EXHIBIT 10.12
INDEMNITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 17th day of February,
1998, between UroCor, Inc., a Delaware corporation (the "Corporation"), and
__________________________ ("Indemnified Party").
WITNESSETH:
WHEREAS, Indemnified Party is, or is about to become, an officer or a
member of the Board of Directors of the Corporation and in such capacity is
performing a valuable service for Corporation;
WHEREAS, Indemnified Party may from time to time serve as a director,
officer, employee, agent or fiduciary of other corporations, partnerships, joint
ventures, trusts or other enterprises, entities or plans at the request of the
Corporation in order to pursue the Corporation's interests;
WHEREAS, the Bylaws (the "Bylaws") of Corporation provide for the mandatory
indemnification of the officers, directors, agents and employees of the
Corporation to the maximum extent authorized by Section 145 of the Delaware
General Corporation Statute, as amended hereafter (the "State Statute");
WHEREAS, such Bylaws and the State Statute specifically provide that they
are not exclusive and thereby contemplate that contracts or other arrangements
not inconsistent with the State Statute may be entered into between the
Corporation and the members of its Board of Directors and its officers with
respect to indemnification of such directors and officers;
WHEREAS, in accordance with the authorization provided by the State
Statute, Corporation has purchased and will maintain a policy of Directors' and
Officers' Liability Insurance ("D&O Insurance"), covering certain liabilities
that may be incurred by its directors and officers in the performance of their
services for Corporation, possibly including certain liabilities for which
indemnification by the Corporation is not authorized or permitted under the
State Statute;
WHEREAS, uncertainties with respect to the terms and availability of D&O
Insurance and with respect to the application, amendment and enforcement of
statutory and by-law indemnification provisions make it desirable to supplement
and enhance the adequacy and reliability of the protection afforded to directors
and officers thereby; and
WHEREAS, to supplement and enhance the protection afforded Indemnified
Party and to induce Indemnified Party to continue to serve as a member of the
Board of Directors or as an officer of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with Indemnified Party, which
has been approved and adopted by the Corporation's Board of Directors;
NOW, THEREFORE, in consideration of Indemnified Party's continued service
as a director or an officer of the Corporation after the date hereof the parties
hereto agree as follows:
A. DEFINITIONS. For purposes of this Agreement:
"Litigation Costs" means costs, charges, expenses and obligations,
including, without limitation, all bonds, expenses of investigation, fees and
expenses of experts, accountants or other professionals, travel and lodging
expenses, court costs, transcript costs, duplicating costs, printing and binding
costs, telephone charges, postage, delivery fees and attorneys' fees, retainers
and expenses, reasonably incurred or contracted for in the investigation,
defense or prosecution of or other involvement in any Proceeding and any appeal
therefrom, and all costs of appeal, attachment, supersedes and other bonds that
may be relevant to any Proceeding.
"Losses" means the total of all amounts which Indemnified Party becomes, or
may become, legally obligated
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to pay in connection with any Proceeding, including (without limitation)
judgments, penalties, fines, court or investigative costs, amounts paid in
settlement, amounts lost or ordered forfeited pursuant to injunctive
sanctions, and all Litigation Costs.
"Proceeding" means any threatened, pending or completed action, suit,
arbitration, mediation, alternative dispute resolutions mechanism, proceeding,
subpoena compliance, inquiry or investigation, whether civil, criminal,
administrative or investigative (whether external and involving outside parties
or internal to the Corporation, including, but not limited to, an action by or
in the right of the Corporation and any internal investigation conducted by the
Board of Directors or any committee or other designee thereof or any other
person), and whether formal or informal.
2. INDEMNITY OF INDEMNIFIED PARTY. The Corporation hereby agrees to
indemnify Indemnified Party to the fullest extent authorized or permitted by the
provisions of the State Statute, including, but not limited to, (a) the maximum
extent permitted by the provisions of the State Statute which provide that the
State Statute is not the exclusive basis for indemnification of directors and
officers and (b) the maximum extent authorized or permitted by any amendment
thereof or other statutory provision authorizing or permitting such
indemnification which is adopted after the date hereof.
3. ADDITIONAL INDEMNITY. In addition to and not in substitution for or
diminution of the obligations of indemnification set forth in Section 2 hereof,
the Corporation hereby further agrees to indemnify Indemnified Party to the
fullest extent permitted by law against any and all Litigation Costs and Losses
of Indemnified Party in connection with any Proceeding to which Indemnified
Party is, was or at any time becomes a party, or is threatened to be made a
party or otherwise becomes involved (other than as plaintiff except where being
a plaintiff or intervenor is necessary to avoid RES JUDICATA or collateral
estoppel or other estoppel or other result as to matters which may adversely
impact Indemnified Party) by reason of the fact that Indemnified Party is, was
or at any time becomes a director, officer, employee, agent or fiduciary of the
Corporation, or is or was serving or at any time serves at the request of the
Corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise or any
benefit plan related to the business and affairs of the Corporation, and
specifically including any Proceeding brought pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any other provision under the Exchange Act and the Securities Act of
1933, as amended, and the rules and regulations thereunder.
4. LIMITATIONS ON INDEMNITY. No amounts of Indemnity pursuant to Section
2 or 3 hereof shall be paid by the Corporation:
(a) except to the extent that the aggregate of Litigation Costs and
Losses in any Proceeding or group of related Proceedings to be indemnified
hereunder exceeds the amount of Litigation Costs and Losses for which the
Indemnified Party actually receives indemnification payments or on whose
behalf indemnification payments are made pursuant to any D&O Insurance
policy or from any other source;
(b) on account of any payments required to be paid by an Indemnified
Party as a result of any Proceeding in which a final, non-appealable
judgment is rendered against Indemnified Party for an accounting or
disgorgement of profits made from the purchase or sale by Indemnified Party
of securities of the Corporation pursuant to the provisions of Section
16(b) of the Exchange Act;
(c) on account of Indemnified Party's conduct which is finally
adjudged in any Proceeding to have been knowingly fraudulent, deliberately
dishonest or an act or omission involving willful misconduct; or
(d) if a final non-appealable decision by a court having jurisdiction
over the parties and the subject matter shall determine that such
indemnification is not lawful.
5. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnified Party
is a director, officer, employee, agent or fiduciary of the Corporation (or is
or was serving at the request of the Corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise or any benefit plan related to the business and
affairs of the Corporation or of any of its affiliates, subsidiaries, associates
or other entities in which it is interested) and shall
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continue thereafter so long as Indemnified Party shall be subject to any
possible Litigation Costs or Losses in any Proceeding by reason of the fact
that Indemnified Party was a director, officer, employee, agent or fiduciary
of the Corporation (or is or was serving at the request of the Corporation as
a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise or any such benefit
plan).
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Indemnified Party of notice of the commencement of any Proceeding, Indemnified
Party shall, if a claim in respect thereof is to be made against the Corporation
under this Agreement, give written notice to the Corporation of the commencement
thereof as promptly as practicable; but the omission so to notify the
Corporation will not relieve the Corporation from any liability that it may have
to Indemnified Party unless the Corporation can demonstrate by clear and
convincing evidence that it was materially prejudiced by the failure to receive
such notice. With respect to any such Proceeding as to which Indemnified Party
becomes involved:
(a) the Corporation will be entitled to participate therein at its
own expense;
(b) except as otherwise provided below, to the extent that it may
wish, the Corporation may, jointly with any other indemnifying party,
assume the defense thereof, with outside counsel that must be reasonably
satisfactory to Indemnified Party. After notice from the Corporation to
Indemnified Party of its election so to assume the defense thereof (and
consent of Indemnified Party as to the Corporation's choice of outside
counsel, which consent will not be unreasonably withheld), the Corporation
will be liable to Indemnified Party under this Agreement for all Litigation
Costs (subject to Section 4 above and other than as provided below with
respect to attorneys' fees) incurred in connection therewith. Indemnified
Party shall have the right to employ personal counsel in such Proceeding,
but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof (and consent of
Indemnified Party as to the Corporation's choice of outside counsel) shall
be at the expense of Indemnified Party, unless (i) the employment of
counsel for Indemnified Party has been authorized by the Corporation, (ii)
Indemnified Party shall have concluded in good faith that there may be a
conflict of interest between the Corporation and Indemnified Party in the
conduct of the defense (or part of the defense) of such action, or
(iii) the Corporation in fact shall not 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 Corporation. The Corporation shall
not be entitled to assume the defense of any Proceeding brought by or on
behalf of the Corporation or as to which Indemnified Party shall have made
the conclusion provided for in clause (ii) of this Section 6(b); and
(c) the Corporation shall not be liable to indemnify Indemnified
Party under this Agreement for any Losses paid in settlement of any
Proceeding or claim effected without its written consent. The Corporation
shall not settle any Proceeding or claim in any manner that would impose
any penalty, sanction or limitation on Indemnified Party, or otherwise
effectively indicate the existence of any wrongful act by Indemnified
Party, without Indemnified Party's written consent. Neither the
Corporation nor Indemnified Party shall unreasonably withhold its consent
to any proposed settlement. Without intending to limit the circumstances
in which it would be unreasonable for the Corporation to withhold its
consent to a settlement, the parties hereto agree it would be unreasonable
for the Corporation to withhold its consent to a settlement in an amount
that did not exceed, in the business judgment of the Board of Directors of
the Corporation, the estimated amount of Litigation Costs of Indemnified
Party to litigate the Proceeding to conclusion, provided that there is no
other materially adverse consequence to the Corporation from such
settlement.
7. NO PRESUMPTIONS. The termination of any Proceeding by judgment,
order, settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that (a) Indemnified
Party did not act in good faith, (b) with respect to any criminal action or
proceeding, Indemnified Party had reasonable cause to believe that his or her
conduct constituted a criminal violation or (c) Indemnified Party was knowingly
fraudulent, deliberately dishonest or committed an act, or made an omission,
involving willful misconduct.
8. MANDATORY ADVANCEMENT OF EXPENSES. At the request of Indemnified
Party, Litigation Costs incurred or contracted for by him or her in any
Proceeding shall be paid by the Corporation on a continuing and current basis,
in advance of the final disposition of such matter, with the undertaking which
Indemnified Party makes hereby
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that if it shall be ultimately determined that Indemnified Party was not
entitled to be indemnified therefor, or was not entitled to be fully
indemnified therefor, Indemnified Party shall repay to the Corporation the
amount, or appropriate portion thereof, so advanced. Such advancement and
current payment of Litigation Costs by the Corporation shall be made promptly
(but in any event within 10 days) after receipt by the Corporation of
Indemnified Party's request therefor.
9. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified
Party will reimburse the Corporation for all Litigation Costs paid by the
Corporation in connection with any Proceeding in which Indemnified Party is
involved in the event and only to the extent that it shall be ultimately
determined by final non-appealable judgment of a court of competent jurisdiction
that Indemnified Party is not entitled to be indemnified by the Corporation for
such Litigation Costs under the provisions of the State Statute, the Bylaws and
this Agreement.
10. PROCEDURE.
(a) Indemnification hereunder shall be made promptly and in any event
within 30 days of Indemnified Party's written request therefor, unless (i)
an affirmative determination is made reasonably and within such 30-day
period by the Corporation in the manner provided in Section 10(b) below
that Indemnified Party is not entitled to indemnity hereunder for any
reason other than as contemplated by clause (ii) of this Section 10(a), or
(ii) an affirmative determination is required by the State Statute or other
applicable law that the Indemnified Party met an applicable standard of
conduct, in which case the Corporation will cause such determination to be
made within 60 days from the date of the written request for indemnity.
(b) The determination to be made by the Corporation under Section
10(a) above shall be based on the facts known at the time and shall be made
(i) by the Board of Directors of the Corporation, by a majority vote of a
quorum consisting of directors who are not parties to the Proceeding
("disinterested directors"), or (ii) if such a quorum is not obtainable, by
independent legal counsel in a written opinion, or (iii) even if such a
quorum is obtainable, by independent legal counsel in a written opinion if
the Board of Directors of the Corporation, by a majority vote of a quorum
consisting of disinterested directors, so directs, or (iv) by the
stockholders of the Corporation. Any such determination may be contested
by Indemnified Party as hereinafter contemplated.
(c) A failure to make any required determination within the period of
time specified shall be deemed to be a determination favorable to the
Indemnified Party.
11. ENFORCEMENT.
(a) The Corporation expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on the Corporation
hereby and has obtained the approval of its Board of Directors to induce
Indemnified Party to serve or continue serving as a director or an officer
of Corporation and acknowledges that Indemnified Party is relying upon this
Agreement in agreeing to serve or continue serving in such capacity.
(b) In the event Indemnified Party is required to bring any action to
enforce rights or to collect moneys due under this Agreement, the
Corporation shall reimburse Indemnified Party, on a continuing and current
basis, for all of Indemnified Party's reasonable fees and expenses in
bringing and pursuing such action and Indemnified Party shall have no
obligation to reimburse the Corporation therefor unless Indemnified Party
is not successful in such action after rendition of a final, non-appealable
judgment by a court of competent jurisdiction.
(c) The right to indemnification hereunder shall be enforceable by
Indemnified Party in any court of competent jurisdiction if Indemnified
Party's claim therefor is denied, in whole or in part, in the manner
provided herein, or if no disposition of such claim is made within 60 days
from the receipt by the Corporation of Indemnified Party's request for
indemnification hereunder.
12. SEVERABILITY. Each of the provisions of this Agreement is a separate
and distinct agreement and
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independent of the others so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions
hereof. To the extent necessary to give effect to this Agreement, should any
provision hereof be held invalid or unenforceable, this Agreement shall be
reformed in such a manner as to provide the maximum indemnity contemplated
hereby to Indemnified Party, it being the intention of the parties hereto
that this Agreement be otherwise given its maximum effect consistent with the
laws and, to the extent applicable, public policies of the State of Delaware.
13. OBLIGATION TO AMEND. The Corporation agrees to take all actions
necessary to amend this Agreement in the future to increase or otherwise
maximize the indemnity protections intended to be afforded hereby to the extent
then permitted by law.
14. NOTICE. Any notice, request or other communication hereunder to the
Corporation or Indemnified Party shall be in writing and delivered or sent by
postage prepaid first class mail or by hand delivery or express mail service or
by facsimile transmission as follows: (a) if to the Corporation, addressed to
UroCor, Inc., 000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, facsimile
405/290-4150, and (b) if to Indemnified Party, to the address shown on the
signature page hereof or to such other address as Indemnified Party shall
designate from time to time to the Corporation in writing.
15. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Indemnified Party and upon
the Corporation, its successors and assigns, and shall inure to the benefit
of Indemnified Party, his or her heirs, personal representatives and
assigns and to the benefit of the Corporation, its successors and assigns.
The Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or any substantial
part of the business or assets of the Corporation, by agreement in form and
substance satisfactory to Indemnified Party, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that
the Corporation would be required to perform it if no such succession had
taken place. Failure of the Corporation to obtain such agreement prior to
effectiveness of any succession shall be a breach of this Agreement and
shall entitle Indemnified Party to appropriate equitable relief or monetary
damages from the Corporation in an amount necessary to provide Indemnified
Party with the protections to which he or she would be entitled hereunder.
As used in this Agreement, the "Corporation" shall mean the Corporation as
hereinbefore defined and any successor to its business or assets as
aforesaid that executes and delivers the agreement provided for by this
Section 15(b) or that otherwise becomes bound by all of the terms and
provisions of this Agreement by operation of law.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties relating to the subject matter hereof and
supersedes all prior agreements between the parties relating to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
UroCor, Inc.
By:
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Xxxxxxx X. Xxxxxxxx
President and Chief
Executive Officer
[Name of Indemnified Party]
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Address:
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Facsimile:
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SCHEDULE 10.12
INDEMNITY AGREEMENTS
CURRENT BOARD MEMBERS
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx, M.D.
Xxxxxxx X. Xxxxxxx Xxxxx Xxxx, Xx.
Xxxxxx X. Xxxxx
CURRENT EMPLOYEES
Xxxxxxx X. Xxxxxxxx Socrates H. Choumbakos
Xxxxxx X. Xxxxxx, Ph.D. Xxxx X. Xxxxxxxxx
Xxxx X. Xxxx Xxxxxxx X. XxXxxxxx
Xxx Xxx Xxxxxxxxxx Xxxxxx O'Xxxx
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
PAST BOARD MEMBERS
Xxxx X. Xxxxx, M.D.
FORMER EMPLOYEES
Xxxxxxx X.X. Xxxxxxx
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