INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement"), made as of this _____ day of
_____, 2004 by and between Calypte Biomedical Corporation, a Delaware
corporation (the "Company"), and [NAME OF INDIVIDUAL] (the "Indemnitee"), a
director [and] [officer] of the Company.
WHEREAS, the Indemnitee is currently serving [has agreed to serve] as a
[director] [and] [officer] of the Company and in such capacity has rendered
[will render] valuable services to the Company;
WHEREAS, the Company has investigated the availability and sufficiency of
directors' and officers' liability insurance and Delaware statutory
indemnification provisions to provide its directors and officers with adequate
protection against various legal risks and potential liabilities to which such
individuals are subject due to their positions with the Company and the Company
has concluded that such insurance and statutory provisions may provide
inadequate and unacceptable protection to certain individuals requested to serve
as its directors and officers; and
WHEREAS, in order to induce and encourage highly experienced and capable
persons such as the Indemnitee [to continue] to serve as [directors] [and]
[officers] of the Company, the Board of Directors has determined, after due
consideration and investigation of the terms and provisions of this Agreement
and the various other alternatives available to the Company and the Indemnitee
in lieu hereof, that this Agreement is not only reasonable and prudent, but
necessary to promote and ensure the best interests of the Company and its
stockholders;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, and other good and valuable consideration, including,
without limitation, the [continued] service of the Indemnitee, the receipt of
which hereby is acknowledged, and in order to induce the Indemnitee [to
continue] to serve as a [director] [and] [officer] of the Company, the Company
and the Indemnitee hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) "Change in Control" shall mean a change in control of the Company
of a nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar or successor schedule or form) promulgated under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Act"), whether or not the Company is then subject to such
reporting requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred (irrespective of the
applicability of the initial clause of this definition) if (i) any individual or
entity or any group or person (as such terms are used in Sections 13(d) and
14(d) of the Act, but excluding any trustee or other fiduciary holding
securities pursuant to an employee benefit or welfare plan or employee stock
plan of the Company or any subsidiary of the Company, or any entity organized,
appointed, established or
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holding securities of the Company with voting power for or pursuant to the terms
of any such plan) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 40% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of the
Continuing Directors (as defined below) in office immediately prior to such
person's attaining such interest; (ii) the Company is not the continuing or
surviving corporation of a merger or consolidation of the Company or pursuant to
which shares of the Company's voting stock would converted into cash, securities
or other property, other than a merger of the Company in which the holders of
such stock immediately prior to the merger have the same proportionate ownership
of such stock of the surviving corporation immediately after such merger; (iii)
the Company sells, leases, exchanges or otherwise disposes of all or
substantially all of its assets or liquidates or dissolves, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (including for this purpose
any new director whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) (such
directors being referred to herein as "Continuing Directors") cease for any
reason to constitute at least a majority of the Board of Directors of the
Company.
(b) "Disinterested Director" with respect to any request by the
Indemnitee for indemnification or advancement of expenses hereunder shall mean a
director of the Company who neither is nor was a party to the Proceeding (as
defined below) in respect of which indemnification or advancement is being
sought by the Indemnitee.
(c) The term "Expenses" shall mean, without limitation, expenses of
Proceedings, including attorneys' fees, disbursements and retainers, accounting
and witness fees, expenses related to the preparation or service as a witness,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, amounts paid in settlement of a
Proceeding by or on behalf of the Indemnitee, costs of attachment or similar
bonds, any expenses of attempting to establish or establishing a right to
indemnification or advancement of expenses, under this Agreement, the Company's
Certificate of Incorporation or Bylaws, applicable law or otherwise, and
reasonable compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or action for indemnification
for which the Indemnitee is not otherwise compensated by the Company or any
third party. The term "Expenses" shall not include the amount of judgments,
fines, interest or penalties, or excise taxes assessed with respect to any
employee benefit or welfare plan, which are actually levied against or sustained
by the Indemnitee to the extent sustained after final adjudication.
(d) The term "Independent Legal Counsel" shall mean any firm of
attorneys selected by lot from a list consisting of firms which meet minimum
size criteria and other reasonable criteria established by the Board of
Directors of the Company, so long as such firm has not represented the Company,
the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to
the Company, within the preceding five years. Notwithstanding the foregoing, the
term "Independent Legal Counsel" shall not include any person who, under
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or the Indemnitee in an
action to determine the Indemnitee's
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right to indemnification or advancement of expenses under this Agreement, the
Company's Certificate of Incorporation or Bylaws, applicable law or otherwise.
(e) The term "Proceeding" shall mean any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution mechanism, or
any other proceeding (including, without limitation, an appeal therefrom),
formal or informal, whether brought in the name of the Company or otherwise,
whether of a civil, criminal, administrative or investigative nature, and
whether by, in or involving a court or an administrative, other governmental or
private entity or body (including, without limitation, an investigation by the
Company or its Board of Directors), by reason of (i) the fact that the
Indemnitee is or was a [director] [or] [officer] of the Company, or is or was
serving at the request of the Company as an agent of another enterprise, whether
or not the Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement is to be provided
under this Agreement, (ii) any actual or alleged act or omission or neglect or
breach of duty, including, without limitation, any actual or alleged error or
misstatement or misleading statement, which the Indemnitee commits or suffers
while acting in any such capacity, or (iii) the Indemnitee attempting to
establish or establishing a right to indemnification or advancement of expenses
pursuant to this Agreement, the Company's Certificate of Incorporation or
Bylaws, applicable law or otherwise.
(f) The phrase "serving at the request of the Company as an agent of
another enterprise" or any similar terminology shall mean, unless the context
otherwise requires, (i) serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
limited liability company, trust, employee benefit or welfare plan or other
enterprise, foreign or domestic, and (ii) serving as a director, officer,
employee or agent of a corporation which was a predecessor corporation of the
Company or of another enterprise at the request of such predecessor corporation.
The phrase "serving at the request of the Company" shall include, without
limitation, any service as a [director] [or] [officer] of the Company which
imposes duties on, or involves services by, such [director] [or] [officer] with
respect to the Company or any of the Company's subsidiaries, affiliates,
employee benefit or welfare plans, such plan's participants or beneficiaries or
any other enterprise, foreign or domestic. In the event that the Indemnitee
shall be a director, officer, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust, employee benefit
or welfare plan or other enterprise, foreign or domestic, 40% or more of the
common stock, combined voting power or total equity interest of which is owned
by the Company or any subsidiary or affiliate thereof, then it shall be presumed
conclusively that the Indemnitee is so acting at the request of the Company.
2. Services by the Indemnitee. The Indemnitee agrees [to continue] to
serve as a [director] [and] [officer] of the Company [at the will of the
Company] [under the terms of the Indemnitee's agreement with the Company] for so
long as the Indemnitee is duly elected and qualified, appointed or until such
time as the Indemnitee tenders a resignation in writing or is removed as a
[director] [or] [officer]; provided, however, that the Indemnitee may at any
time and for any reason resign from [either or both of] such position[s]
(subject to any other contractual obligation or other obligation imposed by
operation of law).
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3. Proceeding Other Than a Proceeding By or In the Right of the Company.
The Company shall indemnify the Indemnitee if the Indemnitee is a party to or
threatened to be made a party to or is otherwise involved in any Proceeding
(other than a 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]
[or] [officer] of the Company, or is or was serving at the request of the
Company as an agent of another enterprise, against all Expenses, judgments,
fines, interest or penalties, and excise taxes assessed with respect to any
employee benefit or welfare plan, which are actually and reasonably incurred by
the Indemnitee in connection with such a Proceeding, to the fullest extent
permitted by applicable law; provided, however, that any settlement of a
Proceeding must be approved in advance in writing by the Company.
4. Proceedings By or In the Right of the Company. The Company shall
indemnify the Indemnitee if the Indemnitee is a party to or threatened to be
made a party to or is otherwise involved in 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] [or] [officer] of the Company, or is or was
serving at the request of the Company as an agent of another enterprise, against
all Expenses, judgments, fines, interest or penalties, and excise taxes assessed
with respect to any employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in connection with the defense or
settlement of such a Proceeding, to the fullest extent permitted by applicable
law.
5. Indemnification for Costs, Charges and Expenses of Witness or
Successful Party. Notwithstanding any other provision of this Agreement (except
as set forth in subparagraph 9(a) hereof), and without a requirement for
determination as required by Paragraph 8 hereof, to the extent that the
Indemnitee (a) has prepared to serve or has served as a witness in any
Proceeding in any way relating to (i) the Company or any of the Company's
subsidiaries, affiliates, employee benefit or welfare plans, such plan's
participants or beneficiaries or any other enterprise, foreign or domestic, or
(ii) anything done or not done by the Indemnitee as a [director] [or] [officer]
of the Company, as a director, officer, employee or agent of another
corporation, partnership, joint venture, limited liability company, trust,
employee benefit or welfare plan or other enterprise, foreign or domestic, or as
a director, officer, employee or agent of a corporation which was a predecessor
corporation of the Company or of another enterprise, at the request of such
predecessor corporation, or (b) has been successful in defense of any Proceeding
or in defense of any claim, issue or matter therein, on the merits or otherwise,
including the dismissal of a Proceeding without prejudice or the settlement of a
Proceeding without an admission of liability, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith to the fullest extent permitted by applicable
law.
6. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
the Expenses, judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding, but not, however, for the total amount of the
Indemnitee's Expenses, judgments, fines, interest or penalties, or excise taxes
assessed with respect to any employee benefit or welfare plan, then the Company
shall nevertheless indemnify
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the Indemnitee for the portion of such Expenses, judgments, fines, interest
penalties or excise taxes to which the Indemnitee is entitled.
7. Advancement of Expenses. The Expenses incurred by the Indemnitee in
any Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by applicable law; provided, however, that the
Indemnitee shall set forth in such request reasonable evidence that such
Expenses have been incurred by the Indemnitee in connection with such
Proceeding, a statement that such Expenses do not relate to any matter described
in subparagraph 9(a) of this Agreement, and an undertaking in writing to repay
any advances if it is ultimately determined as provided in subparagraph 8(b) of
this Agreement that the Indemnitee is not entitled to indemnification under this
Agreement.
8. Indemnification Procedure; Determination of Right to Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee shall, if a claim for
indemnification or advancement of Expenses in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof in writing. Such notice shall be given to the secretary of the Company,
who shall promptly advise the Board of Directors of the Company of such
notification. The omission by the Indemnitee to so notify the Company will not
relieve the Company from any liability which the Company may have to the
Indemnitee under this Agreement, unless the Company shall have lost significant
substantive or procedural rights with respect to the defense of any Proceeding
as a result of such omission to so notify.
(b) The Indemnitee shall be conclusively presumed to have met the
relevant standards of conduct, if any, as defined by applicable law, for
indemnification pursuant to this Agreement and shall be absolutely entitled to
such indemnification, unless a determination by clear and convincing evidence is
made that the Indemnitee has not met such standards by (i) the Board of
Directors by a majority vote of the Disinterested Directors (whether or not they
constitute a quorum of the Board of Directors), (ii) the stockholders of the
Company by majority vote of a quorum thereof consisting of stockholders who are
not parties to the Proceeding due to which a claim for indemnification is made
under this Agreement, (iii) Independent Legal Counsel as set forth in a written
opinion (it being understood that such Independent Legal Counsel shall make such
determination only if there are no Disinterested Directors or if a majority the
Disinterested Directors so directs and that such Independent Legal Counsel shall
be selected by the Board of Directors and shall be reasonably acceptable to the
Indemnitee), or (iv) a court of competent jurisdiction; provided, however, that
if a Change of Control shall have occurred and the Indemnitee so requests in
writing, such determination shall be made only by Independent Legal Counsel or a
court of competent jurisdiction, as requested by the Indemnitee (it being
understood that in such event the Indemnitee shall select the court or any
Independent Legal Counsel).
(c) If either a claim for (x) advancement of Expenses under this
Agreement is not paid by the Company within 20 days after receipt by the Company
of written notice thereof (together with the undertaking required by Paragraph 7
hereof) or (y) indemnification under this Agreement is not paid by the Company
within 60 days after receipt by
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the Company of written notice thereof, regardless of the reasons for such
failure, then the Indemnitee shall be deemed to be, and shall be, entitled to
such advancement or indemnification, unless (A) the Indemnitee misrepresented or
failed to disclose a material fact in making the request for advancement or
indemnification or in any supporting documentation or (B) such advancement or
indemnification is prohibited by law. In such event, or in the event that a
determination is made that the Indemnitee is not entitled to such advancement or
indemnification, then the rights provided by this Agreement shall be enforceable
by the Indemnitee, at his [her] sole election, in any court of competent
jurisdiction or an arbitration to be conducted by a single arbitrator pursuant
to the Rules of the American Arbitration Association. Such judicial proceeding
or arbitration shall be made de novo. The burden of proving by clear and
convincing evidence that advances or indemnification are not permitted under
this Agreement shall be on the Company. Neither the failure of the directors or
stockholders of the Company or Independent Legal Counsel to have made a
determination prior to the commencement of such action that indemnification or
advancement of Expenses is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct, if any, nor 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 be a
defense to an action or arbitration by the Indemnitee or create a presumption
for the purpose of such an action or arbitration that the Indemnitee has not met
the applicable standard of conduct or that the Indemnitee otherwise is not
entitled to such advancement or indemnification. The termination of any
Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself (i) create a presumption that
the Indemnitee did not act in good faith and in a manner which he [she]
reasonably believed to be in the best interests of the Company and/or its
stockholders, and, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that his [her] conduct was unlawful or (ii)
otherwise adversely affect the rights of the Indemnitee to indemnification or
advancement of Expenses under this Agreement, except as may be provided herein.
The Company shall be precluded from asserting in any judicial proceeding or
arbitration that the provisions, procedures and presumptions of this Agreement
are not legal, valid, binding and enforceable and shall stipulate therein that
the Company is bound by all the provisions, procedures and presumptions of this
Agreement.
(d) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning the Indemnitee's right to indemnification or advancement
of Expenses in whole or in part pursuant to this Agreement shall also be
indemnified by the Company, regardless of the outcome of such a Proceeding, to
the fullest extent permitted by applicable law, the Company's Certificate of
Incorporation, as amended, and the Company's Bylaws, as amended. In any event,
if a court of competent jurisdiction or an arbitrator shall determine that the
Indemnitee is entitled to an advancement of Expenses or indemnification
hereunder, in whole or in part, the Company shall pay promptly all Expenses
actually and reasonably incurred by the Indemnitee in connection with such
adjudication (including, but not limited to, any appellate proceedings).
(e) With respect to any Proceeding for which indemnification or
advancement of Expenses is requested, the Company will be entitled to
participate therein at its own expense and, except as otherwise provided below,
to the extent that it may wish, the Company may assume the defense thereof, with
counsel reasonably satisfactory to the
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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 under this Agreement for any Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other than as provided below.
The Company shall not settle any Proceeding in any manner which would impose any
penalty or limitation on the Indemnitee without the Indemnitee's written
consent. The Indemnitee shall have the right to employ his [her] 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. The Company shall not be
entitled to assume the defense of any Proceeding brought by or on behalf of the
Company or as to which the Indemnitee has concluded that there may be a conflict
of interest between the Company and the Indemnitee.
9. Limitations on Indemnification. 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 (i) 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 under this Agreement or any
other statute or law or otherwise as required under applicable law or (ii)
Expenses incurred by the Indemnitee in connection with preparing to serve or
serving, prior to a Change in Control, as a witness in cooperation with any
party or entity who or which has threatened or commenced any action or
proceeding against the Company, or any director, officer, employee, trustee,
agent, representative, subsidiary, parent corporation or affiliate of the
Company, but such indemnification or advancement of Expenses in each such case
may be provided by the Company if the Board of Directors finds it to be
appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, and sustained in any Proceeding for which payment is
actually made to the Indemnitee under a valid and collectible insurance policy,
except in respect of any excess beyond the amount of payment under such
insurance;
(c) To indemnify the Indemnitee for any Expenses, judgments, fines,
expenses or penalties sustained in any Proceeding for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Act or similar provisions of
any federal, state or local statute or regulation;
(d) To indemnify the Indemnitee for any Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement;
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(e) To indemnify the Indemnitee for any Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, on account of the Indemnitee's conduct if such conduct
shall be finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct, including, without limitation, breach of the
duty of loyalty; or
(f) If a court of competent jurisdiction finally determines that any
indemnification hereunder is unlawful.
10. Continuation of Indemnification. All agreements and obligations of the
Company contained herein shall continue during the period that the Indemnitee is
a [director] [or] [officer] of the Company (or is or was serving at the request
of the Company as an agent of another enterprise, foreign or domestic) and shall
continue thereafter so long as the Indemnitee shall be subject to any possible
Proceeding by reason of the fact that the Indemnitee was a [director] [or]
[officer] of the Company or serving in any other capacity referred to in this
Paragraph 10.
11. Indemnification Hereunder Not Exclusive. The indemnification provided
by this Agreement shall not be deemed to be exclusive of any other rights to
which the Indemnitee may be entitled under the Company's Certificate of
Incorporation, as amended, the Company's Bylaws, as amended, any agreement, vote
of stockholders or vote of Disinterested Directors, provisions of applicable
law, or otherwise, both as to action or omission in the Indemnitee's official
capacity and as to action or omission in another capacity on behalf of the
Company while holding such office.
12. 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.
13. Successors and Assigns.
(a) This Agreement shall be binding upon, and shall inure to the
benefit of, the Indemnitee and the Indemnitee's heirs, executors, administrators
and assigns, whether or not the Indemnitee has ceased to be a [director]
[and/or] [officer], and the Company and its successors and assigns. Upon the
sale of all or substantially all of the business, assets or capital stock of the
Company to, or upon the merger of the Company into or with, any corporation,
partnership, joint venture, trust or other person, this Agreement shall inure to
the benefit of and be binding upon both the Indemnitee and such purchaser or
successor person. Subject to the foregoing, this Agreement may not be assigned
by either party without the prior written consent of the other party hereto.
(b) If the Indemnitee is deceased and is entitled to indemnification
under any provision of this Agreement, the Company shall indemnify the
Indemnitee's estate and the Indemnitee's spouse, heirs, executors,
administrators and assigns against, and the Company shall, and does hereby agree
to assume, any and all Expenses actually and reasonably incurred by or for the
Indemnitee or the Indemnitee's estate, in connection with the investigation,
defense,
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appeal or settlement of any Proceeding. Further, when requested in writing by
the spouse of the Indemnitee, and/or the Indemnitee's heirs, executors,
administrators and assigns, the Company shall provide appropriate evidence of
the Company's agreement set out herein to indemnify the Indemnitee against and
to itself assume such Expenses.
14. 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 the Indemnitee, who shall execute all documents required and shall
do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
15. Severability. Each and every paragraph, sentence, term and provision
of this Agreement is separate and distinct so that if any paragraph, sentence,
term or provision thereof shall be held to be invalid, unlawful or unenforceable
for any reason, such invalidity, unlawfulness or unenforceability shall not
affect the validity, unlawfulness or enforceability of any other paragraph,
sentence, term or provision hereof. To the extent required, any paragraph,
sentence, term or 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 applicable law.
16. Savings Clause. If this Agreement or any paragraph, sentence, term or
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, interest or penalties, or excise taxes assessed with
respect to any employee benefit or welfare plan, which are incurred with respect
to any Proceeding to the fullest extent permitted by any (a) applicable
paragraph, sentence, term or provision of this Agreement that has not been
invalidated or (b) applicable provision of Delaware law.
17. Interpretation; Governing Law. This Agreement shall be construed as a
whole and in accordance with its fair meaning. Headings are for convenience only
and shall not be used in construing meaning. This Agreement shall be governed
and interpreted in accordance with the laws of the State of Delaware without
regard to the conflict of laws principles thereof.
18. Amendments. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
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 directors' and officers'
liability insurance policies, of the Company.
19. Notices. Any notice required to be given under this Agreement shall be
directed to Calypte Biomedical Corporation, 0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: ________________, and to the Indemnitee at
_________________- or to such other address as either shall designate to the
other in writing.
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
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------------------------------
Name:
CALYPTE BIOMEDICAL CORPORATION.
By:
---------------------------
Name:
Title:
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