Exhibit 10.12
INDEMNITY AGREEMENT
This Indemnity Agreement is made this ___ day of , 200_, by
and between BioVeris Corporation, a Delaware corporation (the "Company"), and
____________, (the "Indemnitee").
WITNESSETH:
WHEREAS, the Company and the Indemnitee desire to enter into
this Agreement, which is intended to replace any indemnification agreement that
may exist between the Indemnitee and the Company.
NOW, THEREFORE, the Company and the Indemnitee for good and
valuable consideration, the receipt of which is hereby acknowledged, hereby
agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meaning as set forth below:
(a) "Claim" shall mean any threatened, pending or completed
claim, action, demand, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether formal or informal.
(b) "Damages" shall mean any losses, liabilities, damages or
any nature (including consequential, special and incidental), claims, demands,
judgments, amounts paid in settlements, fines, penalties, expenses and costs,
ERISA excise taxes. Without limiting the generality of the foregoing, Damages
shall include any and all Defense Costs.
(c) "Defense Costs" shall mean any costs, charges, bonds,
fees, expenses, including reasonable attorneys' fees and fees of experts,
consultants, witnesses and court costs, incurred in the investigation, defense
or prosecution of any Claim.
(d) "Final Adjudication" shall mean final judicial decision
in a court of competent jurisdiction from which there is no further right to
appeal.
(e) "Person" shall mean any individual, partnership, limited
partnership, corporation, company association, business trust, employee benefit
or retirement plan or trust, limited liability company, trust unincorporated
association, joint venture, enterprise of any nature (whether incorporated or
unincorporated) that is capable of suing or being sued or that is recognized or
recognizable in a court of law or equity as a "person", or any government
entity, authority or agency.
(f) "Third Party" shall mean any trustee, receiver, creditor,
contractor, vendor, insurance carrier, service provider to the Company or any
other person doing business or otherwise associated with the Company in any
capacity.
(g) "Undertaking" shall have the meaning as set forth in
Section 3.
2. Right to Indemnification. The Company shall defend, indemnify and
hold harmless the Indemnitee from and against any and all Damages asserted
against or suffered or incurred by the Indemnitee in connection with any Claim
brought by any Person, including any Third Party, in respect of, relating to,
or by reason of the fact that the Indemnitee is or was a director, officer,
manager, employee, agent or representative of the Company or is or was serving
at the request of the Company as a director, officer, manager, employee or agent
of another Person, whether the basis of such Claim is alleged action or inaction
in an official capacity as a director, officer, manager, employee, agent or
representative or in any other capacity while serving as a director, officer,
manager, employee, agent or representative, to the fullest extent permitted by
applicable law, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than permitted prior thereto),
and such indemnification shall continue after the Indemnitee has ceased to be a
director, officer, manager, employee agent or representative and shall inure to
the benefit of the Indemnitee's heirs, executors, trustees and administrators;
provided, however, that, except as provided in Section 4 hereof with respect to
proceedings to enforce rights to indemnification and advancement of Defense
Costs, the Company shall indemnify the Indemnitee in connection with any Claim
(or part thereof) initiated by the Indemnitee only if such Claim (or part
thereof) was authorized by the board of directors of the Company.
3. Right to Advancement of Defense Costs. In addition to the right to
indemnification conferred in Section 2 hereof, the Indemnitee shall have the
right to be paid by the Company, in advance of Final Adjudication, all Defense
Costs as incurred by the Indemnitee in connection with any Claim for which right
to indemnification is applicable under this Agreement. Defense Costs shall be
paid by the Company not later than twenty (20) days after receipt by the Company
of a statement of expenses from the Indemnitee requesting such payment, which
request shall be supported by a statement of costs; provided, however, that, if
the Delaware General Corporation Law requires, an advancement of Defense Costs
incurred by the Indemnitee in the Indemnitee's capacity as a director or officer
(and not in any other capacity in which service was or is rendered by the
Indemnitee, including, without limitation, as an employee, manager, agent or for
service to an employee benefit plan) shall be made only upon delivery to the
Company of an undertaking (hereinafter an "Undertaking"), by or on behalf of the
Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by Final Adjudication that the Indemnitee is not entitled to be
indemnified for such Defense Costs under this Agreement or otherwise.
4. Right of Indemnitee to Bring Suit. (a) If a claim by the Indemnitee
to the Company for indemnification under Section 2 of this Agreement is not paid
in full by the Company within thirty (30) days after a written claim has been
received by the Company, or if a claim by the Indemnitee to the Company for an
advancement of Defense Costs under Section 3 of this Agreement is not paid in
full within twenty (20) days as specified in Section 3, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claims.
(b) If the Indemnitee is successful in whole or in part in any
suit brought under Section 4(a), or in a suit brought by the Company to recover
an advancement of Defense Costs pursuant to the terms of an Undertaking, the
Indemnitee shall be entitled to be paid also all
costs and expenses (including without limitation all reasonable attorneys' fees,
court costs, witness fees) of prosecuting or defending such suit.
(c) In any suit brought by the Indemnitee to enforce a right
to indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right under Section 3 to an advancement of Defense Costs) it shall be
a defense that it has been determined by Final Adjudication that the Indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law.
(d) In any suit against the Indemnitee by the Company to
recover an advancement of Defense Costs pursuant to the terms of an Undertaking,
the Company shall be entitled to recover such Defense Costs only upon a Final
Adjudication that the Indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
(e) Neither the failure of the Company (including its
directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Company (including its directors who are not parties
to such action, a committee of such directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an advancement of Defense Costs
hereunder, or by the Company to recover an advancement of Defense Costs pursuant
to the terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such advancement of Defense Costs, under this
Agreement or otherwise, shall be on the Company by clear and convincing
evidence.
5. Settlement. The Company shall have no obligation to indemnify the
Indemnitee under this Agreement for any amounts paid in full settlement and/or
compromise of any Claim that was effected without Company's prior written
consent. The Company shall not enter into any full settlement and/or compromise
of any Claim in any manner that would impose any Damages on the Indemnitee
without the Indemnitee's written consent. Neither the Company nor the Indemnitee
shall unreasonably withhold, condition or delay their consent to any proposed
settlement or compromise. The exercise of any right of consent or withholding of
consent under this Section 5 shall not affect, excuse, modify or relieve the
Company of any of its obligations under this Agreement.
6. Maintenance of Insurance. (a) The Company hereby represents and
warrants that policies of directors' and officers' liability insurance
("D&O Insurance") have been purchased by the Company and that such policies are
in full force and effect. The Indemnitee acknowledges that he has been informed
of, and provided access to, the D&O Policies.
(b) The Company hereby covenants and agrees that, so long as
the
Indemnitee shall continue to serve as a director or officer of the Company
and thereafter so long as the Indemnitee shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that the Indemnitee was a
director or officer of the Company, the Company, subject to Section 2(d), shall
maintain in full force and effect D&O Insurance.
(c) In all policies of D&O Insurance, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee the same
rights and benefits, subject to the same limitations, as are accorded to the
Company's directors or officers most favorably insured by such policy.
(d) The Company shall have no obligation to maintain D&O
Insurance if the Company determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance is disproportionate
to the amount of coverage provided, or the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit.
7. Rights Not Exclusive. The rights provided hereunder shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under any statute, provision of Company's certificate of incorporation, bylaw,
agreement, vote of stockholders or of disinterested directors or otherwise, both
as to action in his official capacity and as to action in any other capacity,
and shall continue after the Indemnitee ceases to serve the Company as a
director, officer, employee as the case may be.
8. Severability. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act that
is in violation of applicable law, such provision shall be limited or modified
in its application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
9. Choice of Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
10. Consent to jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
11. Successor and Assigns. This Agreement shall be (i) binding upon all
successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law) and (ii) shall be binding on and inure to the benefit of the
heirs, personal representatives and estate of the Indemnitee.
12. Amendment or Waiver. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto, and no waiver of any provision hereunder
shall be effective unless in writing.
IN WITNESS WHEREOF, the Company and the Indemnitee have
executed this Agreement as of the day and year first above written.
BioVeris Corporation
By:
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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[Name]
