Exhibit 10.2
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is made as of this
day of ,
20 , by and between Quidel Corporation, a Delaware
corporation (the “ Company ”) and
(“ Indemnitee ”).
RECITALS
WHEREAS, the Board of Directors has
determined that in order to attract and retain qualified persons as
directors and officers of the Company, it is in the best interests
of the Company and its stockholders to assure such persons that
there will be adequate certainty of protection through insurance
and indemnification against risks of claims and actions against
them arising out of their service to and activities on behalf of
the Company; and
WHEREAS, the Company has adopted
provisions in its By-laws providing for indemnification of its
officers and directors to the fullest extent permitted by
applicable law, and the Company wishes to clarify and detail the
rights and obligations of the Company and Indemnitee with respect
to indemnification; and
WHEREAS, in order to induce and
encourage highly experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the
Company and in any other capacity with respect to the Company, and
to otherwise promote the desirable end that such persons will
resist what they consider unjustified lawsuits and claims made
against them in connection with the good faith performance of their
duties to the Company, with the knowledge that certain costs,
judgments, penalties, fines, liabilities and expenses incurred by
them in their defense of such litigation are to be borne by the
Company and they will receive the maximum protection against such
risks and liabilities as may be afforded by law, the Board of
Directors of the Company has determined that the following
Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and
WHEREAS, the Company desires to have
Indemnitee continue to serve as a director and/or officer of the
Company and in such other capacity with respect to the Company as
the Company may request, as the case may be, free from undue
concern for unpredictable, inappropriate or unreasonable legal
risks and personal liabilities by reason of Indemnitee acting in
good faith in the performance of Indemnitee’s duty to the
Company; and Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter.
Now, therefore, in consideration of
Indemnitee’s continued service as a director and/or officer
of the Company, the parties hereto agree as follows:
AGREEMENT
1.
Service by Indemnitee
. Indemnitee will serve and/or
continue to serve as a director or officer of the Company
faithfully and to the best of Indemnitee’s ability so long as
Indemnitee is duly elected or appointed and until such time as
Indemnitee is removed as permitted by law or tenders a resignation
in writing.
2.
Indemnification
. The Company shall indemnify
Indemnitee to the fullest extent permitted by the Delaware General
Corporation Law in effect on the date hereof or as such law may be
amended from time to time (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the
Company to provide prior to such amendment). Without
diminishing the scope of the indemnification provided by this
Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights
hereinafter set forth, except that no indemnification shall be paid
to Indemnitee:
(a)
for which payment is actually made
to Indemnitee under a valid and collectible insurance policy or
under a valid and enforceable indemnity clause, by-law or agreement
of the Company or any other company or organization on whose board
Indemnitee serves at the request of the Company, except in respect
of any indemnity exceeding the payment under such insurance,
clause, by-law or agreement;
(b)
in connection with an action, suit
or proceeding, or part thereof (including claims and counterclaims)
initiated or brought voluntarily by Indemnitee and not by way of
defense, except a judicial proceeding or arbitration pursuant to
Section 11 to enforce rights under this Agreement, unless the
action, suit or proceeding (or part thereof) was authorized by the
Board of Directors of the Company;
(c)
on account of Indemnitee’s
conduct which is finally adjudged to have been knowingly fraudulent
or deliberately dishonest, or to constitute willful
misconduct;
(d)
on account of any suit in which
judgment is rendered against Indemnitee for an accounting of
profits made for the purchase or sale by Indemnitee of securities
of the Company pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar
successor statute;
(e)
with respect to any action, suit or
proceeding brought by or on behalf of the Company against
Indemnitee that is authorized by the Board of Directors of the
Company, except as provided in Sections 4, 5 and 6 below;
and
(f)
if a final decision by a court
having competent jurisdiction in the matter shall determine that
such indemnification is not lawful.
3.
Action or Proceedings Other than
an Action by or in the Right of the Company . Except as limited by Section 2
above, Indemnitee shall be entitled to the indemnification rights
provided in this Section if Indemnitee is a party or is
threatened to be made a party to any Proceeding (defined below)
(other than an action by or in the right of the Company) by reason
of the fact that Indemnitee is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent or fiduciary of
any other entity (including, but not limited to, another
corporation, partnership, joint venture, trust or employee benefit
plan); or by reason of anything done or not done by Indemnitee in
any such capacity. Pursuant to this Section, Indemnitee shall
be indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of
Indemnitee, and Expenses (defined below) actually and reasonably
incurred by Indemnitee in connection with such Proceeding, if
Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal Proceeding, had no
reasonable cause to believe his or her conduct was
unlawful.
4.
Indemnity in Proceedings by or in
the Right of the Company . Except as limited by Section 2
above, Indemnitee shall be entitled to the indemnification rights
provided in this Section if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding brought by or in
the right of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or by reason of
anything done or not done by Indemnitee in any such capacity.
Pursuant to this Section, Indemnitee shall be indemnified against
all costs, judgments, penalties, fines, liabilities, amounts paid
in settlement by or on behalf of Indemnitee, and Expenses actually
and reasonably incurred by Indemnitee in connection with such
Proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company; provided , however , that
no such indemnification shall be made in respect of any claim,
issue, or matter as to which Delaware law expressly prohibits such
indemnification by reason of any adjudication of liability of
Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem
proper.
5.
Indemnification for Costs,
Charges and Expenses of Successful Party . Notwithstanding the limitations of
Section 2(e), 3 and 4 above, to the extent that Indemnitee has
been successful, on the merits or otherwise, in whole or in part,
in defense of any action, suit or proceeding (including an action,
suit or proceeding brought by or on behalf of the Company) or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is ultimately determined that Indemnitee is otherwise entitled to
be indemnified against Expenses, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection
therewith.
6.
Partial
Indemnification .
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the costs,
judgments, penalties, fines, liabilities or Expenses actually and
reasonably incurred in connection with any action, suit or
proceeding (including an action, suit or proceeding brought by or
on behalf of the Company), but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such costs, judgments, penalties, fines,
liabilities and Expenses actually and reasonably incurred to which
Indemnitee is entitled.
7.
Contribution
. If the indemnification
provided in Sections 3, 4 and 6 above is unavailable and may not be
paid to Indemnitee for any reason (other than those set forth in
Section 2(a)-(f)), then with respect to any Proceeding in
which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding), the Company shall contribute to the
amount of Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by Indemnitee
to the fullest extent allowed by applicable law, in such proportion
as is appropriate to reflect (i) the relative benefits
received by the Company on the one hand and by the Indemnitee on
the other hand from the transaction from which such Proceeding
arose and (ii) the relative fault of the Company on the one
hand and the Indemnitee other hand in connection with the events
which resulted in such Expenses, judgments, fines or settlement
amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one
hand and of the Indemnitee on the other hand shall be determined by
reference to, among other matters, the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent the circumstances resulting in such Expenses, judgments,
fines or settlement amounts. The Company agrees that it would
not be just and equitable if contribution pursuant to this
Section 7 were
determined by pro rata allocation or
any other method of allocation which does not take into account the
foregoing equitable considerations.
8.
Indemnification for Expenses of a
Witness .
Notwithstanding any other provision of this Agreement, to the
maximum extent permitted by applicable law, Indemnitee shall be
entitled to indemnification against all Expenses actually and
reasonably incurred or suffered by Indemnitee or on
Indemnitee’s behalf if Indemnitee appears as a witness or
otherwise incurs legal expenses as a result of or related to
Indemnitee’s service as a director, officer, employee, agent
or fiduciary of the Company or, at the request of the Company, of
any other entity, in any threatened, pending or completed legal,
administrative, investigative or other proceeding or matter to
which Indemnitee neither is, nor is threatened to be made, a
party.
9.
Determination of Entitlement to
Indemnification .
Upon written request by Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 8, the entitlement of
Indemnitee to indemnification, to the extent not provided pursuant
to the terms of this Agreement, shall be determined by the
following person or persons who shall be empowered to make such
determination: (a) the Board of Directors of the Company
by a majority vote of Disinterested Directors (defined below),
whether or not such majority constitutes a quorum; (b) a
committee of Disinterested Directors designated by a majority vote
of such directors, whether or not such majority constitutes a
quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (defined
below) in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; or (d) the
stockholders of the Company. Such
