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Exhibit 10.6
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT, dated as of ______ ___, 199_, between
Biosite Diagnostics Incorporated, a Delaware corporation (the "Corporation"),
and ______________ (the "Indemnitee"),
W I T N E S S E T H:
WHEREAS, Indemnitee is a member of the board of directors of the
Corporation (the "Board of Directors") or is an officer of the Corporation, and
in such capacity is performing a valuable service for the Corporation; and
WHEREAS, Indemnitee is willing to serve, continue to serve, and take
on additional service for or on behalf of the Corporation on the condition that
he or she be indemnified as herein provided; and
WHEREAS, it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein:
NOW THEREFORE, in consideration of the premises and the covenants in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Services by Indemnitee. Indemnitee agrees to serve as a
director or officer of the Corporation so long as he or she is duly appointed
or elected and qualified in accordance with the applicable provisions of the
Restated Certificate of Incorporation and Bylaws of the Corporation or any
subsidiary of the Corporation and until such time as he or she resigns or fails
to stand for election or is removed from his or her position. Indemnitee may
at any time and for any reason resign or be removed from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Corporation shall have no obligation under this
Agreement to continue Indemnitee in any such position.
2. Indemnification.
(a) The Corporation shall indemnify Indemnitee against Expenses
and Liabilities in connection with any Proceeding arising out of acts or
omissions of Indemnitee occurring during Indemnitee's service as a director or
as an officer of the Corporation to the fullest extent permitted by applicable
law or the Restated Certificate of Incorporation of the Corporation in effect
on the date hereof or as such law or Restated Certificate of Incorporation may
from time to time be amended (but, in the case of any such amendment, only to
the extent such amendment permits the Corporation to provide broader
indemnification
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rights than the law or Restated Certificate of Incorporation permitted the
Corporation to provide before such amendment). The right to indemnification
provided in the Restated Certificate of Incorporation shall be presumed to have
been relied upon by Indemnitee in serving or continuing to serve the
Corporation and shall be enforceable as a contract right. Without diminishing
the scope of the indemnification provided by this Section 2, the Corporation
shall indemnify Indemnitee whenever he or she is or was a party or is
threatened to be made a party to any Proceeding, including without limitation
any such Proceeding brought by or in the right of the Corporation, because he
or she is or was a director or officer of the Corporation or because of
anything done or not done by Indemnitee in such capacity, against Expenses and
Liabilities actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with such Proceeding, including the costs of any
investigation, defense, settlement or appeal, except that no indemnification
shall be made with respect to any claim, issue or matter if Indemnitee was
finally adjudged to be liable to the Corporation by a court of competent
jurisdiction due to his or her gross negligence or willful misconduct unless
and to the extent that a Delaware Court of Chancery or the court in which the
action was heard determines that Indemnitee is entitled to indemnification for
such amounts as the court deems proper. In addition to, and not as a
limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in Xxxxxxxx
0, 0, 0 xxx 00 xxxxx.
(x) Indemnitee shall be paid promptly by the Corporation all
amounts necessary to effectuate the foregoing indemnity.
3. Advancement of Expenses. All reasonable Expenses incurred by
or on behalf of Indemnitee shall be advanced from time to time by the
Corporation to Indemnitee within thirty (30) days after the Corporation's
receipt of a written request for an advance of Expenses, whether prior to or
after final disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination that Indemnitee is not entitled to be
indemnified for such Expenses), including without limitation any Proceeding
brought by or in the right of the Corporation. The written request for an
advancement of any and all Expenses under this paragraph shall contain
reasonable detail of the Expenses incurred by Indemnitee. If required by law
at the time of such advance, Indemnitee hereby agrees to repay the amounts
advanced if it is ultimately determined that Indemnitee is not entitled to be
indemnified pursuant to the terms of this Agreement.
4. Limitations. The foregoing indemnity and advancement of
Expenses shall apply only to the extent that Indemnitee has not been
indemnified and reimbursed pursuant to such insurance as the Corporation may
maintain for Indemnitee's benefit, or
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otherwise; provided, however, that notwithstanding the availability of such
other indemnification and reimbursement, Indemnitee may claim indemnification
and advancement of Expenses pursuant to this Agreement by assigning to the
Corporation, at its request, Indemnitee's claims under such insurance to the
extent Indemnitee has been paid by the Corporation.
5. Insurance and Funding. The Corporation may purchase and
maintain insurance to protect itself and/or Indemnitee against any Expenses and
Liabilities in connection with any Proceeding to the fullest extent permitted
by applicable laws. The Corporation may create a trust fund, grant an interest
or use other means (including, without limitation, a letter of credit) to
ensure the payment of such amounts as may be necessary to effect
indemnification or advancement of Expenses as provided in this Agreement.
6. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Indemnitee believes that he or she is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. Any request for
indemnification shall include sufficient documentation or information
reasonably available to Indemnitee to support his or her claim for
indemnification. Indemnitee shall submit such claim for indemnification within
a reasonable time not to exceed five years after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, final termination or other disposition or
partial disposition of any Proceeding, whichever is the later date for which
Indemnitee requests indemnification. The President or the Secretary or other
appropriate officer shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request. Determination of Indemnitee's entitlement to
indemnification shall be made not later than ninety (90) days after the
Corporation's receipt of his or her written request for such indemnification.
(b) The Indemnitee shall be entitled to select the forum in which
Indemnitee's request for indemnification will be heard, which selection shall
be included in the written request for indemnification required in Section
6(a). The forum shall be any one of the following:
(i) The stockholders of the Corporation;
(ii) A quorum of the Board of Directors consisting of
Disinterested Directors;
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(iii) Independent Legal Counsel, who shall make the
determination in a written opinion; or
(iv) A panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two
arbitrators selected. If for any reason three arbitrators are not
selected within thirty (30) days after the appointment of the first
arbitrator, then selection of additional arbitrators shall be made by
the American Arbitration Association. If any arbitrator resigns or is
unable to serve in such capacity for any reason, the American
Arbitration Association shall select such arbitrator's replacement.
The arbitration shall be conducted pursuant to the commercial
arbitration rules of the American Arbitration Association now in
effect.
If Indemnitee fails to make such designation, his or her claim shall
be determined by an appropriate court of the State of Delaware.
7. Fees and Expenses of Independent Legal Counsel. The Corporation
agrees to pay the reasonable fees and expenses of Independent Legal Counsel or
a panel of three arbitrators should such Counsel or such panel of arbitrators
be retained to make a determination of Indemnitee's entitlement to
indemnification pursuant to Section 6 of this Agreement, and to fully indemnify
such Counsel or arbitrators against any and all expenses and losses incurred by
any of them arising out of or relating to this Agreement or their engagement
pursuant hereto.
8. Remedies of Indemnitee.
(a) In the event that (i) a determination pursuant to Section 6
hereof is made that Indemnitee is not entitled to indemnification, (ii)
advances of Expenses are not made pursuant to this Agreement, (iii) payment has
not been timely made following a determination of entitlement to
indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Delaware of his or her
rights. The Corporation shall not oppose Indemnitee's right to seek any such
adjudication.
(b) In the event that a determination that Indemnitee is not
entitled to indemnification, in whole or in part, has been made pursuant to
Section 6 hereof, the decision in the judicial proceeding provided in paragraph
(a) of this Section 8 shall be made de novo and Indemnitee shall not be
prejudiced by reason of a determination that he or she is not entitled to
indemnification.
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(c) If a determination that Indemnitee is entitled to
indemnification has been made pursuant to Section 6 hereof or otherwise
pursuant to the terms of this Agreement, the Corporation shall be bound by such
determination in the absence of (i) a misrepresentation or omission of a
material fact by Indemnitee or (ii) a specific finding (which has become final)
by an appropriate court of the State of Delaware that all or any part of such
indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 8, the
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation shall stipulate in any such court that the Corporation is bound by
all the provisions of this Agreement and is precluded from making any assertion
to the contrary.
(e) Expenses reasonably incurred by Indemnitee in connection with
his or her request for indemnification under this Agreement, seeking
enforcement of this Agreement or to recover damages for breach of this
Agreement shall be borne by the Corporation.
9. Modification, Waiver, Termination and Cancellation. No
supplement, modification, termination, cancellation or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.
10. Subrogation. In the event of payment under this Agreement,
the Corporation 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 Corporation effectively to
bring suit to enforce such rights.
11. Notice by Indemnitee and Defense of Claim. Indemnitee shall
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter, whether civil, criminal, administrative or
investigative, but the omission so to notify the Corporation will not relieve
it from any liability which it may have to Indemnitee if such omission does not
prejudice the Corporation's rights. If such omission does prejudice the
Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve the Corporation
from any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any
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Proceeding as to which Indemnitee notifies the Corporation of the commencement
thereof:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) The Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee; provided, however, that the Corporation
shall not be entitled to assume the defense of any Proceeding if Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Corporation and Indemnitee with respect to such Proceeding. After
notice from the Corporation to Indemnitee of its election to assume the defense
thereof, the Corporation will not be liable to Indemnitee under this Agreement
for any Expenses subsequently incurred by Indemnitee in connection with the
defense thereof, other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ his or her own
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
shall be at the expense of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been
authorized by the Corporation;
(ii) Indemnitee shall have reasonably concluded that counsel
engaged by the Corporation may not adequately represent Indemnitee; or
(iii) The Corporation shall not in fact have employed counsel
to assume the defense in such Proceeding or shall not in fact have
assumed such defense and be acting in connection therewith with
reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; provided, however, that Indemnitee will not unreasonably
withhold his or her consent to any proposed settlement.
12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
(i) delivered by hand and receipted for by the party to whom said notice or
other communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
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(a) If to Indemnitee, to:
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(b) If to the Corporation, to:
Biosite Diagnostics Incorporated
00000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
13. Nonexclusivity. The rights of Indemnitee hereunder shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under the Delaware General Corporation Law, the
Corporation's Restated Certificate of Incorporation or Bylaws, or any
agreements, vote of stockholders, resolution of the Board of Directors or
otherwise.
14. Certain Definitions.
(a) "Disinterested Director" shall mean a director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
(b) "Expenses" shall include all direct and indirect costs
(including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
all other disbursements or out-of-pocket expenses and reasonable compensation
for time spent by Indemnitee for which he or she is otherwise not compensated
by the Corporation) actually and reasonably incurred in connection with a
Proceeding or establishing or enforcing a right to indemnification under this
Agreement, applicable law or otherwise; provided, however, that "Expenses"
shall not include any Liabilities.
(c) "Final Adverse Determination" shall mean that a determination
that Indemnitee is not entitled to indemnification shall have been made
pursuant to Section 6 hereof and either (1) a final adjudication in a Delaware
court pursuant to Section 8(a) hereof shall have denied Indemnitee's right to
indemnification hereunder, or (2) Indemnitee shall have failed to file a
complaint in a Delaware court pursuant to Section 8(a)
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for a period of one hundred twenty (120) days after the determination made
pursuant to Section 6 hereof.
(d) "Indemnification Period" shall mean the period of time during
which Indemnitee shall continue to serve as a director or as an officer of the
Corporation, and thereafter so long as Indemnitee shall be subject to any
possible Proceeding arising out of acts or omissions of Indemnitee as a
director or as an officer of the Corporation.
(e) "Independent Legal Counsel" shall mean a law firm or a member
of a law firm selected by the Corporation and approved by Indemnitee (which
approval shall not be unreasonably withheld) and that neither is presently nor
in the past five (5) years has been retained to represent: (i) the
Corporation, in any material matter, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Legal Counsel" shall not include any person
who, under the applicable standards of professional conduct then prevailing,
would have a conflict of interest in representing either the Corporation or
Indemnitee in an action to determine Indemnitee's right to indemnification
under this Agreement.
(f) "Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
proceeding.
(g) "Proceeding" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, including any appeal therefrom.
15. Binding Effect, Duration and Scope of Agreement. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns (including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Corporation),
spouses, heirs and personal and legal representatives. This Agreement shall
continue in effect during the Indemnification Period, regardless of whether
Indemnitee continues to serve as a director or as an officer.
16. Severability. If any provision or provisions of this
Agreement (or any portion thereof) shall be held to be invalid, illegal or
unenforceable for any reason whatsoever:
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(a) the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any
provision held invalid, illegal or unenforceable.
17. Governing Law and Interpretation of Agreement. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. If the laws of the
State of Delaware are hereafter amended to permit the Corporation to provide
broader indemnification rights than said laws permitted the Corporation to
provide prior to such amendment, the rights of indemnification and advancement
of expenses conferred by this Agreement shall automatically be broadened to the
fullest extent permitted by the laws of the State of Delaware, as so amended.
18. Consent to Jurisdiction. The Corporation and Indemnitee each
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.
19. Entire Agreement. This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understandings between the parties hereto with respect to the
subject matter of this Agreement, except as specifically referred to herein or
as provided in Section 13 hereof.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
BIOSITE DIAGNOSTICS INCORPORATED
By: __________________________
Its: ________________________
______________________________
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