Unassociated Document


    EXHIBIT
      10.8

     

    FORM
      OF
      INDEMNIFICATION AGREEMENT

     

    THIS
      AGREEMENT is made as of December _____, 2006, by and between CombiMatrix
      Corporation, a Delaware corporation (the “Company”), and _________________., one
      of the Directors of the Company (the “Indemnitee”),
      with
      reference to the following facts:

     

     

    R
      E C I T
      A L S:

     

    The
      Indemnitee is currently serving as a Director of the Company and the Company
      wishes the Indemnitee to continue in such capacity. The Indemnitee is willing,
      under certain circumstances, to continue serving as a Director of the Company.
      

     

    Section
      145 of the General Corporation Law of the State of Delaware, under which Law
      the
      Company is organized, empowers corporations to indemnify a person serving as
      a
      director, officer, employee or agent of the corporation and a person who serves
      at the request of the corporation as a director, officer, employee or agent
      of
      another corporation, partnership, joint venture, trust, or other enterprise,
      and
      said Section 145 specifies that the indemnification set forth in said Section
      145 shall not be deemed exclusive of any other rights to which those seeking
      indemnification may be entitled under any By-Law, agreement, vote of
      stockholders or disinterested directors or otherwise. 

     

    In
      order
      to induce the Indemnitee to continue to serve as a Director of the Company
      and
      in consideration of his continued service, the Company has determined and agreed
      to enter into this agreement with the Indemnitee. 

     

    NOW,
      THEREFORE, in consideration of the Indemnitee’s continued service as a Director
      of the Company, the parties hereto agree as follows:

     

    INDEMNITY.
      The Company will indemnify the Indemnitee, his executors, administrators or
      assigns, for any Damages or Expenses (as defined below) which the Indemnitee
      is
      or becomes legally obligated to pay in connection with any Proceeding. As used
      in this Agreement the term “Proceeding” shall include any threatened, pending or
      completed claim, action, suit or proceeding, whether brought by or in the right
      of the Company or otherwise and whether of a civil, criminal, administrative
      or
      investigative nature, in which the Indemnitee may be or may have been involved
      as a party or otherwise, by reason of the fact that Indemnitee is or was a
      director or officer of the Company, by reason of any actual or alleged error
      or
      misstatement or misleading statement or omission made or suffered by the
      Indemnitee, by reason of any action taken by him or of any inaction on his
      part
      while acting as such director or officer, or by reason of the fact that the
      Indemnitee was serving at the request of the Company as a director, trustee,
      officer, employee or agent of another corporation, partnership, joint venture,
      trust or other enterprise; provided, that in each such case Indemnitee acted
      in
      good faith and in a manner which he reasonably believed to be in or not opposed
      to the best interests of the Company, and, in the case of a criminal proceeding,
      in addition had no reasonable cause to believe that his conduct was unlawful.
      The termination of any action, suit or proceeding by judgment, order, settlement
      or conviction, or upon a plea of nolo
      contendere
      or its
      equivalent, shall not, of itself, create a presumption that such 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, and, with respect to any
      criminal action or proceeding, had reasonable cause to believe that his conduct
      was unlawful. As used in this Agreement, the term “other enterprise” shall
      include (without limitation) employee benefit plans and administrative
      committees thereof, and the term “fines” shall include (without limitation) 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, employee or agent of the Corporation which imposes duties
      on,
      or involves services by, such director, officer, employee or agent with respect
      to an employee benefit plan, its participants or beneficiaries, and if such
      Indemnitee acted in good faith and in a manner he reasonably believed to be
      in
      the interest of the participants and beneficiaries of an employee benefit plan
      he shall be deemed to have acted in a manner “not opposed to the best interests
      of the Company” as referred to above.

     

    
      
        
        

      

      
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    EXPENSES.
      As used in this Agreement, the term “Expenses” shall include, without
      limitation, damages, judgments, fines, penalties, settlements and costs,
      attorneys’ fees and disbursements and costs of attachment or similar bonds,
      investigations, and any expenses of establishing a right to indemnification
      under this Agreement and the term “Damages” shall include damages, judgments,
      fines, penalties and settlements. 

     

    ENFORCEMENT.
      If a claim or request under this Agreement is not paid by the Company, or on
      its
      behalf, within thirty days after a written claim or request has been received
      by
      the Company, the Indemnitee may at any time thereafter bring suit against the
      Company to recover the unpaid amount of the claim or request and if successful
      in whole or in part, the Indemnitee shall be entitled to be paid also the
      Expenses of prosecuting such suit. The Company shall have the right to recoup
      from the Indemnitee the amount of any item or items of Expenses (other than
      Damages) theretofore paid by the Company pursuant to this Agreement, to the
      extent such Expenses are not reasonable in nature or amount; provided, however,
      that the Company shall have the burden of proving such Expenses to be
      unreasonable. The burden of proving that the Indemnitee is not entitled to
      indemnification for any other reason shall be upon the Company.

     

    SUBROGATION.
      In the event that the Company pays any Expenses under this Agreement, the
      Company shall be subrogated to the extent of such payment to all of the rights
      of recovery of the Indemnitee, who shall execute all papers required and shall
      do everything that may be necessary to secure such rights, including the
      execution of such documents necessary to enable the Company effectively to
      bring
      suit to enforce such rights. 

     

    EXCLUSIONS.
      Notwithstanding the foregoing, the Company shall not be liable under this
      Agreement to pay any Expenses in connection with any Proceeding: 

     

    to
      the
      extent that payment of such Expenses is actually made to the Indemnitee under
      a
      valid, enforceable and collectible insurance policy;

     

    to
      the
      extent that the Indemnitee is indemnified and actually paid otherwise than
      pursuant to this Agreement;

     

    in
      connection with a judicial action by or in the right of the Company, in respect
      of any claim, issue or matter as to which the Indemnitee shall have been
      adjudged to be liable 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 Proceeding
      was brought shall determine upon application that, despite the adjudication
      of
      liability but in view of all the circumstances of the case, the Indemnitee
      is
      fairly and reasonably entitled to indemnity for such Expenses as such court
      shall deem proper;

     

    
      
        
        

      

      
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    if
      it is
      proved by final judgment in a court of law or other final adjudication that
      the
      Indemnitee had in fact gained any personal profit or advantage to which he
      was
      not legally entitled;

     

    for
      a
      disgorgement of profits made from the purchase and sale by the Indemnitee of
      securities pursuant to Section 16(b) of the Securities Exchange Act of 1934
      and
      amendments thereto or similar provisions of any state statutory law or common
      law;

     

    brought
      about or contributed to by the dishonesty of the Indemnitee seeking payment
      hereunder; however, notwithstanding the foregoing, the Indemnitee shall be
      protected under this Agreement as to any Proceeding brought against him by
      reason of any alleged dishonesty on such Indemnitee’s part, unless a judgment or
      other final adjudication thereof adverse to such Indemnitee shall establish
      that
      he committed (i) acts of active and deliberate dishonesty, (ii) with actual
      dishonest purpose and intent and (iii) such acts were material to the cause
      of
      action so adjudicated; or

     

    for
      any
      Damages which the Company is prohibited by applicable law from paying as
      indemnity. 

     

    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, including dismissal without prejudice, Indemnitee shall be
      indemnified against any and all Expenses actually and reasonably incurred in
      connection therewith.

     

    PARTIAL
      INDEMNIFICATION. If the Indemnitee is entitled under any provision of this
      Agreement to indemnification by the Company for some or a portion of Expenses,
      but not, however, for the total amount thereof, the Company shall nevertheless
      indemnify the Indemnitee for the portion of such Expenses to which the
      Indemnitee is entitled.

     

    ADVANCE
      OF EXPENSES. Expenses incurred by the Indemnitee in connection with any
      Proceeding, except the amount of any Damages, shall be paid by the Company
      in
      advance of the final disposition thereof upon request of the Indemnitee that
      the
      Company pay such Expenses. The Indemnitee hereby undertakes to repay to the
      Company the amount of any Expenses theretofore paid by the Company to the extent
      that it is ultimately determined that such Expenses were not reasonable or
      that
      the Indemnitee is not entitled to indemnification therefor.

     

    APPROVAL
      OF PAYMENT OF DAMAGES. No payment of Damages for which indemnity shall be sought
      under this Agreement, other than those in respect of judgments and verdicts
      actually rendered, shall be incurred without the prior consent of the Company,
      which consent shall not be unreasonably withheld. 

     

    
      
        
        

      

      
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    NOTICE
      OF
      CLAIM. The Indemnitee, as a condition precedent to his right to be indemnified
      under this Agreement, shall give to the Company notice in writing as soon as
      reasonably practicable of any Proceeding against any of him for which indemnity
      will or could be sought under this Agreement. Notice to the Company shall be
      given at its principal office and shall be directed to the Corporate Secretary
      (or such other address as the Company shall designate in writing to the
      Indemnitee); notice shall be deemed given on the earlier of the date of receipt
      or the seventh day after it is sent by properly addressed, prepaid registered
      or
      certified mail, return receipt requested. In addition, the Indemnitee shall
      give
      the Company such information and cooperation as it may reasonably require and
      as
      shall be within the Indemnitee’s power. 

     

    COUNTERPARTS.
      This Agreement may be executed in any number of counterparts, all of which
      taken
      together shall constitute one instrument.

     

    INDEMNIFICATION
      HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed to diminish or otherwise
      restrict the Indemnitee’s right to indemnification under any provision of the
      Certificate of Incorporation or By-Laws of the Company and amendments thereto
      or
      under law. 

     

    GOVERNING
      LAW. This Agreement shall be governed by and construed in accordance with
      Delaware law. 

     

    SAVING
      CLAUSE. Wherever there is conflict between any provision of this Agreement
      and
      any applicable present or future statute, law or regulation contrary to which
      the Company and the Indemnitee have no legal right to contract, the latter
      shall
      prevail, but in such event the affected provisions of this Agreement shall
      be
      curtailed and restricted only to the extent necessary to bring them within
      applicable legal requirements. 

     

    COVERAGE.
      The provisions of this Agreement shall apply with respect to the Indemnitee’s
      service as a Director of the Company prior to the date of this Agreement and
      with respect to all periods of such service after the date of this Agreement,
      even though such Indemnitee may have ceased to be a Director of the Company
      and
      shall inure to the benefit of the heirs, executors and administrators of the
      Indemnitee. 

     

    SURVIVAL
      OF AGREEMENT. For purposes of this Agreement, any reference to the Company”
shall include, in addition to the resulting or surviving corporation, any
      constituent corporation (including any constituent of a constituent) absorbed
      in
      a consolidation or merger which, if its separate existence had continued, would
      have had power and authority to indemnify its directors, officers, employees
      or
      agents, so that any person who is or was a director, officer, employee or agent
      of such constituent corporation, or is or was serving at the request of such
      constituent corporation as a director, officer, employee or agent of another
      corporation, partnership, joint venture, trust or other enterprise, shall stand
      in the same position under the provisions of this Agreement with respect to
      the
      resulting or surviving corporation as he would have with respect to such
      constituent corporation if its separate existence had continued. 

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed and signed as of the day and year first above written. 

     

    
      	 	
              COMBIMATRIX CORPORATION, 

              a Delaware corporation

            
	 	 
	 	By:   ____________________________________________ 
	 	         [Name] 
	 	Its:   [Title] 
	 	 
	 	INDEMNITEE: 
	 	___________________________________________ 
	 	[Name] 


    

     

     

     

     

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