EXHIBIT 10.1
INDEMNITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 17th day of
February, 1998, between UroCor, Inc., a Delaware corporation (the
"Corporation"), and __________________________ ("Indemnified Party").
WITNESSETH:
WHEREAS, Indemnified Party is, or is about to become, an officer or a
member of the Board of Directors of the Corporation and in such capacity is
performing a valuable service for Corporation;
WHEREAS, Indemnified Party may from time to time serve as a director,
officer, employee, agent or fiduciary of other corporations, partnerships,
joint ventures, trusts or other enterprises, entities or plans at the request
of the Corporation in order to pursue the Corporation's interests;
WHEREAS, the Bylaws (the "Bylaws") of Corporation provide for the
mandatory indemnification of the officers, directors, agents and employees of
the Corporation to the maximum extent authorized by Section 145 of the
Delaware General Corporation Statute, as amended hereafter (the "State
Statute");
WHEREAS, such Bylaws and the State Statute specifically provide that
they are not exclusive and thereby contemplate that contracts or other
arrangements not inconsistent with the State Statute may be entered into
between the Corporation and the members of its Board of Directors and its
officers with respect to indemnification of such directors and officers;
WHEREAS, in accordance with the authorization provided by the State
Statute, Corporation has purchased and will maintain a policy of Directors'
and Officers' Liability Insurance ("D&O Insurance"), covering certain
liabilities that may be incurred by its directors and officers in the
performance of their services for Corporation, possibly including certain
liabilities for which indemnification by the Corporation is not authorized or
permitted under the State Statute;
WHEREAS, uncertainties with respect to the terms and availability of D&O
Insurance and with respect to the application, amendment and enforcement of
statutory and by-law indemnification provisions make it desirable to
supplement and enhance the adequacy and reliability of the protection
afforded to directors and officers thereby; and
WHEREAS, to supplement and enhance the protection afforded Indemnified
Party and to induce Indemnified Party to continue to serve as a member of the
Board of Directors or as an officer of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with Indemnified Party,
which has been approved and adopted by the Corporation's Board of Directors;
NOW, THEREFORE, in consideration of Indemnified Party's continued
service as a director or an officer of the Corporation after the date hereof
the parties hereto agree as follows:
A. DEFINITIONS. For purposes of this Agreement:
"Litigation Costs" means costs, charges, expenses and obligations,
including, without limitation, all bonds, expenses of investigation, fees and
expenses of experts, accountants or other professionals, travel and lodging
expenses, court costs, transcript costs, duplicating costs, printing and
binding costs, telephone charges, postage, delivery fees and attorneys' fees,
retainers and expenses, reasonably incurred or contracted for in the
investigation, defense or prosecution of or other
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involvement in any Proceeding and any appeal therefrom, and all costs of
appeal, attachment, supersedes and other bonds that may be relevant to any
Proceeding.
"Losses" means the total of all amounts which Indemnified Party becomes,
or may become, legally obligated to pay in connection with any Proceeding,
including (without limitation) judgments, penalties, fines, court or
investigative costs, amounts paid in settlement, amounts lost or ordered
forfeited pursuant to injunctive sanctions, and all Litigation Costs.
"Proceeding" means any threatened, pending or completed action, suit,
arbitration, mediation, alternative dispute resolutions mechanism,
proceeding, subpoena compliance, inquiry or investigation, whether civil,
criminal, administrative or investigative (whether external and involving
outside parties or internal to the Corporation, including, but not limited
to, an action by or in the right of the Corporation and any internal
investigation conducted by the Board of Directors or any committee or other
designee thereof or any other person), and whether formal or informal.
2. INDEMNITY OF INDEMNIFIED PARTY. The Corporation hereby agrees to
indemnify Indemnified Party to the fullest extent authorized or permitted by
the provisions of the State Statute, including, but not limited to, (a) the
maximum extent permitted by the provisions of the State Statute which provide
that the State Statute is not the exclusive basis for indemnification of
directors and officers and (b) the maximum extent authorized or permitted by
any amendment thereof or other statutory provision authorizing or permitting
such indemnification which is adopted after the date hereof.
3. ADDITIONAL INDEMNITY. In addition to and not in substitution for
or diminution of the obligations of indemnification set forth in Section 2
hereof, the Corporation hereby further agrees to indemnify Indemnified Party
to the fullest extent permitted by law against any and all Litigation Costs
and Losses of Indemnified Party in connection with any Proceeding to which
Indemnified Party is, was or at any time becomes a party, or is threatened to
be made a party or otherwise becomes involved (other than as plaintiff except
where being a plaintiff or intervenor is necessary to avoid RES JUDICATA or
collateral estoppel or other estoppel or other result as to matters which may
adversely impact Indemnified Party) by reason of the fact that Indemnified
Party is, was or at any time becomes a director, officer, employee, agent or
fiduciary of the Corporation, or is or was serving or at any time serves at
the request of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise or any benefit plan related to the business and affairs of the
Corporation, and specifically including any Proceeding brought pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any other provision under the Exchange Act
and the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
4. LIMITATIONS ON INDEMNITY. No amounts of Indemnity pursuant to
Section 2 or 3 hereof shall be paid by the Corporation:
(a) except to the extent that the aggregate of Litigation Costs
and Losses in any Proceeding or group of related Proceedings to be
indemnified hereunder exceeds the amount of Litigation Costs and
Losses for which the Indemnified Party actually receives
indemnification payments or on whose behalf indemnification payments
are made pursuant to any D&O Insurance policy or from any other
source;
(b) on account of any payments required to be paid by an
Indemnified Party as a result of any Proceeding in which a final,
non-appealable judgment is rendered against Indemnified Party for an
accounting or disgorgement of profits made from the purchase or sale
by Indemnified Party of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Exchange Act;
(c) on account of Indemnified Party's conduct which is finally
adjudged in any Proceeding to have been knowingly fraudulent,
deliberately dishonest or an act or omission involving willful
misconduct; or
(d) if a final non-appealable decision by a court having
jurisdiction over the parties and the subject matter shall determine
that such indemnification is not lawful.
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5. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnified
Party is a director, officer, employee, agent or fiduciary of the Corporation
(or is or was serving at the request of the Corporation as a director,
officer, employee, agent or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise or any benefit plan related to the
business and affairs of the Corporation or of any of its affiliates,
subsidiaries, associates or other entities in which it is interested) and
shall continue thereafter so long as Indemnified Party shall be subject to
any possible Litigation Costs or Losses in any Proceeding by reason of the
fact that Indemnified Party was a director, officer, employee, agent or
fiduciary of the Corporation (or is or was serving at the request of the
Corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise or any
such benefit plan).
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Indemnified Party of notice of the commencement of any Proceeding,
Indemnified Party shall, if a claim in respect thereof is to be made against
the Corporation under this Agreement, give written notice to the Corporation
of the commencement thereof as promptly as practicable; but the omission so
to notify the Corporation will not relieve the Corporation from any liability
that it may have to Indemnified Party unless the Corporation can demonstrate
by clear and convincing evidence that it was materially prejudiced by the
failure to receive such notice. With respect to any such Proceeding as to
which Indemnified Party becomes involved:
(a) the Corporation will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, to the extent that it
may wish, the Corporation may, jointly with any other indemnifying
party, assume the defense thereof, with outside counsel that must be
reasonably satisfactory to Indemnified Party. After notice from the
Corporation to Indemnified Party of its election so to assume the
defense thereof (and consent of Indemnified Party as to the
Corporation's choice of outside counsel, which consent will not be
unreasonably withheld), the Corporation will be liable to Indemnified
Party under this Agreement for all Litigation Costs (subject to
Section 4 above and other than as provided below with respect to
attorneys' fees) incurred in connection therewith. Indemnified Party
shall have the right to employ personal counsel in such Proceeding,
but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof (and consent
of Indemnified Party as to the Corporation's choice of outside
counsel) shall be at the expense of Indemnified Party, unless (i) the
employment of counsel for Indemnified Party has been authorized by the
Corporation, (ii) Indemnified Party shall have concluded in good faith
that there may be a conflict of interest between the Corporation and
Indemnified Party in the conduct of the defense (or part of the
defense) of such action, or (iii) the Corporation in fact shall not
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense
of the Corporation. The Corporation shall not be entitled to assume
the defense of any Proceeding brought by or on behalf of the
Corporation or as to which Indemnified Party shall have made the
conclusion provided for in clause (ii) of this Section 6(b); and
(c) the Corporation shall not be liable to indemnify Indemnified
Party under this Agreement for any Losses paid in settlement of any
Proceeding or claim effected without its written consent. The
Corporation shall not settle any Proceeding or claim in any manner
that would impose any penalty, sanction or limitation on Indemnified
Party, or otherwise effectively indicate the existence of any wrongful
act by Indemnified Party, without Indemnified Party's written consent.
Neither the Corporation nor Indemnified Party shall unreasonably
withhold its consent to any proposed settlement. Without intending to
limit the circumstances in which it would be unreasonable for the
Corporation to withhold its consent to a settlement, the parties
hereto agree it would be unreasonable for the Corporation to withhold
its consent to a settlement in an amount that did not exceed, in the
business judgment of the Board of Directors of the Corporation, the
estimated amount of Litigation Costs of Indemnified Party to litigate
the Proceeding to conclusion, provided that there is no other
materially adverse consequence to the Corporation from such
settlement.
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7. NO PRESUMPTIONS. The termination of any Proceeding by judgment,
order, settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that (a) Indemnified
Party did not act in good faith, (b) with respect to any criminal action or
proceeding, Indemnified Party had reasonable cause to believe that his or her
conduct constituted a criminal violation or (c) Indemnified Party was
knowingly fraudulent, deliberately dishonest or committed an act, or made an
omission, involving willful misconduct.
8. MANDATORY ADVANCEMENT OF EXPENSES. At the request of Indemnified
Party, Litigation Costs incurred or contracted for by him or her in any
Proceeding shall be paid by the Corporation on a continuing and current
basis, in advance of the final disposition of such matter, with the
undertaking which Indemnified Party makes hereby that if it shall be
ultimately determined that Indemnified Party was not entitled to be
indemnified therefor, or was not entitled to be fully indemnified therefor,
Indemnified Party shall repay to the Corporation the amount, or appropriate
portion thereof, so advanced. Such advancement and current payment of
Litigation Costs by the Corporation shall be made promptly (but in any event
within 10 days) after receipt by the Corporation of Indemnified Party's
request therefor.
9. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified
Party will reimburse the Corporation for all Litigation Costs paid by the
Corporation in connection with any Proceeding in which Indemnified Party is
involved in the event and only to the extent that it shall be ultimately
determined by final non-appealable judgment of a court of competent
jurisdiction that Indemnified Party is not entitled to be indemnified by the
Corporation for such Litigation Costs under the provisions of the State
Statute, the Bylaws and this Agreement.
10. PROCEDURE.
(a) Indemnification hereunder shall be made promptly and in any
event within 30 days of Indemnified Party's written request therefor,
unless (i) an affirmative determination is made reasonably and within
such 30-day period by the Corporation in the manner provided in
Section 10(b) below that Indemnified Party is not entitled to
indemnity hereunder for any reason other than as contemplated by
clause (ii) of this Section 10(a), or (ii) an affirmative
determination is required by the State Statute or other applicable law
that the Indemnified Party met an applicable standard of conduct, in
which case the Corporation will cause such determination to be made
within 60 days from the date of the written request for indemnity.
(b) The determination to be made by the Corporation under
Section 10(a) above shall be based on the facts known at the time and
shall be made (i) by the Board of Directors of the Corporation, by a
majority vote of a quorum consisting of directors who are not parties
to the Proceeding ("disinterested directors"), or (ii) if such a
quorum is not obtainable, by independent legal counsel in a written
opinion, or (iii) even if such a quorum is obtainable, by independent
legal counsel in a written opinion if the Board of Directors of the
Corporation, by a majority vote of a quorum consisting of
disinterested directors, so directs, or (iv) by the stockholders of
the Corporation. Any such determination may be contested by
Indemnified Party as hereinafter contemplated.
(c) A failure to make any required determination within the
period of time specified shall be deemed to be a determination
favorable to the Indemnified Party.
11. ENFORCEMENT.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby and has obtained the approval of its Board of
Directors to induce Indemnified Party to serve or continue serving as
a director or an officer of Corporation and acknowledges that
Indemnified Party is relying upon this Agreement in agreeing to serve
or continue serving in such capacity.
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(b) In the event Indemnified Party is required to bring any
action to enforce rights or to collect moneys due under this
Agreement, the Corporation shall reimburse Indemnified Party, on a
continuing and current basis, for all of Indemnified Party's
reasonable fees and expenses in bringing and pursuing such action and
Indemnified Party shall have no obligation to reimburse the
Corporation therefor unless Indemnified Party is not successful in
such action after rendition of a final, non-appealable judgment by a
court of competent jurisdiction.
(c) The right to indemnification hereunder shall be enforceable
by Indemnified Party in any court of competent jurisdiction if
Indemnified Party's claim therefor is denied, in whole or in part, in
the manner provided herein, or if no disposition of such claim is made
within 60 days from the receipt by the Corporation of Indemnified
Party's request for indemnification hereunder.
12. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. To the extent necessary to
give effect to this Agreement, should any provision hereof be held invalid or
unenforceable, this Agreement shall be reformed in such a manner as to
provide the maximum indemnity contemplated hereby to Indemnified Party, it
being the intention of the parties hereto that this Agreement be otherwise
given its maximum effect consistent with the laws and, to the extent
applicable, public policies of the State of Delaware.
13. OBLIGATION TO AMEND. The Corporation agrees to take all actions
necessary to amend this Agreement in the future to increase or otherwise
maximize the indemnity protections intended to be afforded hereby to the
extent then permitted by law.
14. NOTICE. Any notice, request or other communication hereunder to
the Corporation or Indemnified Party shall be in writing and delivered or
sent by postage prepaid first class mail or by hand delivery or express mail
service or by facsimile transmission as follows: (a) if to the Corporation,
addressed to UroCor, Inc., 000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000, facsimile 405/290-4150, and (b) if to Indemnified Party, to the
address shown on the signature page hereof or to such other address as
Indemnified Party shall designate from time to time to the Corporation in
writing.
15. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Indemnified Party and
upon the Corporation, its successors and assigns, and shall inure to
the benefit of Indemnified Party, his or her heirs, personal
representatives and assigns and to the benefit of the Corporation, its
successors and assigns. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or any substantial part of the business or assets of
the Corporation, by agreement in form and substance satisfactory to
Indemnified Party, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had
taken place. Failure of the Corporation to obtain such agreement
prior to effectiveness of any succession shall be a breach of this
Agreement and shall entitle Indemnified Party to appropriate equitable
relief or monetary damages from the Corporation in an amount necessary
to provide Indemnified Party with the protections to which he or she
would be entitled hereunder. As used in this Agreement, the
"Corporation" shall mean the Corporation as hereinbefore defined and
any successor to its business or assets as aforesaid that executes and
delivers the agreement provided for by this Section 15(b) or that
otherwise becomes bound by all of the terms and provisions of this
Agreement by operation of law.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both
parties hereto.
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16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding between the parties relating to the subject matter hereof
and supersedes all prior agreements between the parties relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
UroCor, Inc.
By:
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Xxxxxxx X. Xxxxxxxx
President and Chief
Executive Officer
[Name of Indemnified Party]
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Address:
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Facsimile:
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SCHEDULE 10.1
INDEMNITY AGREEMENTS
CURRENT BOARD MEMBERS
Xxxx X. Xxxxx, M.D. Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx, M.D. Xxxxxxx X. Xxxxxxx
Xxxxx Xxxx, Xx. Xxxxxx X. Xxxxx
CURRENT EMPLOYEES
Xxxxxxx X. Xxxxxxxx Socrates H. Choumbakos
Xxxxxx X. Xxxxxx, Ph.D. Xxxx X. Xxxxxxxxx
Xxxxxxx X.X. Xxxxxxx Xxxx X. Xxxx
Xxxxxxx X. XxXxxxxx Xxx Xxx Xxxxxxxxxx
Xxxxxx O'Xxxx Xxxxx X. Xxxxxxx
