EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this ____ day of _________, 2000, between OraSure
Technologies, Inc., a Delaware corporation (the "Company"), and
_________________________ ("Indemnitee").
WHEREAS, it is important to the Company to attract and retain as directors
and officers the most capable persons available; and
WHEREAS, the Bylaws of the Company (the "Bylaws") provide for the
indemnification of the directors, officers, employees and agents of the Company
as authorized by Delaware General Corporation Law Section 145 (the "State
Statute"); and
WHEREAS, such Bylaws and the State Statute specifically provide that they
are not exclusive, and thereby contemplate that contracts may be entered into
between the Company and its directors and officers with respect to
indemnification of such directors and officers; and
WHEREAS, in accordance with the authorization provided by the State Statute
and the Bylaws, the Company may purchase a policy or policies of Directors and
Officers Liability Insurance ("D&O Insurance"), covering certain liabilities
which may be incurred by its directors and officers in the performance of their
services for the Company; and
WHEREAS, recent developments with respect to the terms and availability of
D&O Insurance and with respect to the application, amendment and enforcement of
statutory and bylaw indemnification provisions generally have raised questions
concerning the adequacy and reliability of the protection afforded to directors
and officers thereby; and
WHEREAS, in order to resolve such questions and thereby induce Indemnitee
to agree to serve or continue to serve as a director and/or officer of the
Company, the Company has determined and agreed to enter into this contract with
Indemnitee;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's
agreeing to serve or continuing to serve as a director and/or officer of the
Company, the parties hereto agree as follows:
1. Indemnity. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the full extent permitted by law:
(a) Against any and all expenses (including attorneys' fees),
judgments, fines, penalties and amounts paid in settlement (including,
without limitation, all interest, assessments and other charges paid or
payable in connection therewith) actually and reasonably incurred by
Indemnitee in connection with any threatened, pending or completed action,
suit or proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, to
which Indemnitee is, was or at any time becomes a party, or is threatened
to be made a party, by reason of the fact that Indemnitee is, was or at any
time becomes a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other entity or
enterprise, or by reason of anything done or not done by Indemnitee in any
such capacity, whether prior to or subsequent to the date of this
Agreement; and
(b) Against any and all expenses (including attorneys' fees) actually
and reasonably incurred by Indemnitee in serving or preparing to serve as a
witness or other participant in any threatened, pending or completed
action, suit or proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, if Indemnitee is such a witness or participant by reason of
the fact that Indemnitee is, was or at any time becomes a director,
officer, employee, agent or fiduciary of the Company or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other entity or enterprise.
2. Specific Limitations on Indemnity. Indemnitee shall not be entitled to
indemnification under this Agreement:
(a) In respect to remuneration paid to or advantage gained by
Indemnitee if it shall be determined by a final judgment or other final
adjudication that Indemnitee was not legally entitled to such remuneration
or advantage;
(b) On account of Indemnitee's conduct which is determined by a final
judgment or other final adjudication to have been knowingly fraudulent,
deliberately dishonest or willful misconduct;
(c) Prior to a Change in Control (as defined in Section 4(e)), in
respect of any action, suit or proceeding initiated by Indemnitee against
the Company or any director or officer of the Company (unless the Company
has joined in or consented to the initiation of such action, suit or
proceeding), except (i) as set forth in Section 12(b) hereof, (ii) in
respect of any counterclaims made against Indemnitee in any such action,
suit or proceeding, and (iii) to the extent Indemnitee seeks contribution
or apportionment of an award or settlement against Indemnitee and against
the Company and/or any other director or officer of the Company;
(d) On account of any matter determined by a final judgment or other
final adjudication to be a violation by Indemnitee of the provisions of
Section 16 of the Securities Exchange Act of 1934, as amended (the "Act"),
or the rules and regulations promulgated thereunder, as amended from time
to time; or
(e) With respect to any matter if it shall be determined by a final
judgment or other final adjudication that such indemnification is not
lawful.
3. Advance of Expenses and Payment of Indemnification. Upon the written
request of Indemnitee, expenses that are subject to indemnification under this
Agreement shall be advanced by the Company within five (5) business days of
receipt of such request. Subject to Section 4(a), indemnification shall be made
under this Agreement no later than sixty (60) days after receipt by the Company
of the written request of Indemnitee, which written request shall identify the
judgments, fines, penalties and amounts paid in settlement that are subject to
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indemnification under this Agreement and for which indemnification is requested.
Written request shall be deemed received three days after the date postmarked if
sent by prepaid mail properly addressed to the Company at the address set forth
in Section 11 hereof.
4. Determination of Indemnification.
(a) Notwithstanding any other provision of this Agreement (i) the
obligations of the Company under Section 1 shall be subject to the condition
that the Reviewing Party (as defined in Section 4(f)) shall have determined (in
a written opinion, in any case in which the Independent Legal Counsel (as
defined in Section 4(g)) is involved) that Indemnitee would be permitted to be
indemnified under this Agreement, (ii) the obligation of the Company to make an
expense advance pursuant to Section 3 shall be subject to the condition that,
if, when and to the extent that it is finally determined that Indemnitee would
not be permitted to be indemnified for such expenses under this Agreement, the
Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees and
undertakes to reimburse the Company) for all such amounts theretofore paid, and
(iii) the obligation of the Company to make an expense advance pursuant to
Section 3 shall be made without regard to Indemnitee's ability to repay the
amount advanced and without regard to Indemnitee's ultimate entitlement to
indemnification under this Agreement or otherwise. Indemnitee's obligation to
reimburse the Company for expense advances shall be unsecured and no interest
shall be charged thereon.
(b) The Reviewing Party shall be selected by the Board of Directors,
provided, however, that if there has been a Change in Control (other than a
Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control) the
Reviewing Party shall be the Independent Legal Counsel. If there has been no
determination by the Reviewing Party within the sixty (60) day period referred
to in Section 3, the Reviewing Party shall be deemed to have made a
determination that it is permissible to indemnify Indemnitee under this
Agreement.
(c) The Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a majority of the
Company's Board of Directors who were directors immediately prior to such Change
in Control) then Independent Legal Counsel shall be selected by Indemnitee and
approved by the Company (which approval shall not unreasonably be withheld) and
such Independent Legal Counsel shall determine whether the director or officer
is entitled to indemnification for expenses, judgments, fines, penalties and
amounts paid in settlement (including, without limitation, all interest,
assessments and other charges paid or payable in connection therewith) under
this Agreement or any other agreement or the Certificate of Incorporation or
Bylaws of the Company now or hereafter in effect relating to indemnification.
Such Independent Legal Counsel shall render its written opinion to the Company
and Indemnitee as to whether and to what extent Indemnitee will be permitted to
be indemnified for expenses, judgments, fines, penalties and amounts paid in
settlement (including, without limitation, all interest, assessments and other
charges paid or payable in connection therewith). The Company agrees to pay the
reasonable fees of the Independent Legal Counsel and to indemnify fully such
Independent Legal Counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or the engagement of Independent Legal Counsel pursuant hereto.
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(d) If a determination denying Indemnitee's claim is made by a Reviewing
Party (other than Independent Legal Counsel), notice of such determination shall
disclose with particularity the reasons for such determination. If a
determination denying Indemnitee's claim is made by Independent Legal Counsel,
the notice shall include a copy of the related legal opinion of such counsel.
(e) "Change in Control" shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Act), other
than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of securities of
the Company representing 15% or more of the total voting power represented by
the Company's then outstanding Voting Securities (as defined in Section 4(h)),
or (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least two-
thirds (2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 85% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions) of
all or substantially all of the assets of the Company.
(f) "Reviewing Party" shall mean any appropriate person or body consisting
of a member or members of the Board of Directors of the Company or any other
person or body appointed by the Board who is not a party to the particular
action, suit or proceeding with respect to which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
(g) "Independent Legal Counsel" shall mean an attorney, selected in
accordance with the provisions of Section 4(c), who shall not have otherwise
performed services for the Company or Indemnitee within the last five years
(other than in connection with seeking indemnification under this Agreement).
Independent Legal Counsel shall not be 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 rights under this Agreement, nor shall Independent Legal
Counsel be any person who has been sanctioned or censured for ethical violations
of applicable standards of professional conduct.
(h) "Voting Securities" shall mean any securities of the Company which
vote generally in the election of directors.
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5. Partial Indemnity. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines, penalties and amounts paid in settlement (including,
without limitation, all interest, assessments and other charges paid or payable
in connection therewith) incurred by Indemnitee, but not for the total amount
thereof, the Company shall indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee has been successful on merits or otherwise in
defense of any or all actions, suits or proceedings relating in whole or in part
to an event subject to indemnification hereunder or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against expenses incurred in connection with such action, suit,
proceeding, issue or matter, as the case may be.
6. Non-exclusivity. The rights of Indemnitee under this Agreement shall
be in addition to any other rights Indemnitee may have under the Certificate of
Incorporation, the Bylaws, any other agreement of the Company, the Delaware
General Corporation Law ("DGCL"), D&O Insurance or otherwise. To the extent that
any change in the DGCL (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Certificate of Incorporation and the Bylaws of the Company and this Agreement,
it is the intent of the parties hereto that Indemnitee shall by this Agreement
be entitled to the greater benefits so afforded by such change.
7. Liability Insurance. To the extent the Company maintains D&O
Insurance, the Company shall maintain coverage for Indemnitee under such policy
or policies, in accordance with its or their terms, to the maximum extent of the
coverage provided under such policy or policies in effect for any other director
or officer of the Company.
8. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim against Indemnitee to
the extent Indemnitee has otherwise actually received payment (under any
insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder or to the extent that Indemnitee is entitled to be indemnified
directly by any insurance company under the individual directors' and officers'
liability provisions of any D&O Insurance maintained by the Company.
9. No Presumption. For purposes of this Agreement, the termination of any
claim, actions, suit or proceeding by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not of itself create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
10. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer, employee, agent or fiduciary of the Company, or is serving at
the request of the Company as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, trust or other entity or
enterprise, and shall continue thereafter so long as Indemnitee shall be subject
to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil,
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criminal or investigative, by reason of the fact that Indemnitee was a director
or officer of the Company or serving in any other capacity referred to herein.
11. Notification of Proceedings; Consent to Settlements; Defense.
(a) Promptly after receipt by Indemnitee of notice of the commencement of
any action, suit or proceeding, Indemnitee shall, if a claim in respect thereof
is to be made against the Company under this Agreement, notify the Company of
the commencement thereof. Notice shall be in writing and shall be addressed as
follows:
OraSure Technologies, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Such notice shall be deemed received if sent by prepaid mail properly
addressed. Indemnitee and the Company shall cooperate fully with each other in
the defense of any such action, suit or proceeding and each shall provide the
other with such information as the other may reasonably require. The Company
shall not be liable to indemnify Indemnitee under this Agreement for any amounts
paid in settlement of any action, suit or proceeding effected without its prior
written consent (which consent shall not unreasonably be withheld).
(b) The Company shall be entitled to participate in the action, suit or
proceeding at its own expense.
(c) Except as otherwise provided below, the Company may, at its option,
assume the defense of such action, suit or proceeding with legal counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense of an action, suit or
proceeding, the Company will not be liable to Indemnitee for expenses incurred
by Indemnitee in connection with such action, suit or proceeding under this
Agreement, including Section 3 hereof, other than Indemnitee's reasonable costs
of investigation or participation in such action, suit or proceeding (including,
without limitation, travel expenses) and except as provided below. Indemnitee
shall have the right to employ Indemnitee's own counsel in any such action, suit
or proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense of such action, suit or
proceeding 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, suit or
proceeding, or (iii) the Company shall not in fact have employed counsel to
assume the defense of such action, suit or proceeding, in each of which cases
the fees and expenses of Indemnitee's counsel shall be advanced by the Company
as provided in Section 3 hereof. The Company shall not be entitled to assume the
defense of any such action, suit or proceeding brought by or on behalf of the
Company.
(d) If two or more persons, including Indemnitee, may be entitled to
indemnification from the Company as parties to any action, suit or proceeding,
the Company may require Indemnitee to use the same legal counsel as the other
parties. Indemnitee shall have the right to
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use separate legal counsel in such action, suit or proceeding, but the Company
shall not be liable to Indemnitee under this Agreement, including Section 3
hereof, for the fees and expenses of separate legal counsel incurred after
notice from the Company of the requirement to use the same legal counsel as the
other parties, unless Indemnitee reasonably concludes that there may be a
conflict of interest between Indemnitee and any of the other parties required by
the Company to be represented by the same legal counsel.
(e) Indemnitee shall permit the Company to settle any action, suit or
proceeding that the Company assumes the defense of, except that the Company
shall not, without Indemnitee's written consent, settle any action, suit or
proceeding unless such settlement includes a provision whereby the parties to
the settlement unconditionally release Indemnitee from all liabilities, damages,
fines, penalties, costs and expenses in respect of claims by reason of the
settlement or release of the parties in such action, suit or proceeding.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to agree to serve or to continue to serve as a director and/or
officer of the Company and acknowledges that Indemnitee is relying upon this
Agreement in agreeing to serve or continuing to serve in such capacity.
(b) The right to indemnification provided by this Agreement shall be
enforceable by Indemnitee in any court in the State of Delaware having subject
matter jurisdiction thereof and in which venue is proper. Indemnitee shall have
the right to commence litigation in any such court challenging any determination
by the Reviewing Party or any aspect thereof, or the legal or factual bases
therefor. The Company shall reimburse Indemnitee for any and all reasonable
expenses (including attorneys' fees) incurred by Indemnitee in connection with
any claim asserted or action brought by Indemnitee to enforce rights or to
collect moneys due under this Agreement, the Certificate of Incorporation or the
Bylaws of the Company or any other agreement with the Company nor or hereafter
in effect relating to indemnification, or any D&O Insurance purchased and
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance coverage, as the case may be, unless the court determines that the
claim or action is frivolous or that assertions made therein were made with no
reasonable basis.
(c) In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
13. Separability. Each of the provisions of this Agreement is a separate
and distinct agreement and 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.
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14. 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 without giving effect to the principles of
conflicts of laws thereof.
(b) This Agreement shall be binding upon Indemnitee and upon the Company,
its successors and assigns (including any transferee of all or substantially all
of the assets of the Company and any successor by merger or operation of law),
and shall inure to the benefit of Indemnitee, his or her heirs, personal
representatives and assigns and to the benefit of the Company, its successors
and assigns. The Company shall require and cause any successor to all or
substantially all of its assets, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no succession had taken place.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto. No
waiver of any provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof, and no such waiver shall constitute a
continuing waiver.
15. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of such 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.
16. Change in Other Rights. The Company will not adopt any amendment to
the Certificate of Incorporation or Bylaws of the Company the effect of which
would be to deny, diminish or encumber Indemnitee's rights to indemnification,
advancement of expenses, exculpation or maintenance of the D & O Insurance
hereunder, under such other documents or under applicable law, as applied to any
act or failure to act occurring in whole or in part prior to the date upon which
any such amendment was approved by the Board of Directors or the stockholders,
as the case may be. Notwithstanding the foregoing, if the Company adopts any
amendment to the Certificate of Incorporation or Bylaws the effect of which is
to so deny, diminish or encumber such rights, such amendment will apply only to
acts or failures to act occurring entirely after the effective date thereof.
17. Savings Clause. If this Agreement or any provision hereof is
invalidated on any ground by any court of competent jurisdiction, the Company
shall nevertheless indemnify Indemnitee as to any expenses, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with any action, suit or proceeding to the fullest
extent permitted by any applicable provision of this Agreement that has not been
invalidated and to the fullest extent permitted by Delaware law.
18. Deposit of Funds in Trust. In the event that the Company decides to
voluntarily dissolve or to file a voluntary petition for relief under applicable
bankruptcy, moratorium or similar laws, then not later than ten (10) days prior
to such dissolution or filing, the Company shall deposit in trust for the
exclusive benefit of Indemnitee a cash amount equal to all amounts
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previously authorized to be paid to Indemnitee hereunder, such amounts to be
used to discharge the Company's obligations to Indemnitee hereunder. Any amount
in such trust not required for such purpose shall be returned to the Company.
19. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ORASURE TECHNOLOGIES, INC.
By:
----------------------------
President
--------------------------------
[NAME]
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LIST OF PARTIES WHO WILL EXECUTE INDEMNIFICATION AGREEMENTS
OraSure Technologies
Name Pre-Merger Title
---- ----------------
Xxxxxx X. Xxxxxxxxx Director, Vice President of Product
Support and Development and Secretary
Xxxxxx Xxxxxx Vice President of Regulatory Affairs and
Quality Assurance
W. Xxxxxxx Xxxxxxxxx Director
Xxxxxxxx X. Xxxxxx Director
Xxxxxxx X. Xxxxxx Director
G. Xxxxxxx Xxxxxxxx Director
Xxxxxx X. Xxxxxxx Director
OraSure Technologies
Name Post-Merger Title
---- -----------------
Xxxxxx X. Xxxxxxxx Director and Chief Executive Officer
Xxxxxxx X. Xxxxxxxx Director, President and Chief Operating Officer
R. Xxx Xxxxxxxx, Ph.D. Executive Vice President and Chief Science
Officer
J. Xxxxxxx Xxxxxx, Ph.D. Senior Vice President of Research and
Development, Infectious Disease
Xxxxxxx X. Xxxxxxxx Vice President and Chief Financial Officer
Xxxxxxx X. Block Senior Vice President of Sales
Xxxxxxx Xxxxxxx Vice President of Marketing
Xxxxxxx X. Xxxxxx Director
Xxxxxxx X. Xxxxxx Director
Xxxxx X. Xxxxxxxx Director
Xxxxx X. Xxxxxxx Director
Joint Director Designee Director
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