THIS
AGREEMENT is made and entered into as of the 9th day of
November , 2006 by and between SOLEXA, INC. ,
a Delaware corporation (the “Corporation”), and
JAMES DILDINE (the “Agent”) .
WHEREAS ,
Agent will perform a valuable service to the Corporation in his
capacity as a SR. DIRECTOR, FINANCE 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”); and
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;
NOW,
THEREFORE , in consideration of Agent’s service as an
officer of the Corporation after the date hereof, the parties
hereto agree as follows:
1. Services to the Corporation. Agent will serve, at
the will of the Corporation or under separate contract, if any such
contract exists, as Officer of the Corporation; provided, however,
that Agent may at any time and for any reason resign from such
position or any other position (subject to any contractual
obligation that Agent may have assumed apart from this Agreement)
and that the Corporation shall have no obligation under this
Agreement to continue Agent in such position or any other
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) from and against any and all Expenses (as defined
below) paid or payable by Agent in connection with or in respect of
a Claim (as defined below). “Claim” means any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any inquiry, hearing
or investigation, whether instituted by the Corporation or any
other party, that Agent in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative
dispute resolution whether civil, criminal, administrative,
investigative or otherwise, each of the foregoing 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 written 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. “Expense” means any and all expenses
(including attorneys’ fees), witness fees,
Page 1 of 7
damages,
judgments, fines and amounts paid in settlement and any other
amounts paid or incurred by Agent in connection with investigating,
defending, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in
any Claim; any and all judgments, fines, losses, liabilities,
penalties, and amounts paid in settlement of any such claim;
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 42 of the Bylaws.
4. Limitations on Additional Indemnity.
(a) No indemnity pursuant to Section 3 hereof
shall be paid by the Corporation:
(i) on account of any claim against Agent 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
(the “Exchange Act”) or similar provisions of any
federal, state or local statutory law;
(ii) on account of Agent’s conduct that was
knowingly fraudulent or deliberately dishonest or that constituted
willful misconduct;
(iii) on account of Agent’s conduct that
constituted a breach of Agent’s duty of loyalty to the
Corporation or resulted in any personal profit or advantage to
which Agent was not legally entitled;
(iv) for which payment actually has been 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;
(v) 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
(vi) 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.
(b) Within thirty (30) days of receipt of a
notice pursuant to Section 7, the Corporation (or the
Independent Legal Counsel, if applicable) shall make an initial
good faith determination of Agent’s entitlement to
indemnification pursuant to this Agreement and shall notify Agent
(and the Corporation, if Independent Legal Counsel is making such
determination) promptly of such determination. If at any time
thereafter the Corporation (or the Independent Legal Counsel, as
applicable) in good faith determines that any indemnification
requested pursuant to this Agreement is prohibited pursuant to
Section 4(a), the Corporation shall promptly provide notice of
such determination to Agent (and the Corporation, if applicable).
Any determination by the Corporation pursuant to this Section 4(b)
shall be made by the Corporation’s Board of
Directors.
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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 serving at the written
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 shall
continue thereafter so long as Agent shall be subject to any
possible Claim.
6. Partial Indemnification. Agent shall be entitled
under this Agreement to indemnification by the Corporation for a
portion of the Expenses that Agent pays or incurs in connection
with Claim even if Agent is not entitled hereunder to
indemnification for the total amount thereof, and the Corporation
shall indemnify Agent for the portion thereof to which Agent is
entitled.
7. Notification and Defense of Claim. Not later than
thirty (30) days after receipt by Agent of notice of any
Claim, Agent will, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the
Corporation of the commencement of such Claim; provided, however,
that no failure to provide such notice shall be deemed to reduce or
limit the obligations of the Corporation under this Agreement
unless (and only to the extent that) such failure materially
prejudices the Corporation. The omission so to notify the
Corporation will not relieve it from any liability which it may
have to Agent otherwise than under this Agreement. With respect to
any Claim as to which Agent notifies the Corporation of the
commencement thereof:
(a) The Corporation will be entitled to participate
therein at its own expense;
(b) Except as otherwise provided below, the
Corporation may, at its option and jointly with any other
indemnifying party similarly notified and electing to assume such
defense, assume the defense thereof, with counsel reasonably
satisfactory to Agent. After notice from the Corporation to Agent
of its election to assume the defense thereof, the Corporation will
not be liable to Agent under this Agreement for any legal fees and
expenses subsequently incurred by Agent in connection with the
defense thereof except for reasonable costs of investigation or
otherwise as provided below. Agent shall have the right to employ
separate counsel in such action, suit or proceeding but the fees
and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at
the expense of Agent unless (i) the employment of counsel by
Agent has been authorized by the Corporation, (ii) Agent shall
have reasonably conclude
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