Exhibit
No. 10.31


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION
AGREEMENT is made effective as of the 24th day of January, 2003 (the
“Agreement”), by and between NANOGEN, INC., a Delaware corporation (the
“Company”) and GRAHAM LIDGARD (the “Indemnitee”) with reference to the
following facts:


 


WHEREAS, the Company
desires the benefits of having Indemnitee serve as an officer and/or director
secure in the knowledge that any expenses, liability and/or losses incurred by
him in his good faith service to the Company will be borne by the Company or
its successors and assigns; and


 


WHEREAS, Indemnitee is
willing to serve in his position with the Company only on the condition that he
be indemnified for such expenses, liability and/or losses; and


 


WHEREAS, the Company and
Indemnitee recognize the increasing difficulty in obtaining liability insurance
for directors, officers and agents of a corporation at reasonable cost; and


 


WHEREAS, the Company and
Indemnitee recognize that there has been an increase in litigation against
corporate directors, officers and agents; and


 


WHEREAS, the Company’s
Restated Certificate of Incorporation allows and requires the Company to
indemnify its directors, officers and agents to the maximum extent permitted
under Delaware law:


 


NOW, THEREFORE, the
parties hereby agree as follows:


 


1.             Definitions.  
For purposes of this Agreement:


 


1.1           “Agent” shall mean any person who
(a) is or was a director, officer, employee or agent of the Company or a
subsidiary of the Company whether serving in such capacity or as a director,
officer, employee, agent, fiduciary or other official of another corporation,
joint venture, trust or other enterprise at the request of, for the convenience
of, or to represent the interests of the Company or a subsidiary of the Company
or (b) was a director, officer, employee or agent of Nanogen, Inc., a
California corporation and the predecessor by merger to the Company (the
“Predecessor Corporation”), whether serving in such capacity or as a director,
officer, employee, agent, fiduciary or other official of another corporation,
joint venture, trust or other enterprise at the request of, for the convenience
of, or to represent the interests of such Predecessor Corporation.


 


1.2           “Change of Control” shall mean the
occurrence of any of the following events after the date of this Agreement:


 

















 


(a)           A change in the composition of the
board of directors of the Company (the “Board”), as a result of which fewer
than two-thirds of the incumbent directors are directors who either (a) had
been directors of the Company 24 months prior to such change or (b) were
elected, or nominated for election, to the Board with the affirmative votes of
at least a majority of the directors who had been directors of the Company 24
months prior to such change and who were still in office at the time of the
election or nomination; or


 


(b)           Any “person” (as such term is used in
sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”), as amended) through the acquisition or aggregation of securities is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20 percent or more of the combined voting power of the
Company’s then outstanding securities ordinarily (and apart from rights accruing
under special circumstances) having the right to vote at elections of directors
(the “Capital Stock”); provided, however, that any change in ownership
of the Company’s securities by any person resulting solely from a reduction in
the aggregate number of outstanding shares of Capital Stock, and any decrease
thereafter in such person’s ownership of securities, shall be disregarded until
such person increases in any manner, directly or indirectly, such person’s
beneficial ownership of any securities of the Company.


 


1.3           “Disinterested Director” shall mean a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is being sought by Indemnitee.


 


1.4           “Expenses” shall be broadly construed
and shall include, without limi­ta­tion, (a) all direct and indirect costs
incurred, paid or accrued, (b) all attorneys’ fees, retainers, court
costs, transcripts, fees of experts, witness fees, travel expenses, food and
lodging expenses while traveling, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service, freight or other
transportation fees and expenses, (c) all other disbursements and out-of-pocket
expenses, (d) amounts paid in settlement, to the extent not prohibited by
Delaware Law, and (e) reasonable compensation for time spent by Indemnitee
for which he is otherwise not compensated by the Company or any third party,
actually and reasonably incurred in connection with or arising out of a
Proceeding, including a Proceeding by Indemnitee to establish or enforce a
right to indemnification under this Agreement, applicable law or otherwise.


 


1.5           “Independent Counsel” shall mean a
law firm or a member of a law firm that neither is presently nor in the past
five years has been retained to represent: 
(a) the Company, an affiliate of the Company or Indemnitee in any
matter material to either party or (b) 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 Company or Indemnitee in an action to determine
Indemnitee’s right to indemnification under this Agreement.


 


1.6           “Liabilities” shall mean liabilities
of any type whatsoever, including, but not limited to, judgments or fines,
ERISA or other excise taxes and penalties, and amounts paid in settlement
(including all interest, assessments or other charges paid or payable in
connection with


 


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any of the foregoing) actually and reasonably incurred by Indemnitee in
connection with a Proceeding.


 


1.7           “Delaware Law” means the Delaware
General Corporation Law, as amended and in effect from time to time, or any
successor or other statutes of Delaware having similar import and effect.


 


1.8           “Proceeding” shall mean any pending,
threatened or completed action, hearing, suit or any other proceeding, whether
civil, criminal, arbitrative, admini­strative, investigative or any alternative
dispute resolution mechanism, including without limitation any such Proceeding
brought by or in the right of the Company.


 


2.             Employment Rights and Duties.   Subject to any other obligations imposed on
either of the parties by contract or by law, and with the understanding that
this Agreement is not intended to confer employment rights on either party
which they did not possess on the date of its execution, Indemnitee agrees to
serve as a director or officer so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the Restated
Certificate of Incorporation (the “Certificate”) and Bylaws (the “Bylaws”) of
the Company or any subsidiary of the Company and until such time as he resigns
or fails to stand for election or until his employment terminates.  Indemnitee may from time to time also
perform other services at the request, or for the convenience of, or otherwise
benefiting the Company.  Indemnitee may
at any time and for any reason resign or be removed from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Company shall have no obligation under this Agreement
to continue Indemnitee in any such position.


 


2.1           Directors’ and Officers’ Insurance.


 


(a)           The Company hereby covenants and
agrees that, so long as Indemnitee shall continue to serve as a director or
officer of the Company and thereafter so long as Indemnitee shall be subject to
any possible Proceeding, the Company, subject to Section 2.1(c), shall maintain
directors’ and officers’ insurance in full force and effect.


 


(b)           In all policies of directors’ and
officers’ insurance, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company’s directors or officers most
favorably insured by such policy.


 


(c)           The Company shall have no obligation
to maintain directors’ and officers’ insurance if the Company determines in
good faith that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount of coverage provided, or
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit.


 


3.             Indemnification. 
The Company shall indemnify Indemnitee to the fullest extent authorized
or permitted by Delaware Law and the provisions of the Certificate and Bylaws
of the Company in effect on the date hereof, and as Delaware Law, the
Certificate and Bylaws may


 


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from time to time be amended (but, in the case of any such amendment,
only to the extent such amendment permits the Company to provide broader
indemnification rights than Delaware Law, the Certificate and/or Bylaws
permitted the Company to provide before such amend­ment).  The right to indemnification conferred in
the Certificate shall be presumed to have been relied upon by Indemnitee in
serving or continuing to serve the Company as a director or officer and shall
be enforceable as a contract right. 
Without in any way diminishing the scope of the indemnification provided
by the Certificate and this Section 3, the Company shall indemnify
Indemnitee if and whenever he is or was a witness, party or is threatened to be
made a witness or a party to any Proceeding, by reason of the fact that he is
or was an Agent or by reason of anything done or not done, or alleged to have
been done or not done, by him in such capacity, against all Expenses and
Liabilities actually and reasonably incurred by Indemnitee or on his behalf in
connection with the investigation, defense, settlement or appeal of such
Proceeding.  In addition to, and not as
a limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in
Sections 4, 5 and 6 below.


 


4.             Payment of Expenses.


 


4.1           All Expenses incurred by or on behalf
of Indemnitee shall be advanced by the Company to Indemnitee within 20 days
after the receipt by the Company of a written request for such advance which
may be made from time to time, whether prior to or after final disposition of a
Proceeding (unless there has been a final determination by a court of competent
jurisdiction that Indemnitee is not entitled to be indemnified for such
Expenses).  Indemnitee’s entitlement to
advancement of Expenses shall include those incurred in connection with any
Proceeding by Indemnitee seeking a determination, an adjudication or an award
in arbitration pursuant to this Agreement. The requests shall reasonably
evidence the Expenses incurred by Indemnitee in connection therewith.  Indemnitee hereby undertakes to repay the
amounts advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified pursuant to the terms of this Agreement.


 


4.2           Notwithstanding any other provision
in this Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee
in connection therewith.


 


5.             Procedure for Determination of Entitlement to
Indemnification.


 


5.1           Whenever Indemnitee believes that he
is entitled to indemnification pursuant to this Agreement, Indemnitee shall
submit a written request for indemni­fi­cation (the “Indemnification Request”)
to the Company to the attention of the President with a copy to the
Secretary.  This request shall include
documentation or information which is necessary for the determination of
entitlement to indemni­fi­cation and which is reasonably available to
Indemnitee. Determination of Indemnitee’s entitlement to indemnification shall
be made no later than 60 days after receipt of the Indemnification
Request.  The President or the Secretary
shall, promptly upon receipt of Indemnitee’s request for indemnification,
advise the Board in writing that Indemnitee has made such request for
indemnification.


 


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5.2           The Indemnification Request shall set
forth Indemnitee’s selection of which of the following forums shall determine
whether Indemnitee is entitled to indemnification:


 


(1)           A majority vote of Directors who are
not parties to the action with respect to which indemnification is sought, even
though less than a quorum.


 


(2)           A written opinion of an Independent
Counsel (provided there are no such Directors as set forth in (1) above or if
such Directors as set forth in (1) above so direct).


 


(3)           A majority vote of the stockholders
at a meeting at which a quorum is present, with the shares owned by the person
to be indemnified not being entitled to vote thereon.


 


(4)           The court in which the Proceeding is
or was pending upon application by Indemnitee.


 


The Company agrees to
bear any and all costs and expenses incurred by Indemnitee or the Company in
connection with the determination of Indemnitee’s entitlement to
indemnification by any of the above forums.


 


6.             Presumptions and Effect of Certain Proceedings.  No initial finding by the Board, its
counsel, Independent Counsel, arbitrators or the stockholders shall be
effective to deprive Indemnitee of the protection of this indemnity, nor shall a
court or other forum to which Indemnitee may apply for enforcement of this
indemnity give any weight to any such adverse finding in deciding any issue
before it.  Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proof to overcome
that presumption in reaching any contrary determination.  The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a plea of
nolo
contendere or its equivalent, shall not, of itself,
(a) adversely affect the rights of Indemnitee to indemnification except as
indemnifi­cation may be expressly prohibited under this Agreement,
(b) create a presumption that Indemnitee did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Company or (c) with respect to any criminal action or
proceeding, create a presumption that Indemnitee had reasonable cause to believe
that his conduct was unlawful.


 


7.             Remedies of Indemnitee in Cases of Determination Not
to Indemnify or to Advance Expenses.


 


7.1           In the event that (a) an initial
determination is made that Indemnitee is not entitled to indemnification,
(b) advances for Expenses are not made when and as required by this
Agreement, (c) payment has not been timely made following a determination
of entitlement to indemnification pursuant to this Agreement or
(d) Indemnitee otherwise seeks enforcement of this Agreement, Indemnitee
shall be entitled to a final adjudication in an appropriate court of the State
of Delaware of his entitlement to such indemnification or advance.  Alternatively, Indemnitee at his option may
seek an award in arbitration.  If the
parties are unable to agree on an arbitrator, the parties shall provide JAMS
Endispute (“JAMS”) with a statement of the nature of the dispute and the
desired qualifications of the arbitrator. 
JAMS will then provide a list of three


 


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available arbitrators.  Each
party may strike one of the names on the list, and the remaining person will
serve as the arbitrator.  If both
parties strike the same person, JAMS will select the arbitrator from the other
two names.  The arbitration award shall
be made within 90 days following the demand for arbitration.  Except as set forth herein, the provisions
of Delaware law shall apply to any such arbitration.  The Company shall not oppose Indemnitee’s right to seek any such
adjudication or arbitration award. In any such proceeding or arbitration
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proof to overcome that
presumption.


 


7.2           An initial determination, in whole or
in part, that Indemnitee is not entitled to indemnification shall create no
presumption in any judicial proceeding or arbitration that Indemnitee has not
met the applicable standard of conduct for, or is otherwise not entitled to,
indemnification.


 


7.3           If an initial determination is made
or deemed to have been made pursuant to the terms of this Agreement that
Indemnitee is entitled to indemnifi­cation, the Company shall be bound by such
determination in the absence of (a) a misrepre­sentation of a material fact
by Indemnitee in the request for indemnification or (b) a specific finding
(which has become final) by a court of competent jurisdiction that all or any
part of such indemnification is expressly prohibited by law.


 


7.4           The Company and Indemnitee agree herein
that a monetary remedy for breach of this Agreement, at some later date, will
be inadequate, impracticable and difficult of proof, and further agree that
such breach would cause Indemnitee irreparable harm.  Accordingly, the Company and Indemnitee agree that Indemnitee
shall be entitled to temporary and permanent injunctive relief to enforce this
Agree­ment without the necessity of proving actual damages or irreparable
harm.  The Company and Indemnitee
further agree that Indemnitee shall be entitled to such injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bond or other undertaking in
connection therewith.  Any such requirement
of bond or undertaking is hereby waived by the Company, and the Company
acknowledges that in the absence of such a waiver, a bond or undertaking may be
required by the court.


 


7.5           The Company shall be precluded from
asserting that the procedures and presumptions of this Agreement are not valid,
binding and enforceable.  The Company
shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.


 


7.6           Expenses incurred by Indemnitee in
connection with his request for indemnification under, seeking enforcement of
or to recover damages for breach of this Agreement shall be borne and advanced
by the Company.


 


8.             Other Rights to Indemnification.  Indemnitee’s rights of indemnifi­cation and
advancement of expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under applicable law, the


 


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Certificate, the Bylaws, an employment agree­ment, a vote of
stockholders or Disinterested Directors, insurance or other financial
arrangements or otherwise.


 


9.             Limitations on Indemnification.  No indemnification pursuant to
Section 3 shall be paid by the Company nor shall Expenses be advanced
pursuant to Section 3:


 


9.1           Insurance.  To the extent that Indemnitee is reimbursed
pursuant to such insurance as may exist for Indemnitee’s benefit.  Notwithstanding the avail­ability of such
insurance, Indemnitee also may claim indemnification from the Company pursuant
to this Agreement by assigning to the Company any claims under such insurance
to the extent Indemnitee is paid by the Company.  Indemnitee shall reimburse the Company for any sums he receives
as indemnification from other sources to the extent of any amount paid to him
for that purpose by the Company;


 


9.2           Section 16(b).  On account and to the extent of any wholly
or partially successful claim against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) or the Securities Exchange Act of
1934, as amended, and amendments thereto or similar provisions of any federal,
state or local statutory law; or


 


9.3           Indemnitee’s Proceedings.  Except as otherwise provided in this
Agreement, in connection with all or any part of a Proceeding which is
initiated or maintained by or on behalf of Indemnitee, or any Proceeding by
Indemnitee against the Company or its directors, officers, employees or other
agents, unless (a) such indemnification is expressly required to be made
by Delaware Law, (b) the Proceeding was authorized by a majority of the
Disinterested Directors, (c) there has been a Change of Control or
(d) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under Delaware Law.


 


10.           Duration and Scope of Agreement;
Binding Effect.  This Agreement
shall continue so long as Indemnitee shall be subject to any possible
Proceeding subject to indemnification by reason of the fact that he is or was
an Agent and shall be applicable to Proceedings commenced or continued after
execution of this Agreement, whether arising from acts or omissions occurring
before or after such execution.  This
Agreement shall be binding upon the Company and its successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company) and shall inure to the benefit of Indemnitee and his spouse, assigns,
heirs, devisees, executors, administrators and other legal representatives.


 


11.           Notice by Indemnitee and Defense
of Claims.  Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,  whether civil,  criminal, 
arbitrative,  administrative or investigative;


 


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but the omission so to
notify the Company will not relieve it from any liability which it may have to
Indemnitee if such omission does not actually prejudice the Company’s rights
and, if such omission does prejudice the Company’s rights, it will relieve the
Company from liability only to the extent of such prejudice; nor will such
omission relieve the Company from any liability which it may have to Indemnitee
otherwise than under this Agreement. 
With respect to any Proceeding:


 


(a)           The Company will be entitled to
participate therein at its own expense;


 


(b)           Except as otherwise provided below,
to the extent that it may wish, the Company jointly with any other indemnifying
party similarly notified will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election so to assume the defense thereof and the assumption
of such defense, the Company will not be liable to Indemnitee under this
Agreement for any attorney fees or costs subsequently incurred by Indemnitee in
connection with Indemnitee’s defense except as otherwise provided below.  Indemnitee shall have the right to employ
his counsel in such Proceeding but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
and the assumption of such defense shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Company and Indemnitee in the conduct of the
defense of such action or that the Company’s counsel may not be adequately representing
Indemnitee or (iii) the Company shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel shall be at the expense of the Company; and


 


(c)           The Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent.  The Company shall not settle any action or
claim which would impose any limitation or penalty on Indemnitee without
Indemnitee’s written consent.  Neither
the Company nor Indemnitee will unreasonably withhold its or his consent to any
proposed settlement.


 


11.1         Contribution.  In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to
Indemnitee in whole or part, the Company shall, in such an event, after taking
into account, among other things, contributions by other directors and officers
of the Company pursuant to indemnification agreements or otherwise, and, in the
absence of personal enrichment, acts of intentional fraud or dishonesty or
criminal conduct on the part of Indemnitee, contribute to the payment of
Indemnitee’s losses to the extent that, after other contributions are taken
into account, such losses exceed: 
(i) in the case of a director of the Company or any of its
subsidiaries who is not an officer of the Company or any of such subsidiaries,
the amount of fees paid to the director for serving as a director during the 12
months preceding the commencement of the Proceeding; or (ii) in the case
of a director of the Company or any of its subsidiaries who is also an officer
of the Company or any of such subsidiaries, the amount set forth in clause (i)
plus 5% of the aggregate cash compensation paid to said director for service in
such office(s) during the 12 months preceding the commencement of the
Proceeding; or (iii) in the case of an officer of the Corporation or any
of its subsidiaries, 5% of


 


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the aggregate cash compensation paid to such officer for service in
such office(s) during the 12 months preceding the commencement of such
Proceeding.


 


12.           Establishment of Trust.  In order to secure the obligations of the
Company to indemnify and to advance Expenses to Indemnitee pursuant to this
Agreement, upon a Change of Control of the Company, the Company or its
successor or assign shall establish a Trust (the “Trust”) for the benefit of
the Indemnitee, the trustee (the “Trustee”) of which shall be chosen by the
Company and which is reasonably acceptable to the Indemnitee.  Thereafter, from time to time, upon receipt
of a written request from Indemnitee, the Company shall fund the Trust in
amounts sufficient to satisfy any and all Liabilities and Expenses reasonably
anticipated at the time of such request for which the Company may indemnify
Indemnitee hereunder.  The amount or
amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of the Indemnitee and the
Company or, if the Company and the Indemnitee are unable to reach such an
agreement, by Independent Counsel selected jointly by the Company and the
Indemnitee.  The terms of the Trust
shall provide that except upon the consent of the Indemnitee and the Company,
(i) the Trust shall not be revoked or the principal thereof invaded,
without the written consent of the Indemnitee, (ii) the Trustee shall
advance to the Indemnitee, within 20 days of a request by the Indemnitee, any
and all Expenses, the Indemnitee hereby agreeing to reimburse the Trustee of
the Trust for all Expenses so advanced if a final determi­nation is made by a
court in a final adjudication from which there is no further right of appeal
that the Indemnitee is not entitled to be indemnified under this Agreement,
(iii) the Trust shall continue to be funded by the Company in accordance
with the funding obligations set forth in this Section, (iv) the Trustee
shall promptly pay to the Indemnitee any amounts to which the Indemnitee shall
be entitled pursuant to this Agreement, and (v) all unexpended funds in
the Trust shall revert to the Company upon a final determination by Independent
Counsel selected by Indemnitee or a court of competent jurisdiction that
Indemnitee has been fully indemnified with respect to the Proceeding giving
rise to the funding of the Trust under the terms of this Agreement.  The establishment of the Trust shall not, in
any way, diminish the Company’s obligation to indemnify Indemnitee against
Expenses and Liabilities to the full extent required by this Agreement.


 


13.           Miscellaneous Provisions.


 


13.1         Severability; Partial Indemnity.  If any provision or provisions of this
Agreement (or any portion thereof) shall be held by a court of competent juris­diction
to be invalid, illegal or unenforceable for any reason whatever:  (a) such provision shall be limited or
modified in its application to the minimum extent necessary to avoid the invalidity,
illegality or unenforceability of such provision; (b) the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby; and (c) to the fullest
extent possible, the provisions of this Agreement shall be construed so as to
give effect to the intent manifested by the provision (or portion thereof) held
invalid, illegal or unenforceable.  If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses or Liabilities of any type
whatsoever incurred by him in the investigation, defense, settlement or appeal
of a Proceeding but not entitled to all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for such total amount


 


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except as to the portion thereof for which it has been determined
pursuant to Section 5 hereof that Indemnitee is not entitled.


 


13.2         Identical Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement.  Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.


 


13.3         Interpretation of Agreement.  It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide indemnifi­cation
to Indemnitee to the fullest extent not now or hereafter prohibited by law.


 


13.4         Headings.  The headings of the Sections and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


13.5         Pronouns.  Use of the masculine pronoun shall be deemed
to include use of the feminine pronoun where appropriate.


 


13.6         Modification and Waiver.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement.  No waiver of
any provision of this Agreement shall be deemed to constitute a waiver of any
of the provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.  No
waiver of any provision of this Agreement shall be effective unless executed in
writing.


 


13.7         Notices.  All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom
said notice or other communication shall have been directed or (ii) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


(a)           If to Indemnitee, to:


 


Graham Lidgard


Nanogen, Inc.


10398 Pacific Center
Court


San Diego,
California  92121


Telephone:  (858)
410-4600


Telefax:       (858)
410-4949


 


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(b)           If to the Company to:


 


Nanogen, Inc.


10398 Pacific Center Court


San Diego, California  92121


Telephone:  (858) 410-4600


Telefax:       (889) 410-4949


Attention:    Chief Executive Officer


 


or to such other address as may have been furnished to Indemnitee by
the Company or to the Company by Indemnitee, as the case may be.


 


13.8         Governing Law.  The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.


 


13.9         Consent to Jurisdiction.  The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out
of or relates to this agreement and agree that any action instituted under this
agreement shall be brought only in the state courts of the State of Delaware.


 


13.10       Entire Agreement.  This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understanding between the parties hereto with respect to the
subject matter of this Agreement, except as specifically referred to herein or
as provided in Sections 8 and 2.1 hereof.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day and year first above
written.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  NANOGEN, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ HOWARD C. BIRNDORF

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Howard C. Birndorf

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ GRAHAM LIDGARD

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Graham Lidgard

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Senior VP, Research and
  Development

  
								



 


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