EXHIBIT
10.2
FORM OF
INDEMNITY
AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of
__________, ____ by and between VaxGen, Inc., a Delaware
corporation (the “Corporation”), and _______________
(“Agent”).
RECITALS
WHEREAS, Agent performs a valuable service to the
Corporation in [his/her] capacity as a director and/or executive
officer of the Corporation;
WHEREAS, the stockholders of the Corporation have adopted
bylaws (the “Bylaws”) providing for the indemnification
of the directors, officers, employees and other agents of the
Corporation, including persons serving at the request of the
Corporation in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law,
as amended (the “Code”);
WHEREAS, the Bylaws and the Code, by their non-exclusive
nature, permit contracts between the Corporation and its agents,
officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS, in order to induce Agent to continue to serve as
a director and/or executive officer of the Corporation, the
Corporation has determined and agreed to enter into this Agreement
with Agent;
NOW, THEREFORE, in consideration of Agent’s continued
service as a director and/or executive officer after the date
hereof, the parties hereto agree as follows:
AGREEMENT
1.
Services to the Corporation. Agent will serve, at the will
of the Corporation or under separate contract, if any such contract
exists, as a director and/or executive officer of the Corporation
or as a director, officer or other fiduciary of an affiliate of the
Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of his ability so long as
he is duly elected and qualified in accordance with the provisions
of the Bylaws or other applicable charter documents of the
Corporation or such affiliate; provided, however, that Agent
may at any time and for any reason resign from such position
(subject to any contractual obligation that Agent may have assumed
apart from this Agreement) and that the Corporation or any
affiliate shall have no obligation under this Agreement to continue
Agent in any such position.
2.
Indemnity of Agent. The Corporation hereby agrees to hold
harmless and indemnify Agent to the fullest extent authorized or
permitted by the provisions of the Bylaws and the Code, as the same
may be amended from time to time (but, only to the extent that
such
amendment permits the Corporation to
provide broader indemnification rights than the Bylaws or the Code
permitted prior to adoption of such amendment).
3.
Additional Indemnity. In addition to and not in limitation
of the indemnification otherwise provided for herein, and subject
only to the exclusions set forth in Section 4 hereof, the
Corporation hereby further agrees to hold harmless and indemnify
Agent:
(a) against
any and all expenses (including attorneys’ fees), witness
fees, damages, judgments, fines and amounts paid in settlement and
any other amounts that Agent becomes legally obligated to pay
because of any claim or claims made against or by him in connection
with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative
or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party,
or is threatened to be made a party, by reason of the fact that
Agent is, was or at any time becomes a director, officer, employee
or other agent of Corporation, or is or was serving or at any time
serves at the request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise;
and
(b) otherwise
to the fullest extent as may be provided to Agent by the
Corporation under the non-exclusivity provisions of the Code and
Article 9 of the Bylaws.
4.
Limitations on Additional Indemnity. No indemnity pursuant
to Section 3 hereof shall be paid by the
Corporation:
(a) on
account of any claim against Agent solely for an accounting of
profits made from the purchase or sale by Agent of securities of
the Corporation 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;
(b) on
account of Agent’s conduct that is established by a final
judgment as knowingly fraudulent or deliberately dishonest or that
constituted willful misconduct;
(c) on
account of Agent’s conduct that is established by a final
judgment as constituting a breach of Agent’s duty of loyalty
to the Corporation or resulting in any personal profit or advantage
to which Agent was not legally entitled;
(d) for
which payment is actually made to Agent under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any
excess beyond payment under such insurance, clause, bylaw or
agreement;
(e) if
indemnification is not lawful (and, in this respect, both the
Corporation and Agent have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities
arising under the federal securities laws is against public policy
and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for
adjudication); or
(f) in
connection with any proceeding (or part thereof) initiated by
Agent, or any proceeding by Agent against the Corporation or its
directors, officers, employees or other agents, unless
(i) such indemnification is expressly required to be made by
law, (ii) the proceeding
was authorized by the Board of
Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to
the powers vested in the Corporation under the Code, or
(iv) the proceeding is initiated pursuant to Section 9
hereof.
5.
Continuation of Indemnity. All agreements and obligations of
the Corporation contained herein shall continue during the period
Agent is a director, officer, employee or other agent of the
Corporation (or is or was servin
