) the Company has not in fact employed counsel to assume the defense of\nsuch Proceeding.  In those cases, the fees and expenses of Indemnitee's own\ncounsel shall be paid by the Company.\n\n               iii. Neither the Company nor Indemnitee shall unreasonably\nwithhold its or his or her consent to any proposed settlement.  The Company has\nno obligation to indemnify and hold Indemnitee harmless under this Agreement for\nany amounts paid in settlement of any Proceeding effected without its written\nconsent.  The Company shall not settle any Proceeding in any manner which would\nimpose any penalty or limitation on Indemnitee without Indemnitee's written\nconsent.\n\n          f.   Change in Control.  If there is a Change in Control (other than a\nChange in Control which has been approved by a majority of the Company's Board\nof Directors who were directors immediately prior to such Change in Control),\nthen with respect to all matters thereafter arising concerning the rights of\nIndemnitee to indemnification and advances under this Agreement or otherwise,\nthe Company shall seek legal advice only from Independent Counsel selected by\nIndemnitee and approved by the Company, which approval shall not be unreasonably\nwithheld. Such Independent Counsel, among other things, shall render its written\nopinion to the Company and Indemnitee as to whether and to what extent\nIndemnitee would be permitted to be indemnified under applicable law. The\nCompany shall pay the reasonable fees and expenses of such Independent Counsel.\n\n     4.   Nonexclusivity.  The indemnification provided by this Agreement is not\n          --------------                                                        \nexclusive of or inconsistent with any rights to which Indemnitee may be entitled\nunder the Company's Certificate of Incorporation or Bylaws, any other agreement,\nany vote of stockholders or directors, the DGCL, or otherwise, both as to action\nin Indemnitee's official capacity and otherwise.  If and to the extent that a\nchange in the DGCL (whether by statute or judicial decision) permits greater\nindemnification by agreement than would\n\n                                      -7-\n\n \nbe afforded currently under the Company's Certificate of Incorporation or Bylaws\nor under this Agreement, it is the intent of the parties hereto that Indemnitee\nshall enjoy by this Agreement the greater benefits so afforded by such change.\n\n     5.   Partial Indemnification.  If Indemnitee is entitled to indemnification\n          ----------------------- \nby the Company for some or a portion of Expenses or Liabilities but not for the\ntotal amount, the Company shall nevertheless indemnify Indemnitee for the\nportion of such Expenses and Liabilities to which Indemnitee is entitled to be\nindemnified. Moreover, notwithstanding any other provision of this Agreement, to\nthe extent that Indemnitee has been successful on the merits or otherwise in\ndefense of any Proceeding or in defense of any claim, issue or matter therein,\nincluding dismissal without prejudice, Indemnitee shall be indemnified against\nall Expenses incurred by Indemnitee in connection therewith.\n\n     6.   Liability Insurance.  To the extent the Company maintains an insurance\n          -------------------                                                   \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, as the case may be.  If Indemnitee serves as a fiduciary of\nany employee benefit plan of the Company or any of its subsidiary or affiliated\ncorporations, then to the extent that the Company maintains an insurance policy\nor policies providing fiduciaries' liability insurance, Indemnitee shall be\ncovered by such policy or policies in accordance with its or their terms, to the\nmaximum extent of the coverage available for any fiduciary.  In the event of a\nPotential Change in Control, the Company shall maintain in force any and all\ninsurance policies then maintained by the Company providing directors' and\nofficers' liability insurance or fiduciaries' liability insurance, in respect of\nIndemnitee, for a period of six years thereafter.  Upon notice to the Company,\neither from Indemnitee or from any other source, of the commencement or threat\nof commencement of any Proceeding or matter which may give rise to a claim for\nindemnification of Indemnitee and which may be covered by any insurance policy\nmaintained by the Company, the Company shall promptly give notice to the insurer\nin accordance with the procedures prescribed by such policy and shall thereafter\ntake all necessary or appropriate action to cause such insurer to pay, to or on\nbehalf of Indemnitee all Liabilities and Expenses payable under such policy with\nrespect to such Proceeding or matter.  The Company shall indemnify Indemnitee\nfor Expenses incurred by Indemnitee in connection with any successful action\nbrought by Indemnitee for recovery under any insurance policy referred to in\nthis Section 6 and shall advance to Indemnitee the Expenses of such action in\nthe manner provided in Section 3(c) above.\n\n     7.   Other Sources. Indemnitee shall not be required to exercise any rights\n          -------------                                                         \nIndemnitee may have against any other parties (for example, under an insurance\npolicy purchased by Indemnitee, the Company or any other person or entity)\nbefore Indemnitee exercises or enforces Indemnitee's rights under this\nAgreement.  However, to the extent\n\n                                      -8-\n\n \nthe Company actually indemnifies Indemnitee or advances Indemnitee funds in\nrespect of Expenses, the Company shall be entitled to enforce any such rights\nwhich Indemnitee may have against third parties. Indemnitee shall assist the\nCompany in enforcing those rights if it pays Indemnitee's costs and expenses of\ndoing so. If Indemnitee is actually indemnified or advanced Expenses by any such\nthird party, then, for so long as Indemnitee is not required to disgorge the\namounts so received, to that extent the Company shall be relieved of its\nobligation to indemnify Indemnitee or to advance Expenses.\n\n     8.   Certain Relationships.  The obligations and rights created under this\n          ---------------------                                                \nAgreement shall not be affected by any amendment to the Company's Certificate of\nIncorporation or Bylaws or any other agreement or instrument to which Indemnitee\nis not a party, and shall not diminish any other rights which Indemnitee now or\nin the future has against the Company or any other person or entity.\n\n     9.   Severability.  If any provision of this Agreement is determined to be\n          ------------                                                         \nunenforceable for any reason, it shall be adjusted rather than voided, if\npossible, in order to achieve the intent of the Company and Indemnitee.  In any\nevent, the remaining provisions of this Agreement shall remain enforceable to\nthe maximum extent possible.\n\n     10.  Contribution.  If the indemnification provided in Section 2 of this\n          ------------                                                       \nAgreement is unavailable, then, in respect of any Proceeding in which the\nCompany is jointly liable with Indemnitee (or would be if joined in the\nProceeding), the Company shall contribute to the amount of Expenses and\nLiabilities as appropriate to reflect: (i) the relative benefits received by the\nCompany, on the one hand, and Indemnitee, on the other hand, from the\ntransaction from which the Proceeding arose, and (ii) the relative fault of the\nCompany, on the one hand, and of Indemnitee, on the other, in connection with\nthe events which resulted in such Expenses and Liabilities, as well as any other\nrelevant equitable considerations.  The relative fault of the Company, on the\none hand, and of Indemnitee, on the other, shall be determined by reference to,\namong other things, the parties' relative intent, knowledge, access to\ninformation and opportunity to correct or prevent the circumstances resulting in\nsuch Expenses and Liabilities.  The Company agrees that it would not be just and\nequitable if contribution pursuant to this Section 10 were determined by pro\nrata allocation or any other method of allocation which does not take account of\nthe equitable considerations described in this Section 10.\n\n     11.  Governing Law.  This Agreement shall be governed by and construed and\n          -------------                                                        \nenforced in accordance with the laws of the State of Delaware applicable to\ncontracts made and to be performed in such state without giving effect to the\nprinciples of conflicts of laws.  This Agreement is intended to be an agreement\nof the type contemplated by Section 145(f) of the DGCL.\n\n                                      -9-\n\n \n     12.  Notices.  All notices and other communications under this Agreement\n          -------     \nshall be in writing and shall be given by personal or courier delivery,\nconfirmed facsimile or telex transmission or first class mail, and shall be\ndeemed to have been duly given upon receipt if personally delivered or delivered\nby courier, on the date of transmission if transmitted by facsimile or telex, or\nthree days after mailing if mailed, to the addresses set forth below:\n\n          If to Indemnitee:\n\n          ____________________\n          ____________________\n          ____________________\n          ____________________\n\n          If to the Company:\n\n          Maxygen, Inc.\n          515 Galveston Drive\n          Redwood City, CA  94063\n          Attn:  President\n\nor to such other address as either party may designate by notice to the other\nfrom time to time.\n\n     13.  Counterparts.  This Agreement may be executed in one or more\n          ------------   \ncounterparts, each of which shall constitute an original.\n\n     14.  Successors and Assigns.  This Agreement shall be binding upon the\n          ----------------------\nCompany and its successors and assigns, and shall inure to the benefit of\nIndemnitee and Indemnitee's spouse, estate, heirs, executors, administrators,\npersonal or legal representatives and assigns. The Company shall require any\nsuccessor corporation (whether by merger, consolidation, or otherwise) by\nwritten agreement in form and substance satisfactory to Indemnitee, expressly to\nassume and agree to perform this Agreement in the same manner and to the same\nextent that the Company would be required to perform if no such succession had\ntaken place.\n\n     15.  Amendment and Waiver.  This Agreement may not be amended except by a\n          --------------------                                                \nwriting executed by both the Company and Indemnitee.  No waiver of any provision\nof this Agreement shall be effective unless in writing and signed by the party\nto be charged therewith.  A waiver of, or a failure to insist on, complete\ncompliance with any provision of this Agreement shall not be construed as a\nwaiver of a subsequent or different non-compliance, breach or default of that or\nany other provision of this Agreement.\n\n                                      -10-\n\n \n     16.  Acknowledgment.  The Company expressly acknowledges that it has\n          --------------    \nentered into this Agreement and assumed the obligations imposed on the Company\nunder this Agreement in order to induce Indemnitee to serve or to continue to\nserve as a director or officer and acknowledges that Indemnitee is relying on\nthis Agreement in serving or continuing to serve in such capacity. The Company\nfurther agrees to stipulate in any court proceeding that the Company is bound by\nall of the provisions of this Agreement.\n\n     17.  Period of Limitations.  No legal action shall be brought and no cause\n          ---------------------     \nof action shall be asserted by or in the right of the Company against\nIndemnitee, estate, heirs, executors, administrators or personal or legal\nrepresentatives after the expiration of two years from the date of accrual of\nsuch cause of action, and any claim or cause of action of the Company shall be\nextinguished and deemed released unless asserted by the timely filing of a legal\naction within such two-year period; provided, however, that if any shorter\nperiod of limitations is otherwise applicable to any such cause of action, such\nshorter period shall govern.\n\n     18.  Duration of Agreement.  This Agreement shall continue in effect for so\n          --------------------- \nlong as Indemnitee is subject to any possible Proceeding, regardless of whether\nIndemnitee continues to serve as an Agent.\n\n     19.  Entire Agreement.  This document contains the final, complete and\n          ----------------   \nexclusive statement of the agreement between the Company and Indemnitee with\nrespect to the subject matter of this Agreement and supersedes any prior or\ncontemporaneous understandings, agreements, communications, correspondence or\nrepresentations by or between the parties, whether written or oral, relating to\nthe subject matter of this Agreement.\n\n                                      -11-\n\n \n          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date set forth in its first paragraph.\n\n                                           MAXYGEN, INC.\n                                          \n                                          \n                                           By:______________________________\n                                          \n                                           Title:___________________________\n                                          \n                                          \n                                          \n                                            ________________________________  \n                                            ________________, Indemnitee\n\n                                      -12-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8151],"corporate_contracts_industries":[],"corporate_contracts_types":[9553,9557],"class_list":["post-40816","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-maxygen-inc","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\/40816","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=40816"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40816"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40816"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}