EXHIBIT 10.12
INDEMNITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the ______ day of
________, ____, 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:
1. 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 involvement in any
Proceeding and any appeal therefrom, and all costs of appeal, attachment,
supersedeas 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.
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.
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.
(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., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile 405/290-4059, 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.
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:_________________________________________
Name
Title
[Name of Indemnified Party]
-------------------------------------------
Name of Indemnified
Address: Address
Address
Facsimile: Fax Number
SCHEDULE 10.1
INDEMNITY AGREEMENTS
CURRENT BOARD MEMBERS
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CURRENT EMPLOYEES
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