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Exhibit 10.10
INDEMNIFICATION
AGREEMENT
This Agreement
made and entered into this day
of 2007
(the "Agreement"), by and between Helicos BioSciences Corporation,
a Delaware corporation (the "Company," which term shall include,
where appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company)
and (the
"Indemnitee"):
WHEREAS, it is
essential to the Company that it be able to retain and attract as
directors the most capable persons available;
WHEREAS,
increased corporate litigation has subjected directors to
litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have
made it increasingly difficult for the Company to attract and
retain such persons;
WHEREAS, the
Company's By-laws (the "By-laws") require it to indemnify its
directors to the fullest extent permitted by law and permit it to
make other indemnification arrangements and agreements;
WHEREAS, the
Company desires to provide Indemnitee with specific contractual
assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the By-laws or any change in the
ownership of the Company or the composition of its Board of
Directors);
WHEREAS, the
Company intends that this Agreement provide Indemnitee with greater
protection than that which is provided by the Company's By-laws;
and
WHEREAS,
Indemnitee is relying upon the rights afforded under this Agreement
in becoming or continuing as a director of the Company.
NOW, THEREFORE,
in consideration of the promises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1.
Definitions.
-
(a) "Corporate
Status" describes the status of a person who is serving or has
served (i) as a director of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company,
or (iii) as a director, partner, trustee, officer, employee,
or agent of any other Entity at the request of the Company. For
purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as a director, partner,
trustee, officer, employee or agent of a Subsidiary, Indemnitee
shall be deemed to be serving at the request of the
Company.
(b) "Entity"
shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or
other legal entity.
(c) "Expenses"
shall mean all fees, costs and expenses incurred by Indemnitee in
connection with any Proceeding (as defined below), including,
without limitation, attorneys' fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 10 and
11(c) of this Agreement), fees and disbursements of expert
witnesses, private investigators and professional advisors
(including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d) "Indemnifiable
Expenses," "Indemnifiable Liabilities" and "Indemnifiable Amounts"
shall have the meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities"
shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f) "Proceeding"
shall mean any threatened, pending or completed claim, action,
suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee's rights hereunder.
"Subsidiary"
shall mean any corporation, partnership, limited liability company,
joint venture, trust or other Entity of which the Company owns
(either directly or through or together with another Subsidiary of
the Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2.
Services of
Indemnitee. In
consideration of the Company's covenants and commitments hereunder,
Indemnitee agrees to serve or continue to serve as a director of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee's
service to the Company beyond any period otherwise required by law
or by other agreements or commitments of the parties, if
any.
3.
Agreement to
Indemnify. The
Company agrees to indemnify Indemnitee as follows:
-
(a)
Proceedings Other Than By
or In the Right of the Company. Subject to the exceptions contained in
Section 4(a) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of Indemnitee's
Corporate Status, Indemnitee shall be indemnified by the Company
against all Expenses and Liabilities incurred or paid by Indemnitee
in connection with such Proceeding (referred to herein as
"Indemnifiable Expenses" and "Indemnifiable Liabilities,"
respectively, and collectively as "Indemnifiable
Amounts").
(b)
Proceedings By or In the
Right of the Company. Subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right
of the Company by reason of Indemnitee's Corporate Status,
Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
(c)
Conclusive Presumption
Regarding Standard of Care. In making any determination required to
be made under Delaware law with respect to entitlement to
indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee submitted a
request therefor in accordance with Section 5 of this
Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption.
4.
Exceptions to
Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances other than with respect to any specific claim, issue
or matter involved in the Proceeding out of which Indemnitee's
claim for indemnification has arisen, as follows:
-
(a)
Proceedings Other Than By
or In the Right of the Company. If indemnification is requested under
Section 3(a) and it has been finally adjudicated by a court of
competent jurisdiction that, in connection with such specific
claim, issue or matter, Indemnitee failed to act (i) in good
faith and (ii) in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company, or, with
respect to any criminal Proceeding, Indemnitee had reasonable cause
to believe that Indemnitee's conduct was unlawful, Indemnitee shall
not be entitled to payment of Indemnifiable Amounts
hereunder.
2
-
(b)
Proceedings By or In the
Right of the Company. If indemnification is requested under
Section 3(b) and
-
(i) it
has been finally adjudicated by a court of competent jurisdiction
that, in connection with such specific claim, issue or matter,
Indemnitee failed to act (A) in good faith and (B) in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, Indemnitee shall not be entitled
to payment of Indemnifiable Expenses hereunder; or
(ii) it
has been finally adjudicated by a court of competent jurisdiction
that Indemnitee is liable to the Company with respect to such
specific claim, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue
or matter unless the Court of Chancery or another court in which
such Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
(iii) it
has been finally adjudicated by a court of competent jurisdiction
that Indemnitee is liable to the Company for an accounting of
profits made from the purchase or sale by the Indemnitee of
securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, the
rules and regulations promulgated thereunder and amendments thereto
or similar provisions of any federal, state or local statutory law,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder.
(c)
Insurance
Proceeds. To the
extent payment is actually made to the Indemnitee under a valid and
collectible insurance policy in respect of Indemnifiable Amounts in
connection with such specific claim, issue or matter, Indemnitee
shall not be entitled to payment of Indemnifiable Amounts hereunder
except in respect of any excess beyond the amount of payment under
such insurance.
5.
Procedure for Payment of
Indemnifiable Amounts. Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay such Indemnifiable
Amounts to Indemnitee promptly upon receipt of its request. At the
request of the Company, Indemnitee shall furnish such documentation
and information as are reasonably available to Indemnitee and
necessary to establish that Indemnitee is entitled to
indemnification hereunder.
6.
Indemnification for
Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the
merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee's
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