Exhibit 10.6


 


INDEMNITY AGREEMENT


 


THIS INDEMNITY AGREEMENT, dated
as of                ,
200  , between Biosite Incorporated, a Delaware corporation (the
“Corporation”), and               
(the “Indemnitee”),


 


W I T N E S S E T H:


 


WHEREAS, Indemnitee is a
director, officer, employee or other agent of the Corporation, or is serving at
the request of the Corporation as a director, officer, employee or other agent
of another corporation, partnership, joint venture, trust or other enterprise
(an “Alternate Enterprise”) 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, officer, employee or other agent of the Corporation, or at
the request of the Corporation as a director, officer, employee or other agent
of an Alternate Enterprise, 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 the applicable
charter documents of any Alternate Enterprise, 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, officer, employee or other agent of the Corporation,
or during Indemnitee’s service at the request of the Corporation as a director,
officer, employee or other agent of an Alternate Enterprise, or to the fullest
extent permitted by the Delaware General Corporation Law (the “DGCL”) or the
Restated Certificate of Incorporation or Bylaws of the Corporation in effect on
the date hereof or as the DGCL or such Restated Certificate of Incorporation or
Bylaws 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 rights than the DGCL or such Restated Certificate of
Incorporation or Bylaws permitted the Corporation to provide before such
amendment).  The right to indemnification
provided in the Restated Certificate of Incorporation and Bylaws of the
Corporation 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 or was
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, 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 an Alternate Enterprise, or because
of anything done or not done by Indemnitee in any 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 is or 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 or was
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 Sections 3, 7, 8 and 13
below.


 


(b)           Indemnitee shall
be paid promptly by the Corporation all amounts necessary to effectuate the
foregoing indemnity.


 


(c)           Indemnitee
shall be entitled under this Agreement to indemnification by the Corporation
for a portion of the Expenses and Liabilities that Indemnitee becomes legally
obligated to pay in connection with any Proceeding referred to in paragraph (a)
above even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled.


 


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 the DGCL 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 not apply:


 


(a)           to
the extent that Indemnitee has been indemnified and reimbursed


 





















 


pursuant to such insurance as the Corporation may maintain for
Indemnitee’s benefit, or 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;


 


(b)           on
account of any claim against Indemnitee solely for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Corporation
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934 and amendments thereto or similar provisions of any federal, state or
local statutory law;


 


(c)           on
account of Indemnitee’s conduct that is established by a final judgment as
constituting a breach of Indemnitee’s duty of loyalty to the Corporation or
resulting in any personal profit or advantage to which Indemnitee was not
legally entitled;


 


(d)           if
indemnification is not lawful (and, in this respect, both the Corporation and
Indemnitee 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


 


(e)           in
connection with any proceeding (or part thereof) initiated by Indemnitee, or
any proceeding by Indemnitee against the Corporation or its directors,
officers, employees or other agents, unless (i) such indemnification is
expressly required to be made by the DGCL, (ii) the proceeding was
authorized by the Board of Directors of the Corporation (the “Board of
Directors”), (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 8
hereof.


 


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 the
DGCL.  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 (5)
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, who shall make the determination by majority vote or
written consent;


 


(ii)   The Disinterested
Directors, or if designated by a majority of such Disinterested Directors, a
committee of the Board of Directors consisting entirely of Disinterested
Directors, who shall make the determination by majority vote or written
consent; or


 


(iii)  If there are no
Disinterested Directors, by Independent Legal Counsel, who shall make the
determination in a written opinion.


 


If Indemnitee fails to make
such designation, his or her claim shall be heard in a forum selected by the
Corporation in accordance with the DGCL, or 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 should such Independent Legal Counsel be retained to
make a determination of Indemnitee’s entitlement to indemnification pursuant to
Section 6 of this Agreement, and to fully indemnify such Independent Legal
Counsel 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.


 


(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 Proceeding, if an claim for indemnification
in respect thereof is to be made against the Corporation under this Agreement,
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 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, and so notified the Corporation, 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; or


 


(ii)           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. The Corporation shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without the Corporation’s written consent; provided,
however, that the Corporation will not unreasonably withhold its 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:


 


	
  (a)

  	
  If to
  Indemnitee, to:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  (b)

  	
  If to the
  Corporation, to:

  
	
   

  	
   

  
	
   

  	
  Biosite
  Incorporated

  
	
   

  	
  11030
  Roselle Street

  
	
   

  	
  San Diego,
  California 92121

  
	
   

  	
  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 DGCL,
the Corporation’s Restated Certificate of Incorporation or Bylaws, or any
agreements, vote of stockholders, resolution of the Board of Directors or
otherwise (other than any rights under an indemnity agreement entered into
between Indemnitee and the Company prior to the date hereof, which agreement
shall be superseded in its entirety by this Agreement).


 


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, the DGCL 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) 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, officer, employee or other agent of the Corporation, or at
the request of the Corporation as a director, officer, employee or other agent
of an Alternate Enterprise, and thereafter so long as Indemnitee shall be
subject to any possible Proceeding arising out of acts or omissions of
Indemnitee while serving as a director, officer, employee or other agent of the
Corporation, or while serving at the request of the Corporation as a director,
officer, employee or other agent of an Alternate Enterprise.


 


(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:


 


(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 supersedes any prior 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
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Its: