Exhibit 10.3


INDEMNIFICATION AGREEMENT


 


This Indemnification Agreement (“Agreement”) is made as of                
by and between Expression Diagnostics, Inc., a Delaware corporation (the “Company”)
and                  
(“Indemnitee”).


 


RECITALS


 


                WHEREAS, the
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company;


 


                WHEREAS, in order
to induce Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and advancement of
expenses to, Indemnitee to the maximum extent permitted by law;


 


                WHEREAS, the
Certificate of Incorporation of the Company (the “Charter”) requires
indemnification of the officers and directors of the Company, and Indemnitee
may also be entitled to indemnification pursuant to the General Corporation Law
of the State of Delaware (the “DGCL”);


 


                WHEREAS, the DGCL
expressly provides that the indemnification provisions set forth therein are
not exclusive, and thereby contemplates that contracts may be entered into
between the Company and members of the board of directors, officers and other
persons with respect to indemnification;


 


                WHEREAS, the
Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees, agents and
fiduciaries, the significant and continual increases in the cost of such
insurance and the general trend of insurance companies to reduce the scope of
coverage of such insurance;


 


                WHEREAS, the
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the availability
and scope of coverage of liability insurance provide increasing challenges for
the Company;


 


                WHEREAS,
Indemnitee does not regard the protection currently provided by applicable law,
the Company’s governing documents and available insurance as adequate under the
present circumstances, and the Indemnitee and certain other directors,
officers, employees, agents and fiduciaries of the Company may not be willing
to continue to serve in such capacities without additional protection;


 


                WHEREAS, the Board
of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining highly qualified persons such
as Indemnitee is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;


 


 

















 


                WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law so that they will serve or continue
to serve the Company free from undue concern that they will not be so
indemnified; and


 


                WHEREAS, this
Agreement is a supplement to and in furtherance of the indemnification provided
in the Charter and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.


 


                NOW, THEREFORE, in
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:


 


Section 1.  Services to the Company.  Indemnitee agrees to serve as a director of
the Company.  Indemnitee may at any time
and for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in
such position.  This Agreement shall not
be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. 
The foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve as a director of the Company.


 


Section 2.  Definitions.


 


                As used in this
Agreement:


 


(a)           “Corporate Status”
describes the status of a person who is or was a director, officer, employee or
agent of the Company or of any other corporation, partnership or joint venture,
trust, employee benefit plan or other enterprise which such person is or was
serving at the request of the Company.


 


(b)           “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, agent
or fiduciary.


 


(c)           “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding.  Expenses
also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedes bond, or other appeal
bond or its equivalent.  Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.


 


(d)           “Independent
Counsel” means a law firm, or a partner (or, if applicable, member) of such
a law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i) the
Company or Indemnitee in any


 


2

















 


matter material to
either such party (other than with respect to matters concerning the Indemnitee
under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.  Notwithstanding
the foregoing, the term “Independent 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 Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.  The Company agrees to pay the reasonable fees
and expenses of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


(e)           The term “Proceeding”
shall include any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought in the
right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of the fact that Indemnitee is or
was a director of the Company, by reason of any action taken by him or of any
action on his part while acting as director of the Company, or by reason of the
fact that he is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, in each case whether or not
serving in such capacity at the time any liability or expense is incurred for
which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement; provided, however, that the term “Proceeding”
shall not include any action, suit or arbitration initiated by Indemnitee to
enforce Indemnitee’s rights under this Agreement.


 


Section 3.  Indemnity in Third-Party Proceedings.  The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding, other
than a Proceeding by or in the right of the Company to procure a judgment in
its favor.  Pursuant to this Section 3,
Indemnitee shall be indemnified against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on
his behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, in
the case of a criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful.  Indemnitee shall
not enter into any settlement in connection with a Proceeding without ten (10) days
prior notice to the Company.


 


Section 4.  Indemnity in Proceedings by or in the
Right of the Company.  The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is, or is threatened to be made, a party to or a participant in
any Proceeding by or in the right of the Company to procure a judgment in its
favor.  Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.  No indemnification for
Expenses shall be made under this Section 4 in respect of any claim, issue
or matter as to which Indemnitee shall have been finally adjudged by a court to
be


 


3

















 


liable to the Company, unless and only to the
extent that the Delaware Court of Chancery (the “Delaware Court”) or any
court in which the Proceeding was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such expenses as the Delaware Court or such other court
shall deem proper.


 


Section 5.  Indemnification for Expenses of a Party
Who is Wholly or Partly Successful.  Notwithstanding
any other provisions of this Agreement, to the extent that Indemnitee is a
party to or a participant in and is successful, on the merits or otherwise, in
any Proceeding or in defense of any claim, issue or matter therein, in whole or
in part, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him in connection therewith.  If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against (a) all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter and (b) any claim, issue or
matter related to any such successfully resolved claim, issue or matter.  For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.


 


Section 6.  Indemnification For Expenses of a Witness.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a witness in any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.


 


Section 7.  Additional Indemnification.


 


(a)           Notwithstanding any
limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee to
the fullest extent permitted by law if Indemnitee is a party to or is
threatened to be made a party to any Proceeding (including a Proceeding by or
in the right of the Company to procure a judgment in its favor) against all
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the Proceeding.


 


(b)           For purposes of Section 7(a),
the meaning of the phrase “to the fullest extent permitted by law” shall include,
but not be limited to:


 


(i)            to the fullest
extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL or such provision thereof; and


 


(ii)           to the fullest
extent authorized or permitted by any amendments to or replacements of the DGCL
adopted after the date of this Agreement that increase the extent to which a
corporation may indemnify its officers and directors.


 


4

















 


Section 8.  Exclusions.  Notwithstanding any provision in this
Agreement to the contrary, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:


 


(a)           for which payment
has actually been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision;


 


(b)           for an accounting of
profits made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law;


 


(c)           to indemnify or
advance Expenses to Indemnitee with respect to claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except (i) with
respect to actions or proceedings brought to establish or enforce a right to
receive Expenses or indemnification under this Agreement or any other agreement
or insurance policy or under the Company’s Certificate of Incorporation or
bylaws now or hereafter in effect relating to indemnification, (ii) in
specific cases if the Board of Directors has approved the initiation or
bringing of such claim, or (iii) as otherwise required under Delaware law;
or


 


(d)           for which payment is
prohibited by applicable law.


 


Section 9.  Advances of Expenses.  The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made within thirty (30) days after
the receipt by the Company of a statement or statements requesting such
advances (which shall include invoices received by Indemnitee in connection
with such Expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditures made that
would cause Indemnitee to waive any privilege accorded by applicable law shall
not be included with the invoice) from time to time, whether prior to or after
final disposition of any Proceeding.  Advances
shall be unsecured and interest free.  Advances
shall be made without regard to Indemnitee’s ability to repay the expenses and
without regard to Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement.  Advances
shall include any and all reasonable Expenses incurred pursuing an action to
enforce this right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claimed.  The Indemnitee shall qualify for advances
upon the execution and delivery to the Company of this Agreement which shall
constitute an undertaking providing that the Indemnitee undertakes to the
fullest extent permitted by law to repay the advance if and to the extent that
it is ultimately determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, that Indemnitee is not entitled to be
indemnified by the Company.  This Section 9
shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 8.  The right to
advances under this paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein.


 


5

















 


Section 10.  Procedure for Notification and Defense of
Claim.


 


(a)           To obtain
indemnification under this Agreement, Indemnitee shall submit to the Company a
written request therefor.


 


(b)           The Company will be
entitled to participate in the Proceeding at its own expense.


 


Section 11.  Procedure Upon Application for
Indemnification.


 


(a)           Upon written request
by Indemnitee for indemnification pursuant to Section 10(a), a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by Independent Counsel
in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days
after such determination. Indemnitee shall cooperate with the Independent
Counsel making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such counsel upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. 
Any costs or expenses (including attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the Independent Counsel shall be
borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.


 


(b)           The Independent
Counsel shall be selected by Indemnitee.  The Company may, within ten (10) days
after written notice of such selection, deliver to the Indemnitee a written
objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in Section 2
of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion.  Absent
a proper and timely objection, the person so selected shall act as Independent
Counsel.  If such written objection is so
made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit.  If, within twenty (20) days after the later
of submission by Indemnitee of a written request for indemnification pursuant
to Section 10(a) hereof, and the final disposition of the Proceeding,
including any appeal therein, no Independent Counsel shall have been selected
and not objected to, the Indemnitee may petition a court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company to the selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person
as the court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent
Counsel under Section 11(a) hereof. 
Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 13(a) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).


 


6

















 


Section 12.  Presumptions and Effect of Certain
Proceedings.


 


(a)           In making a
determination with respect to entitlement to indemnification hereunder, the
Independent Counsel making such determination shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 10(a) of this
Agreement, and the Company shall have the burden of proof to overcome that presumption
in connection with the making by the Independent Counsel of any determination
contrary to that presumption. Neither the failure of the Company or of
Independent Counsel to have made a determination prior to the commencement of
any action pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Company or by Independent Counsel that
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indenmitee has not met the
applicable standard of conduct.


 


(b)           The termination of
any Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of guilty, nolo  contendere
or its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.


 


(c)           For purposes of any
determination of good faith, Indemnitee shall be deemed to have acted in good
faith if Indemnitee’s action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to
Indemnitee by the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or the Board or counsel
selected by any committee of the Board or on information or records given or
reports made to the Enterprise by an independent certified public accountant or
by an appraiser, investment banker or other expert selected with reasonable
care by the Company or the Board or any committee of the Board.  The provisions of this Section 12(c) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.


 


(d)           The knowledge and/or
actions, or failure to act, of any director, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.


 


Section 13.  Remedies of Indemnitee.


 


(a)           Subject to Section 13(e),
in the event that (i) a determination is made pursuant to Section 11
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 9
of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of
this Agreement within ninety (90) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made
pursuant to Section 5 or 6 or the last sentence of Section 11(a) of
this Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification pursuant to Section 3,
4 or 7 of this 


 


7

















 


Agreement is not
made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication by a court of his entitlement to such indemnification or
advancement of Expenses.  Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by
a single arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.  Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 13(a); provided,
however, that the foregoing clause shall not apply in respect of a
proceeding brought by Indemnitee to enforce his rights under Section 5 of
this Agreement.  The Company shall not
oppose Indemnitee’s right to seek any such adjudication or award in
arbitration.


 


(b)           In the event that a
determination shall have been made pursuant to Section 11(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 13 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination.  In any judicial proceeding or arbitration
commenced pursuant to this Section 13 the Company shall have the burden of
proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.


 


(c)           If a determination
shall have been made pursuant to Section 11(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 13, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.


 


(d)           The Company shall be
precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 13 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.  The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within ten (10) days after receipt by the
Company of a written request therefor) advance, to the extent not prohibited by
law, such Expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for indemnification or advance
of Expenses from the Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses or insurance recovery, as the case may be.


 


(e)           Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to the
final disposition of the Proceeding, including any appeal therein.


 


8

















 


Section 14.  Non-exclusivity, Survival of Rights;
Insurance Subrogation.


 


(a)           The rights of
indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Charter, the Company’s
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise.  No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or restrict any
right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment,
alteration or repeal.  To the extent that
a change in Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded
currently under the Charter, Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change.  No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.


 


(b)           To the extent that
the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, or agents of the Company or of any
other Enterprise, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy
or policies.  If, at the time of the
receipt of a notice of a claim pursuant to the terms hereof, the Company has
director and officer liability insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.


 


(c)           In the event of any
payment under this Agreement, the Company 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 take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.


 


(d)           The Company shall
not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder (or for which advancement is provided hereunder) if and
to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.


 


(e)           The Company’s
obligation to indemnify or advance Expenses hereunder to Indemnitee who is or
was serving at the request of the Company as a director, officer, employee or
agent of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification or advancement of Expenses from such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.


 


Section 15.  Duration of Agreement.  This Agreement shall continue until and
terminate upon the later of (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director


 


9

















 


of the Company or (b) one (1) year after
the final termination of any Proceeding, including any appeal, then pending in
respect of which Indemnitee is granted rights of indemnification or advancement
of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 13 of this Agreement relating thereto.  This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.  The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.


 


Section 16.  Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.


 


Section 17.  Enforcement.


 


(a)           The Company
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to
serve as a director of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director of the
Company.


 


(b)           This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the
subject matter hereof; provided, however, that this Agreement is
a supplement to and in furtherance of the Charter of the Company, the Bylaws of
the Company and applicable law, and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder.


 


Section 18.  Modification and Waiver.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
thereto.  No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver.


 


Section 19.  Noticed Indemnitee.  Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment,


 


10

















 


information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.  The failure
of Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or
otherwise.


 


Section 20.  Notices.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered by hand and receipted for by the
party to whom said notice or other communication shall have been directed, (b) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, (c) mailed by reputable overnight
courier and receipted for by the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile
transmission, with receipt of oral confirmation that such transmission has been
received:


 


(a)           If to Indemnitee, at
such address as Indemnitee shall provide to the Company;


 


(b)           If to the Company, to
its principal place of business or to any other address as may have been
furnished to Indemnitee by the Company.


 


Section 21.  Contribution.  To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is unavailable
to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order
to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).


 


Section 22.  Applicable Law and Consent to Jurisdiction.  This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware, without regard to its conflict of laws
rules.  Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 13(a) of this
Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Delaware Court, and not in any other
state or federal court in the United States of America or any court in any
other country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is
not otherwise subject to service of process in the State of Delaware, The
Corporation Trust Company, Wilmington, Delaware as its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court, and (v) waive, and agree not
to plead or to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or inconvenient forum.


 


11

















 


Section 23.  Miscellaneous.  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.  Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.


 


12

















 


IN WITNESS WHEREOF, the parties have caused this Indemnification Agreement
to be signed as of the day and year first above written.


 


 


	
   

  	
  EXPRESSION DIAGNOSTICS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: