Exhibit 10.35
INDEMNIFICATION AGREEMENT
This Agreement is made as of the
day of
200 , by and between Danaher
Corporation, a Delaware corporation (the “Corporation), and
(the “Indemnitee”), a director or officer of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors and officers the
most capable persons available; and
WHEREAS, the Corporation and
Indemnitee recognize the continued difficulty in obtaining
appropriate liability insurance coverage for the
Corporation’s directors and officers in light of the
significant and continual increases in the cost of such insurance
and the general trend of insurance companies to reduce the scope of
coverage of such insurance; and
WHEREAS, the Corporation and
Indemnitee further recognize the increase in corporate litigation
in general, subjecting directors and officers to expensive
litigation risks at the same time as the availability, cost and
scope of coverage of liability insurance provide increasing
challenges to the Corporation; and
WHEREAS, it is now and has always
been the express policy of the Corporation to indemnify its
directors and officers; and
WHEREAS, the Corporation desires the
Indemnitee to serve, or continue to serve, as a director or officer
of the Corporation.
NOW THEREFORE, the Corporation and
the Indemnitee do hereby agree as follows:
1. Agreement to Serve . The
Indemnitee agrees to serve or continue to serve as a director or
officer of the Corporation for so long as the Indemnitee is duly
elected or appointed or until the effective date of
Indemnitee’s resignation, if earlier.
2. Definitions . As used in
this Agreement:
(a) The term “Change in
Control” shall mean the earliest to occur after the date of
this Agreement of any one of the following:
(i) any Person (as defined below) is
or becomes the Beneficial Owner (as defined below), directly or
indirectly, of securities of the Corporation representing thirty
percent (30%) or more of the combined voting power of the
Corporation’s then outstanding securities;
(ii) during any period of two
(2) consecutive years (not including any period prior to the
execution of this Agreement), individuals who at the beginning of
such period constitute the Board of Directors of the Corporation
(the “Board”), and any new director (other than
(x) any director designated by a person who has entered into
an agreement with the Corporation to effect a transaction described
in Sections 2(a)(i), 2(a)(iii), 2(a)(iv) or 2(a)(v), and
(y) any director whose initial assumption of office occurs as
a result of an actual or threatened
election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person) whose election by
the Board or nomination for election by the Corporation’s
stockholders was approved by a vote of at least a majority of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a least a majority of the members of the
Board;
(iii) the effective date of a merger
or consolidation of the Corporation with any other entity, other
than a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior to such
merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined voting power
of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power
to elect at least a majority of the board of directors or other
governing body of such surviving entity;
(iv) the effective date of the sale
or disposition by the Corporation of all or substantially all of
the Corporation’s assets; and
(v) the approval by the stockholders
of the Corporation of a complete liquidation or dissolution of the
Corporation.
For purposes of this
Section 2(a), the following terms shall have the following
meanings:
(A) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
(B) “Person” shall have
the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude
(i) the Corporation, (ii) any trustee or other fiduciary
holding securities under an employee benefit plan of the
Corporation, (iii) any corporation owned, directly or
indirectly, by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the
Corporation, and (iv) Steven Rales, Mitchell Rales and their
respective controlled affiliates.
(C) “Beneficial Owner”
shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided, however, that Beneficial Owner shall
exclude any Person otherwise becoming a Beneficial Owner by reason
of the stockholders of the Corporation approving a merger of the
Corporation with another entity.
(b) The term “Corporate
Status” shall mean the status of a person who is or was, or
has agreed to become, a director or officer of the Corporation, or
is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer, fiduciary, partner, trustee,
member or employee of, or in a similar capacity with, any
Enterprise.
(c) The term
“Enterprise” shall mean the Corporation and any other
corporation, partnership, joint venture, trust, limited liability
company, employee benefit plan or other enterprise of which
Indemnitee is or was serving, or has agreed to serve, at the
request of the Corporation as a director, officer, fiduciary,
partner, trustee, member or employee, or in any similar
capacity.
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(d) The term “Expenses”
shall include, without limitation, attorneys’ fees,
retainers, court costs, transcript costs, fees and expenses of
experts, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in
connection with investigations, judicial or administrative
proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in
settlement.
(e) References to
“fines” shall include any excise tax assessed with
respect to any employee benefit plan; references to “serving
at the request of the Corporation” shall include any service
as a director, officer, fiduciary, partner, trustee, member or
employee of the Corporation which imposes duties on, or involves
services by, such person with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred
to in this Agreement.
(f) The term “Independent
Counsel” shall mean a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
currently is, nor in the past five years has been, retained to
represent: (i) the Corporation or the Indemnitee in any matter
material to either such party or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Corporation
or the Indemnitee in an action to determine the Indemnitee’s
rights under this Agreement. The Corporation agrees to fully
indemnify the Independent Counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(g) The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether
brought by or in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative or investigative
nature, and any appeal therefrom.
3. Indemnity of Indemnitee .
Subject to Sections 6, 7 and 9, the Corporation shall indemnify the
Indemnitee in connection with any Proceeding as to which the
Indemnitee is, was or is threatened to be made a party (or is
otherwise involved) by reason of the Indemnitee’s Corporate
Status, to the fullest extent permitted by law (as such may be
amended from time to time). In furtherance of the foregoing and
without limiting the generality thereof:
(a) Indemnification in
Third-Party Proceedings . The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this
Section 3(a) if the Indemnitee was or is a party to or is
threatened to be made a party to any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a
judgment in its favor or a Proceeding referred to in Section 6
below) by reason of the Indemnitee’s Corporate Status or
by
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reason of any action alleged to have been taken
or omitted in connection therewith, against all Expenses,
judgments, fines, penalties and amounts paid in settlement actually
and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation
and, with respect to any criminal Proceeding, had no reasonable
cause to believe that his or her conduct was unlawful.
(b) Indemnification in
Proceedings by or in the Right of the Corporation . The
Corporation shall indemnify the Indemnitee in accordance with the
provisions of this Section 3(b) if the Indemnitee was or is a
party to or threatened to be made a party to any Proceeding by or
in the right of the Corporation to procure a judgment in its favor
(other than a Proceeding referred to in Section 6 below) by
reason of the Indemnitee’s Corporate Status or by reason of
any action alleged to have been taken or omitted in connection
therewith, against all Expenses actually and reasonably incurred by
or on behalf of the Indemnitee in connection with the defense or
settlement of such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation,
except that, if applicable law so requires, no indemnification
shall be made under this Section 3(b) in respect of any claim,
issue, or matter as to which the Indemnitee shall have been
adjudged to be liable to the Corporation, unless, and only to the
extent, that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in
view of all the circumstances of the case, the Indemnitee is fairly
and reasonably entitled to indemnity for such Expenses as the Court
of Chancery or such other court shall deem proper.
4. Indemnification of Expenses of
Successful Party . Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein (other than a
Proceeding referred to in Section 6), the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by or on behalf of the Indemnitee in connection therewith. For
purposes of this Section and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
5. Indemnification for Expenses
of a Witness . To the extent that the Indemnitee is, by reason
of the Indemnitee’s Corporate Status, a witness in any
Proceeding to which the Indemnitee is not a party, the Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection
therewith.
6. Exceptions to Right of
Indemnification . Notwithstanding anything to the contrary in
this Agreement, the Corporation shall not indemnify the Indemnitee
under this Agreement:
(a) in connection with a Proceeding
(or part thereof) initiated by the Indemnitee unless the initiation
thereof was (i) approved by the Board, or (ii) in
connection with successfully establishing Indemnitee’s right
to indemnification or advancement of Expenses under this Agreement;
or
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(b) to the extent the Indemnitee is
reimbursed from the proceeds of insurance, and in the event the
Corporation makes any indemnification payments to the Indemnitee
and the Indemnitee is subsequently reimbursed from the proceeds of
insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such
insurance reimbursement.
7. Notification and Defense of
Claim .
(a) The Indemnitee shall notify the
Corporation in writing as soon as practicable of any Proceeding for
which indemnity will or could be sought and provide the Corporation
with a copy of any summons, citation, subpoena, complaint,
indictment, information or other document relating to such
Proceeding with which Indemnitee is served. The failure to so
notify the Corporation will not relieve the Corporation from any
liability that it may have to Indemnitee exce
