Exhibit 10.34
Form of Director and Executive
Officer
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this “
Agreement ”) is made and entered into this
day of June, 2009, by and between
MYRIAD GENETICS, INC. , a Delaware corporation (the “
Corporation ”), and
(“
Agent ”).
RECITALS
WHEREAS , Agent performs a valuable service to the
Corporation in his capacity as [a director and/or an officer] of
the Corporation;
WHEREAS , the Corporation has adopted provisions
providing for indemnification of directors and officers in its
Certificate of Incorporation (the “ Charter
”) and Bylaws (the “ Bylaws ”) that
include provisions providing for the indemnification of the
directors, officers, employees and other agents of the Corporation,
including persons serving at the request of the Corporation in such
capacities with other corporations or enterprises, as authorized by
the Delaware General Corporation Law, as amended (the “
DGCL ”);
WHEREAS , the Charter, the Bylaws and the DGCL, by their
non-exclusive nature, permit contracts between the Corporation and
its directors, officers, employees and other agents with respect to
indemnification of such persons;
WHEREAS , in recognition of Agent’s need for
(a) substantial protection against personal liability based on
Agent’s reliance on the Charter and the Bylaws, and
(b) specific contractual assurance that the protection
provided in the Charter and the Bylaws will be available to Agent
(regardless of, among other things, any amendment to or revocation
of the Charter and/or the Bylaws, any change in the composition of
the Corporation’s board of directors or a change in control
of the Corporation); and
WHEREAS , in order to induce Agent to [continue to]
serve as [a director/an officer] of the Corporation, the
Corporation has determined and agreed to enter into this Agreement
with Agent.
NOW, THEREFORE
, in consideration of Agent’s
service as [a director and/or an officer] of the Corporation
following the date hereof, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and Agent hereby agree as
follows:
1. Services to the
Corporation . Agent will
serve, at the will of the Corporation or under separate contract,
if any such contract exists, as [a director/an officer] of the
Corporation or as a director, officer or other fiduciary of an
affiliate of the Corporation (including any employee benefit plan
of the Corporation) faithfully and to the best of his ability so
long as he [is duly elected and qualified in accordance with the
provisions of the Bylaws or other applicable charter documents/is a
duly appointed officer] of the Corporation or such affiliate;
provided , however , that Agent may at any time and
for any reason resign from such position (subject to any
contractual obligation that Agent may have assumed apart from this
Agreement) and that the Corporation or any affiliate shall have no
obligation under this Agreement to continue Agent in any such
position.
2. Indemnity of Agent
. The Corporation agrees to hold
harmless and indemnify Agent to the fullest extent authorized or
permitted by the provisions of the Charter, the Bylaws and the
DGCL, as the same may be amended from time to time (but, only to
the extent that such amendment permits the Corporation to provide
broader indemnification rights than the Charter, the Bylaws or the
DGCL permitted prior to adoption of such amendment).
3. Additional
Indemnity . In addition
to and not in limitation of the indemnification otherwise provided
for herein, and subject only to the exclusions set forth in
Section 4 hereof, the Corporation further agrees to hold
harmless and indemnify Agent:
(a) against any and all expenses (including
attorneys’ fees), witness fees, damages, judgments, fines and
amounts paid in settlement and any other amounts that Agent becomes
legally obligated to pay (including any federal, state or local
taxes imposed on Agent as a result of receipt of reimbursements or
advances of expenses under this Agreement) because of any claim or
claims made against or by him in connection with any threatened,
pending or completed action, suit or proceeding, including any
appeal and the premium, security for, and other costs relating to
any costs bond, supersedes bond, or other appeal bond or its
equivalent, whether civil, criminal, arbitrational, administrative
or investigative, whether formal or informal (including an action
by or in the right of the Corporation), to which Agent is, was or
at any time becomes a party or a witness, or is threatened to be
made a party or a witness, by reason of the fact that Agent is, was
or at any time becomes a director, officer, employee or other agent
of the Corporation, or is or was serving or at any time serves at
the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be
provided to Agent by the Corporation under the non-exclusivity
provisions of the DGCL, the Charter and the Bylaws.
4. Limitations on Additional
Indemnity . No indemnity
pursuant to Section 3 hereof shall be paid by the
Corporation:
(a) on account of any claim or proceeding against
Agent for an accounting of profits made from the purchase or sale
by Agent of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of
1934, as heretofore or hereafter amended (the “
Exchange Act ”), or similar provisions of any
federal, state or local law, provided, however , if and when
Agent ultimately establishes in any such proceeding that no
recovery of profits from Agent is permitted under
Section 16(b) of the Exchange Act or such similar provision of
any similar federal, state or local law, then, notwithstanding
anything to the contrary provided in this Section 4(a),
indemnification pursuant to this Agreement shall then be
permitted;
(b) on account of Agent’s conduct that is
established by a final judgment as knowingly fraudulent or
deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent’s conduct that is
established by a final judgment as constituting a breach of
Agent’s duty of loyalty to the Corporation or resulting in
any personal profit or advantage to which Agent was not legally
entitled;
(d) for which payment is actually made to Agent
under a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, bylaw or agreement, except in respect
of any excess beyond payment under such insurance, clause, bylaw or
agreement;
2
(e) if indemnification is not lawful (and, in this
respect, both the Corporation and Agent have been advised that the
Securities and Exchange Commission believes that indemnification
for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable and that
claims for indemnification should be submitted to appropriate
courts for adjudication); or
(f) in connection with any proceeding (or part
thereof) initiated by Agent, or any proceeding by Agent against the
Corporation or its directors, officers, employees or other agents,
unless (i) such indemnification is expressly required to be
made by law, (ii) the proceeding was authorized by the board
of directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to
the powers vested in the Corporation under the DGCL, or
(iv) the proceeding is initiated pursuant to Section 11
hereof.
5. Continuation of
Indemnity . All
agreements and obligations of the Corporation contained herein
shall continue during the period Agent is a director, officer,
employee or other agent of the Corporation (or is or was serving at
the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise) and shall
continue thereafter so long as Agent shall be subject to any
possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative
or investigative, by reason of the fact that Agent was serving in
the capacity referred to herein.
6. Partial
Indemnification .
Ag
