Exhibit 10.5
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LABONE, INC.
INDEMNIFICATION AGREEMENT
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This INDEMNIFICATION AGREEMENT (the "Agreement") is made as of February
12, 1999 by and between LABONE, INC., a Delaware corporation (the "Company"),
and DIRECTOR (the "Indemnitee").
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WHEREAS, highly competent persons are reluctant to serve publicly-held
corporations as officers, directors and in certain other capacities unless
they are provided with adequate protection through insurance or indemnification
against claims brought against them as a result of such service;
WHEREAS, Indemnitee is presently serving as a director of the Company and
as a member of the Special Committee of Independent Directors (the "Special
Committee") and/or other committees of the Board of Directors of the Company,
and/or as an officer of the Company, and/or at the request of the Company in
certain other capacities;
WHEREAS, the Company believes that the Indemnitee's continuing service in
such capacities is important to the Company;
WHEREAS, the Company and the Indemnitee have reviewed the indemnification
and exculpation provisions in the Company's governing documents and in the
General Corporation Law of Delaware, have investigated the availability and
sufficiency of liability insurance and have concluded that additional
protection is required to induce persons to serve or to continue to serve the
Company in the foregoing capacities;
WHEREAS, the Board of Directors has determined that this Agreement is
reasonable, prudent and necessary in order to induce and encourage highly
experienced and capable persons such as the Indemnitee to serve or to continue
to serve the Company in the foregoing capacities;
WHEREAS, Indemnitee is willing, subject to certain conditions, including
without limitation the execution and performance of this Agreement by the
Company, to continue to serve in his present capacities and/or to take on
additional service for and on behalf of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Indemnitee do hereby agree as follows:
1. Definitions. As used in this Agreement:
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(a) The term "Proceeding" shall include, without limitation, any
threatened, pending or completed 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.
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(b) The term "Expenses" shall include, without limitation,
attorneys' fees, disbursements, retainers, accounting and witness fees,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, court costs, court reporter fees
and any expenses of establishing a right to indemnification and/or
advancement of expenses pursuant to this Agreement or otherwise. The term
"Expenses" does not include amounts paid in settlement by or on behalf of
Indemnitee or the amount of judgments, fines, penalties or liabilities
incurred by Indemnitee.
(c) References to "other enterprise" shall include, without
limitation, employee benefit plans; references to "fines" shall include,
without limitation, any excise tax, penalty or other amount assessed with
respect to any employee benefit plan pursuant to the Employee Retirement
Income Security Act of 1974, as amended from time to time, the Internal
Revenue Code of 1986, as amended from time to time, any other statute or
the common law; references to "serving at the request of the Company" shall
include, without limitation, any service as a director, officer, employee
or agent which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or its beneficiaries.
2. Agreement to Serve.
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The Indemnitee agrees to serve or to continue to serve as a director
(including as a member of any committee of directors) and/or officer of the
Company and/or at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, in each case so long as he or she is duly elected and qualified
to serve in such capacity or until he or she resigns or is removed. The
provisions of this Section relating to service by the Indemnitee shall not be
deemed to affect the terms of any employment or other agreement now or
hereafter in effect between the Company and the Indemnitee governing such
service.
3. Indemnification.
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The Company shall, subject to the provisions of this Agreement, indemnify
the Indemnitee if the Indemnitee is or was involved or is or was threatened
to be made involved as a party, witness or otherwise in any Proceeding
(including, without limitation, any Proceeding by or in the right of the
Company to procure a judgment in its favor), by reason of the fact that the
Indemnitee is or was a director (including a member of any committee of
directors) or officer of the Company, or is or was serving at the request
of the Company as a director (including as a member of any committee of
directors), officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action or
inaction of the Indemnitee while acting in any of the foregoing capacities,
against all Expenses, judgments, fines, penalties, liabilities 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 the Indemnitee in connection with such Proceeding,
provided that no such indemnity shall indemnify Indemnitee on account of
Indemnitee's conduct which was finally adjudged by a court of competent
jurisdiction to have been knowingly fraudulent, deliberately dishonest or
willful misconduct.
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4. No Presumption.
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For purposes of this Agreement, the termination of any 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,
adversely affect the right of the Indemnitee to indemnification or 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
of Indemnitee is not permitted under this Agreement or applicable law.
5. Partial Indemnification.
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If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for a portion of the Expenses, judgments, fines,
penalties, liabilities or amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with any Proceeding but not, however, for
the total amount thereof, the Company shall indemnify the Indemnitee for the
portion thereof to which the Indemnitee is entitled.
6. Limitations on Indemnification.
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No payments pursuant to this Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for Expenses
with respect to proceedings initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to proceedings brought to
establish or enforce a right to indemnification or advances under this
Agreement or otherwise, but such indemnification or advancement of Expenses may
be provided by the Company in specific cases if the Board of Directors finds it
to be appropriate;
(b) To indemnify the Indemnitee on account of any matter finally
adjudged by a court of competent jurisdiction to be a violation of the
provisions of Section 16 of the Securities Exchange Act of 1934 ("Exchange
Act"), and the rules and regulations promulgated thereunder, as amended from
time to time;
(c) To indemnify the Indemnitee for the return of any remuneration
paid to the Indemnitee that is finally adjudged by a court of competent
jurisdiction to have been illegal or improper; or
(d) To indemnify the Indemnitee with respect to any matter if a
court of competent jurisdiction shall finally determine that such
indemnification is not lawful.
7. Notice and Defense of Proceeding. Within a reasonable time after
receipt by the Indemnitee of actual and not constructive notice of the
commencement of any Proceeding, the Indemnitee shall provide written notice to
the Company of the commencement thereof by delivery of a notice substantially
in the form attached hereto as Exhibit A or in such other form as the Company
may reasonably accept. The omission to so notify the Company will relieve it
from any liability which it may have to the Indemnitee in connection with such
Proceeding under this Agreement, but shall not relieve the Company from any
liability which it may have to Indemnitee otherwise than under this Agreement.
With respect to any such Proceeding:
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(a) The Company shall be entitled to participate in the
Proceeding at its own expense.
(b) Except as otherwise provided below, the Company may, at its
option and jointly with any other indemnifying party similarly notified and
electing to assume such defense, assume the defense of the Proceeding, with
legal counsel reasonably satisfactory to the Indemnitee. After notice from
the Company to the Indemnitee of its election to assume the defense of a
Proceeding, the Company will not be liable to the Indemnitee for Expenses
incurred by the Indemnitee in connection with such Proceeding under this
Agreement, including Section 8 hereof, other than Indemnitee's reasonable
costs of investigation or participation in such Proceeding (including, without
limitation, travel expenses) and except as provided below. The Indemnitee
shall have the right to employ Indemnitee's own counsel in any Proceeding, but
the fees and expenses of such counsel incurred after notice from the Company
of its assumption of the defense of the Proceeding shall be at the expense of
the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of the defense of a Proceeding, or (iii) the Company shall not
in fact have employed counsel to assume the defense of a Proceeding, in each of
which cases the fees and expenses of the Indemnitee's counsel shall be advanced
by the Company as provided in Section 8 hereof. The Company shall not be
entitled to assume the defense of any Proceeding brought by or on behalf of
the Company.
(c) If two or more persons, including the Indemnitee, may be
entitled to indemnification from the Company as parties to any Proceeding, the
Company may require the Indemnitee to use the same legal counsel as the other
parties. The Indemnitee shall have the right to use separate legal counsel in
the Proceeding, but the Company shall not be liable to the Indemnitee under
this Agreement, including Section 8 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 the
Indemnitee reasonably concludes that there may be a conflict of interest
between the Indemnitee and any of the other parties required by the Company
to be represented by the same legal counsel.
(d) The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent, which shall not be unreasonably withheld.
The Indemnitee shall permit the Company to settle any Proceeding that the
Company assumes the defense of, except that the Company shall not, without the
Indemnitee's written consent, settle any action or claim unless such settlement
includes a provision whereby the parties to the settlement unconditionally
release Indemnitee from all liabilities, damages, costs and expenses in respect
of claims by reason of the settlement or release of the parties in such
Proceeding.
8. Advancement of Expenses.
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(a) Except as provided in Section 7 hereof, the Expenses incurred
by the Indemnitee in any Proceeding shall be paid by the Company in advance of
the final disposition of the Proceeding at the written request of the
Indemnitee. Except as expressly provided in Section 8(b) hereof, no security
shall be required by the Company in making Expense advances, and such advances
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shall be made without regard to the Indemnitee's ability to repay the amount
advanced and without regard to the Indemnitee's ultimate entitlement to
indemnification under this Agreement or otherwise.
(b) Indemnitee shall make an Expense advance request by delivery
to Company of a signed request substantially in the form attached hereto as
Exhibit B or in such other form as the Company may reasonably accept. As long
as Delaware law requires such an undertaking, the request shall include an
undertaking by Indemnitee to repay any advances to the extent that it is
ultimately determined that the Indemnitee is not entitled to indemnification.
Advances requested by Indemnitee hereunder shall be paid by the Company no
later than ten days after receipt by the Company of the written request. In
the event the Company does not honor Indemnitee's request for an Expense
advance, Indemnitee may bring an action in any court of competent jurisdiction
to enforce the right to the advance, and the Company shall have the burden of
proof in such action to demonstrate that Indemnitee is not entitled to such
advance.
(c) Expenses submitted to the Company for reimbursement must be
reasonable and comply with the then existing billing procedures of the Company
so that the Company can reasonably monitor and audit such Expenses.
9. Claim for Indemnification; Enforcement.
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(a) In the event that Indemnitee becomes liable for any judgment,
penalty or fine, or pursuant to any settlement agreement, for which
indemnification may be provided under this Agreement, Indemnitee shall deliver
to the Company within a reasonable time a signed request substantially in the
form attached hereto as Exhibit C or in such other form as the Company may
reasonably approve. The Company shall make a determination as to Indemnitee's
right to indemnification and, if applicable, pay Indemnitee's claim, no later
than 60 days after receipt by the Company of the written request for
indemnification. The determination of Indemnitee's right to indemnification
shall be made: (i) by a majority vote of directors who were not parties to the
Proceeding, even though less than a quorum, (ii) if there are no such
directors, or if such directors so direct, or if Indemnitee so requests in
writing at the time the Indemnitee submits the claim for indemnification, by
independent legal counsel in a written opinion, or (iii) by the stockholders of
the Company. Such independent legal counsel shall be selected by the persons
specified in (i), or if there are none or if a majority vote thereof is not
obtainable, by a majority vote of the entire Board of Directors, which
independent legal counsel shall be approved by the Indemnitee in writing (which
approval shall not be unreasonably withheld). The Indemnitee shall be
conclusively presumed to have met the applicable standards of conduct for
indemnification pursuant to this Agreement, unless Indemnitee receives written
notice of a determination that the Indemnitee has not met such applicable
standards of conduct within such 60 day period. If a determination denying
Indemnitee's claim is made by the persons specified in (i) or (iii) above, such
notice 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.
(b) If a claim for indemnification by Indemnitee under this
Agreement is denied by the Company or is not paid by the Company within 60 days
after receipt by the Company of the written request for indemnification, the
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Indemnitee may bring suit in any court of competent jurisdiction against the
Company to enforce the right to indemnification provided by this Agreement.
The burden of proving that indemnification is not appropriate shall be on the
Company. An actual determination by the directors or stockholders of the
Company or independent legal counsel that the Indemnitee has not met the
applicable standard of conduct shall not be admissible in such action as
evidence that the Indemnitee has not met the applicable standard of conduct.
(c) The Indemnitee shall be entitled to indemnification and
advancement of Expenses as provided in this Agreement with regard to Expenses
incurred in connection with any action by the Indemnitee enforcing the right
to indemnification or advances in whole or in part pursuant to this Agreement
regardless of the outcome of such action, unless a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such action was not made in good faith or was frivolous.
10. Subrogation.
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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 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.
11. Duplication of Payments.
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(a) The Company will not be liable under this Agreement to make
any payment to Indemnitee in connection with any Proceeding to the extent the
Indemnitee has actually received payment of the claim otherwise payable
hereunder under any insurance policy, the Company's Certificate of
Incorporation or By-laws or otherwise; provided, however, that nothing in
this Section shall affect the liability, if any, of the Company to Lab
Holdings, Inc. ("Lab Holdings") in connection with a claim brought by Lab
Holdings as subrogee of Indemnitee's rights under this Agreement.
(b) Notwithstanding any provision to the contrary, if the
Company denies or has not paid Indemnitee's claim for indemnification within
60 days after receipt by the Company of the written request for
indemnification by the Indemnitee, then Indemnitee may submit a request for
indemnification from Lab Holdings pursuant to the Indemnification Agreement
between Lab Holdings and Indemnitee; provided, however, that the Company's
denial or failure to pay the Indemnitee's claim for indemnity within such 60
day period shall not relieve the Company or Lab Holdings from their
obligations to indemnify Indemnitee under the respective Indemnification
Agreements or otherwise.
12. Maintenance of Liability Insurance.
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(a) The Company represents that it currently has in effect the
following policy or policies of directors' and officers' liability insurance
(the "D&O Insurance") which cover Indemnitee as an insured:
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INSURER POLICY NO. AMOUNT
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Executive Risk Indemnity, Inc. 000-000000-00 $15,000,000
Royal Surplus Lines Insurance Company KS F000197 $10,000,000
(b) The Company hereby covenants and agrees that, as long as
the Indemnitee continues to serve as a director and/or officer of the Company
and/or at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
and thereafter as long as the Indemnitee may be subject to any possible
Proceeding, or is a party or is threatened to be made a party to any
Proceeding, the Company shall promptly obtain and maintain the D&O Insurance
policies in full force and effect to the extent that such policies are
obtainable at an annual cost of not greater than twice the annual premium on
the date hereof, provided that if such coverage is not available for such
amount, the Company shall obtain and maintain as much coverage as possible
for such amount.
(c) In all D&O Insurance policies, the Indemnitee shall be named
as an insured in such a manner as to provide the Indemnitee the same rights
and benefits as are accorded to the most favorably insured of the Company's
directors.
(d) In addition to the other obligations of the Company under
this Agreement, and not in limitation thereof, if the Company, acting under
paragraph (b) of this Section 12, is unable to maintain in effect the D&O
Insurance policies, the Company shall indemnify and hold harmless Indemnitee
to the full extent of the coverage which would otherwise have been provided
for the benefit of Indemnitee pursuant to the D&O Insurance policies.
13. Change in Control.
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In the event that the Company shall be a constituent corporation in a
consolidation or merger, whether the Company is the resulting or surviving
corporation or is absorbed, or if there is a change in control of the Company
as defined in this Section, Indemnitee shall stand in the same position under
this Agreement with respect to the resulting, surviving or changed corporation
as he would have with respect to the Company if its separate existence had
continued or if there had been no change in control of the Company. "Change
in control" shall include any change in the ownership of a majority of the
capital stock of the Company or in the composition of a majority of the
members of the Board of Directors of the Company.
14. Non-Exclusivity, etc.
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The rights of Indemnitee hereunder shall be in addition to any other rights
to which the Indemnitee may be entitled under the Company's Certificate of
Incorporation, Bylaws, any agreement, vote of stockholders or disinterested
directors, provision of Delaware law, insurance policy or otherwise, both as
to action in Indemnitee's official capacity and as to action in another
capacity on behalf of the Company while holding such office, and such rights
shall continue as to Indemnitee even though Indemnitee may have ceased to be
a director or officer of the Company or ceased to serve at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. To the extent that a
change in the Delaware General Corporation Law (whether by statute or judicial
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decision) permits greater rights to indemnification and advancement of
expenses by agreement than would be afforded currently under this Agreement,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change.
15. Deposit of Funds in Trust.
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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 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 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. This Section 15 shall not
apply to any dissolution of the Company in connection with a transaction as
to which Section 13 hereof applies.
16. Change in Other Rights.
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The Company will not adopt any amendment to the Certificate of Incorporation
or By-Laws of the Company the effect of which would be to deny, diminish or
encumber the 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 in or 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 By-Laws 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. Separability.
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Each provision 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. To the extent required, any provision of this
Agreement may be modified by a court of competent jurisdiction to preserve
its validity and to provide the Indemnitee with the broadest possible
indemnification permitted under Delaware law.
18. Savings Clause.
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If this Agreement or any provision hereof is invalidated on any ground by any
court of competent jurisdiction, the Company shall nevertheless indemnify the
Indemnitee as to any Expenses, judgments, fines, penalties, liabilities and
amounts paid in settlement actually and reasonably incurred by the Indemnitee
in connection with any Proceeding to the fullest extent permitted by any
applicable provision of this Agreement that has not been invalidated and to
the fullest extent permitted under Delaware law.
19. Amendments.
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No amendment, waiver, modification, termination or cancellation of this
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Agreement shall be effective unless in writing signed by the party against
whom enforcement is sought. The rights to indemnification and advancement
of expenses afforded to the Indemnitee hereby are contract rights and may
not be diminished, eliminated or otherwise affected by amendments to the
Certificate of Incorporation, Bylaws or by other agreements, including D&O
Insurance policies.
20. Counterparts.
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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.
21. Successors and Assigns.
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This Agreement shall be binding upon, and shall inure to the benefit of
the Indemnitee and his heirs, executors, administrators and personal
representatives, and the Company and its successors and assigns.
22. Notices.
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All notices, requests and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given (a) upon delivery by hand
to the party to whom the notice, request or other communication shall have been
directed or (b) on the third business day after the date on which it is mailed
by certified or registered mail with postage prepaid, addressed as follows:
(i) if to the Indemnitee, to the address indicated on the
signature page, below said Indemnitee's signature, and
(ii) if to the Company, to:
LabOne, Inc.
00000 X. 00xx Xxxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Secretary
or to such other address as either shall designate in writing.
23. Governing Law.
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This Agreement shall be governed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to the principles of conflict
of laws thereof.
24. Prior Agreement.
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The prior Indemnification Agreement between the Company and the Indemnitee
is superseded by this Agreement and is no longer in effect.
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
LABONE, INC.
By:
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DIRECTOR
"Indemnitee"
Address of Indemnitee:
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Exhibit A
LABONE, INC.
NOTICE OF
COMMENCEMENT OF PROCEEDING
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1. This notification is provided pursuant to the Indemnification Agreement,
dated as of February 12, 1999 (the "Indemnification Agreement"), between
LabOne, Inc., a Delaware corporation (the "Company"), and the undersigned.
2. I have received actual notice of a Proceeding with respect to which I may
have certain rights under the Indemnification Agreement. The following is a
description of the Proceeding and my involvement in the Proceeding (as a party,
witness or otherwise):
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3. I have attached such documents relating to the matter described above as
are reasonably available to me and are reasonably necessary to determine
whether the Proceeding is subject to the terms of the Indemnification
Agreement.
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Name: DIRECTOR
Date:
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Exhibit B
LABONE, INC.
REQUEST FOR
ADVANCEMENT OF EXPENSES
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1. This Request is submitted pursuant to the Indemnification Agreement,
dated as of February 12, 1999 (the "Indemnification Agreement"), between
LabOne, Inc., a Delaware corporation (the "Company"), and the undersigned.
2. I am requesting advancement of Expenses (as defined in the Indemnification
Agreement) which I have incurred or will incur in connection with a Proceeding
(as defined in the Indemnification Agreement) for which I may be entitled to
indemnification pursuant to the Indemnification Agreement.
3. I hereby undertake to repay this advancement of Expenses if it is
ultimately determined that I am not entitled to be indemnified by the
Company under the Indemnification Agreement.
4. The Expenses for which advancement is requested are, in general, all
Expenses related to
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5. I have attached such documents relating to the matter described above as
are reasonably available to me and are reasonably necessary to determine
whether and to what extent I am entitled to advances of Expenses under the
Indemnification Agreement.
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Name: DIRECTOR
Date:
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Exhibit C
LABONE, INC.
INDEMNIFICATION CLAIM
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1. This Indemnification Claim is submitted pursuant to the Indemnification
Agreement, dated as of February 12, 1999 (the "Indemnification Agreement"),
between LabOne, Inc., a Delaware corporation (the "Company"), and the
undersigned.
2. I am requesting indemnification in connection with a Proceeding (as
defined in the Indemnification Agreement) in which I was or am involved or
am threatened to be made involved.
3. With respect to all matters related to any such Proceeding or claim, I
believe that I am entitled to be indemnified pursuant to the provisions of
the Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against liabilities which have or may arise out of
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5. To the extent known to me, the amount requested for indemnification is
as follows
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6. I have attached such documents supporting this request as are reasonably
available to me and are reasonably necessary to determine whether and to what
extent I am entitled to indemnification under the Indemnification Agreement.
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Name: DIRECTOR
Date:
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