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Exhibit
10.1
FORM OF INDEMNITY
AGREEMENT
This Agreement is made and
entered into this ____ day of _________, 20__ by and between
Verenium Corporation, a Delaware corporation (the
“Corporation”), and ________________
(“Agent”).
Recitals
Whereas, Agent performs a
valuable service to the Corporation in his or her capacity as
______________________ 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 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 officer of the Corporation 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 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 or her ability so long as he or she 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 or her 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 Section 43 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 begin when the Agent is elected or appointed
as a director, officer, employee or other agent of the Corporation
(or began serving 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 continue during the period Agent is a director,
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