exv10w59



 



EXHIBIT 10.59


INDEMNIFICATION AGREEMENT



     This Indemnification Agreement made and entered into this 26th day of May
2003 (“Agreement”), by and between Invitrogen Corporation, a Delaware
corporation (together with any successor or successors and predecessor or
predecessors thereto, the “Company”) and Gregory T. Lucier (“Indemnitee”).


     WHEREAS, it is essential to the Company that it be able to retain and
attract as directors, officers, employees and agents the most capable persons
available;


     WHEREAS, increased corporate litigation has subjected directors, officers,
employees and agents of corporations to litigation risks and expenses and the
limitations on the availability of directors and officers liability insurance
have made it increasingly difficult for the Company to attract and retain such
persons;


     WHEREAS, its by-laws permit the Company to enter into indemnification
arrangements and agreements;


     WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to or revocation of the Company’s by-laws or any change in the ownership of the
Company or the composition of its Board of Directors), which indemnification is
intended to be greater than that which is afforded by the Company’s certificate
of incorporation, by-laws and, to the extent insurance is available, the
coverage of Indemnitee under the Company’ directors and officers liability
insurance policies; and


     WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing in Indemnitee’s position as an agent of the Company.


     NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:


     1.     Definitions.



		
	 	(a)     “agent” of the Company means any person who is or was a
director, officer, employee or other agent of the Company or a
subsidiary of the Company; or is or was serving at the request of,
for the convenience of, or to
represent the interests of the Company or a subsidiary of the
Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust
or other enterprise; or was a director, officer, employee or agent
of a foreign or domestic corporation which was a predecessor
corporation of the Company or a subsidiary of the Company, or was
a director, officer, employee or agent of another enterprise at
the request of, for the convenience of, or to represent the
interests of such predecessor corporation.



 






 





		
	 	(b)     “Corporate Status” describes the status of a person who
is serving or has served (i) as an agent of the Company, (ii) in
any capacity with respect to any employee benefit plan of the
Company, or (iii) as a director, partner, trustee, officer,
employee, or agent of any other Entity as defined below at the
request of the Company.




		
	 	(c)     “Entity” shall mean any corporation, partnership, joint
venture, trust, foundation, association, organization or other
legal entity and any group or division of the Company or any of
its subsidiaries.




		
	 	(d)     “Expenses” shall mean all reasonable fee, costs and
expenses incurred in connection with any Proceeding (as defined
below), including, without limitation, attorney’s fees,
disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee
pursuant to Section 12 of this Agreement), fees and disbursements
of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and
investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery
services, secretarial services, and other disbursements and
expenses.




		
	 	(e)     “Indemnifiable Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings ascribed to those
terms in Section 3(a) below.




		
	 	(f)     “Liabilities” shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in
settlement.




		
	 	(g)     “Proceeding” shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative
or investigative, whether formal or informal, including a
proceeding initiated by Indemnitee pursuant to Section 12 of this
Agreement to enforce Indemnitee’s rights hereunder.



     2.     Services of Indemnitee. In consideration of the Company’s covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as
an agent of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee’s service to the
Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.


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     3.     Agreement to Indemnify. The Company agrees to indemnify Indemnitee as
follows:



		
	 	(a)     Subject to the exceptions contained in Section 4(a)
below, if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding (other than an action by or in the right
of the Company) by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all
Expenses and Liabilities incurred or paid by Indemnitee in
connection with such Proceeding (referred to herein as
“Indemnifiable Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable Amounts”).




		
	 	(b)     Subject to the exceptions contained in Section 4(b)
below, if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company
against all Indemnifiable Expenses.



     4.     Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Section 3(a) and 3(b) above in all circumstances other
than the following:



		
	 	(a)     If indemnification is requested under Section 3(a) and it
has been adjudicated finally by a court of competent jurisdiction
that, in connection with the subject of the Proceeding out of
which the claim for indemnification has arisen, Indemnitee failed
to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder.




		
	 	(b)     If indemnification is requested under Section 3(b) and




		
	 	(i)     It has been adjudicated finally by a court of
competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in
good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or




		
	 	(ii)     It has been adjudicated finally by a court of
competent jurisdiction that Indemnitee is liable to the
Company with respect to any claim, issue or matter
involved in the Proceeding out of which the claim for
indemnification has arisen, including, without limitation,
a claim that Indemnitee received an improper personal
benefit, no Indemnifiable Expenses shall be paid with
respect to such claim, issue 



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	 	or matter unless the Court of
Chancery or another 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, Indemnitee is fairly and
reasonably entitled to indemnity for such Indemnifiable
Expenses which such court shall deem proper.




		
	 	(c)     The Company shall not be obligated to indemnify the
Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines ERISA excise
taxes and penalties, and amounts paid in settlement) for which
payment is actually made to or on behalf of Indemnitee under a
valid and collectible insurance policy of D&O Insurance, or under
a valid and enforceable indemnity clause, by-law or agreement.



     5.     Notice Procedure. Promptly after receipt by the Indemnitee of notice
of the commencement of or the threat of commencement of any Proceeding, the
Indemnitee shall, if the Indemnitee believes that indemnification with respect
thereto may be sought from the Company under this Agreement, notify the Company
of the commencement or threat of commencement thereof.


     6.     Procedure for Company to Assume the Defense. In the event the Company
shall be obligated to pay the Expenses of any Proceeding against the
Indemnitee, the Company, if appropriate, shall be entitled to assume the
defense of such Proceeding, with counsel approved by the Indemnitee, upon the
delivery to the Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by the Indemnitee with respect to the same Proceeding, provided that (i) the
Indemnitee shall have the right to employ his counsel in any such Proceeding at
the Indemnitee’s expense; and (ii) if (A) the employment of counsel by the
Indemnitee has been previously authorized by the Company, (B) the Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Company and the Indemnitee in the conduct of any such defense, or
(C) the Company shall not, in fact, have employed counsel to assume the defense
of such Proceeding, then the fees and expenses of Indemnitee’s counsel shall be
at the expense of the Company.


     7.     Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts
for which Indemnitee seeks payment under Section 3 of this Agreement and the
basis for the claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee within twenty (20) calendar days of receipt of the request. At the
request of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary to establish that
Indemnitee is entitled to indemnification hereunder.


     8.     Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified 


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against all Expenses reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Agreement, 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.


     9.     Effect of Certain Resolutions. Neither the settlement or termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal action or proceeding, had reasonable
cause to believe that Indemnitee’s action was unlawful.


     10.     Agreement to Advance Interim Expenses; Conditions. The Company shall
pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of
the Company, in advance of the final disposition of such Proceeding, if
Indemnitee furnishes the Company with a written undertaking to repay the amount
of such Indemnifiable Expenses advanced to Indemnitee if it is finally
determined by a court of competent jurisdiction that Indemnitee is not entitled
under this Agreement to indemnification with respect to such Expenses. Such
undertaking shall be an unlimited general obligation of Indemnitee, shall be
accepted by the Company without regard to the financial ability of Indemnitee
to make repayment, and in no event shall be required to be secured.


     11.     Procedure for Payment of Interim Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 10 of this Agreement, together
with documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 10 shall be made no
later than twenty (20) calendar days after the Company’s receipt of such
request and the undertaking required by Section 10.


     12.    Remedies of Indemnitee.


		
	 	(a)     Right to Petition Court. In the event that Indemnitee
makes a request for payment of Indemnifiable Amounts under
Sections 3 and 7 above or a request for an advancement of
Indemnifiable Expenses under Sections 10 and 11 above and the
Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement, Indemnitee may
petition the appropriate judicial authority to enforce the
Company’s obligations under this Agreement.



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	 	(b)     Burden of Proof. In any judicial proceeding brought
under Section 12((a)) above, the Company shall have the burden of
proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.




		
	 	(c)     Expenses. The Company agrees to reimburse Indemnitee in
full for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling
any action brought by Indemnitee under Section 12((a)) above, or
in connection with any claim or counterclaim brought by the
Company in connection therewith.




		
	 	(d)     Validity of Agreement. The Company shall be precluded
from asserting in any Proceeding, including, without limitation,
an action under Section 12((a)) above, that the provisions of
this Agreement are not valid, binding and enforceable or that
there is insufficient consideration for this Agreement and shall
stipulate in court that the Company is bound by all the
provisions of this Agreement.




		
	 	(e)     Failure to Act Not a Defense. The failure of the
Company (including its Board of Directors or any committee
thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable
Expenses under this Agreement shall not be a defense in any
action brought under Section 12((a)) above, and shall not create
a presumption that such payment or advancement is not
permissible.



     13.     Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:



		
	 	(a)     Authority. The Company has all necessary power and
authority to enter into, and be bound by the terms of, this
Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly
authorized by the Company.




		
	 	(b)     Enforceability. This Agreement, when executed and
delivered by the Company in accordance with the provisions
hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the enforcement of
creditors’ rights generally.



     14.     Insurance. The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as an agent of the Company and thereafter so
long as the Indemnitee shall be subject to any possible proceeding by reason of
the fact that the Indemnitee was an agent of the Company, the Company will use
its commercially reasonable efforts to obtain and maintain a policy or policies
of insurance with reputable insurance companies providing the Indemnitee with
coverage for losses from wrongful acts, and to ensure the 

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Company’s performance
of its indemnification obligations under this Agreement. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee at least the same rights and
benefits as are accorded to the most favorably insured of the Company’s
directors if Indemnitee is a director; or of the Company’s officers, if the
Indemnitee is not a director of the Company but is an officer; or of the
Company’s key employees, if the Indemnitee is not a director or officer but is
a key employee. Notwithstanding the foregoing, if the Company, after employing
commercially reasonable efforts as provided in this section, determines in good
faith that such insurance is not reasonably available, if the premium costs for
such insurance are disproportionate to the amount of coverage provided, or if
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit the Company shall use its commercially
reasonable efforts to obtain and maintain a policy or policies of insurance
with coverage having features as similar as practicable to those described
above.


     15.     Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company’s by-laws or
certificate of incorporation, or any other agreement, vote of stockholders or
directors, or otherwise, both as to action in Indemnitee’s official capacity
and as to action in any other capacity as a result of Indemnitee’s serving as a
director, officer or agent of the Company.


     16.     Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.


     17.     Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.


     18.     Change in Law. To the extent that a change in applicable law (whether
by statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the by-laws of the Company and this Agreement,
Indemnitee shall be entitled to such broader indemnification and this Agreement
shall be deemed to be amended to such extent.


     19.     Interpretation of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent permitted by law,
including those circumstances in which indemnification would otherwise be
discretionary.


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     20.     Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be
limited or modified in its application to the minimum extent necessary to make
such provision or clause valid, legal and enforceable, and the remaining
provisions and clauses of this Agreement shall remain fully enforceable and
binding on the parties.


     21.     Indemnitee as Plaintiff. Except as provided in Section 12((c)) of
this Agreement and in this Section 21, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
which it controls, any director, officer or agent thereof, or any third party.
This Section shall not apply (i) to counterclaims or affirmative defenses
asserted by Indemnitee in an action brought against Indemnitee, (ii) if the
Company has consented to the initiation of such Proceeding, (iii) if such
indemnification is expressly regarded to be made by law or (iv) if such
indemnification is provided by the Company, in its sole discretion, pursuant to
the powers vested in the Company under the General Corporation Laws of
Delaware. In addition to the foregoing, the Company shall not be obligated
pursuant to the terms of this Agreement to indemnify the Indemnitee (i) for any
expenses incurred by the Indemnitee with respect to any proceeding instituted
by the Indemnitee to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions made by
the Indemnitee in such proceeding was not made by good faith or was frivolous;
or (ii) under this Agreement for any amounts paid in settlement of a proceeding
unless the Company consents to such settlement, which consent shall not be
unreasonably withheld.


     22.     Modifications and Waiver. Except as provided in Section 18 above with
respect to changes in applicable law which broaden the right of Indemnitee to
be indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver or any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions of this Agreement (whether
or not similar), nor shall such waiver constitute a continuing waiver.


     23.     General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when
transmitted by facsimile and receipt is acknowledged, or (c) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:



	 	 
	(i)	
If to Indemnitee, to:
	 	

Gregory T. Lucier

1022 Fieldstone Lane

Oconomowoc, Wisconsin 53066



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	(ii)	
If to the Company, to
	 	
General Counsel

Invitrogen Corporation

1600 Faraday Avenue

Carlsbad, CA 92008



or to such other address as may have been furnished in the same manner by any
party to the others.


     24.     Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.


     25.     Consent to Jurisdiction. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts of Delaware and the
United States District Court in Delaware. The Company hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Proceeding
arising out of or relating to this Agreement in the courts of Delaware or the
United States District Court in Delaware, and hereby irrevocably and
unconditionally waives and agrees not to plead or claim that any such
Proceeding brought in any such court has been brought in an inconvenient forum.


     26.     Agreement Governs. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company’s by-laws and certificate of
incorporation; however, in the event of a conflict between this Agreement and
such provisions, the provisions of this Agreement shall control.


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



	 	 	 	 	 
	 	 	INVITROGEN CORPORATION
	 	 	 	 	 
	 	 	
By:
	 	  /s/ John A. Cottingham


John A. Cottingham
	 	 	 	 	Vice President, General Counsel, and Secretary
	 	 	 	 	 
	 	 	GREGORY T. LUCIER
	 	 	 	 	 
	 	 	  /s/ Gregory T. Lucier






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