Exhibit 10.1


 


INDEMNIFICATION AGREEMENT


 


dated as of September 14, 2004,


 


between Cytyc Corporation (the “Company”),


 


and                      
(“Indemnitee”)


 


WHEREAS, the Board of
Directors has determined that it is in the best interest of the Company’s shareholders
to attract and retain qualified persons as directors and officers, and that the
Company should act to assure such persons that there will be adequate certainty
of protection through indemnification against risks of claims and actions
against them arising out of their service to and activities on behalf of the
Company; and


 


WHEREAS, the Company has
adopted provisions in its Certificate of Incorporation providing for
indemnification of its officers and directors, and the Company wishes to
supplement the rights and obligations of the Company and Indemnitee with
respect to indemnification; and


 


WHEREAS, in order to
induce and encourage highly experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the Company and in
any other capacity with respect to the Company, and to otherwise promote the
desirable end that such persons will resist what they consider unjustified
lawsuits and claims made against them in connection with the good faith
performance of their duties to the Company, with the knowledge that certain
costs, judgments, penalties, fines, liabilities and expenses incurred by them
in their defense of such litigation are to be borne by the Company and they
will receive maximum protection against such risks and liabilities as may be
afforded by law, the Board of Directors of the Company has determined that the
following Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and


 


WHEREAS, the Company
desires to have Indemnitee continue to serve as a director or officer of the
Company and in such other capacity with respect to the Company as the Company
may request, as the case may be, free from undue concern for unpredictable,
inappropriate or unreasonable legal risks and personal liabilities by reason of
Indemnitee acting in good faith in the performance of Indemnitee’s duty to the
Company; and Indemnitee desires to continue so to serve the Company, provided,
and on the express condition, that he or she is furnished with the indemnity
set forth hereinafter;


 


Now, therefore, in
consideration of Indemnitee’s continued service as a director or officer of the
Company, the parties hereto agree as follows:


 


1.                                       Service
by Indemnitee.  Indemnitee will serve
and/or continue to serve as a director or officer of the Company so long as
Indemnitee is duly elected or appointed and until such time as Indemnitee is
removed as permitted by law or tenders a resignation in writing.


 





















 


2.                                       Indemnification.  The Company shall indemnify Indemnitee to the
fullest extent permitted by the Delaware General Corporation law in effect on
the date hereof or as such law may from time to time be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law permitted the
Company to provide prior to such amendment). 
Without diminishing the scope of the indemnification provided by this Section,
the rights of indemnification of Indemnitee provided hereunder shall include
but shall not be limited to those rights hereinafter set forth, except that no
indemnification shall be paid to Indemnitee:


 


(a)                                  to
the extent expressly prohibited by Delaware law; or


 


(b)                                 for
which payment is actually made to Indemnitee under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause, by-law or
agreement of the Company or any other Company or organization on whose board
Indemnitee serves at the request of the Company, except in respect of any
indemnity exceeding the payment under such insurance, clause, by-law or
agreement; or


 


(c)                                  in
connection with an action, suit or proceeding, or part thereof (including
claims and counterclaims) initiated by Indemnitee, except a judicial proceeding
or arbitration pursuant to Section 10 to enforce rights under this
Agreement, unless the action, suit or proceeding (or part thereof) was
authorized by the Board of Directors of the Company.


 


3.                                       Action
or Proceedings Other than an Action by or in the Right of the Company.  Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided in this Section if
Indemnitee is a party or is threatened to be made a party to any Proceeding
(other than an action by or in the name of the Company) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent or fiduciary of any other entity (including, but not
limited to, another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise or entity); or by reason of anything done or
not done by Indemnitee in any such capacity. 
Pursuant to this Section, Indemnitee shall be indemnified against all
costs, judgments, penalties, fines (including, without limitation, ERISA excise
taxes or penalties assessed on a person with respect to any employee benefit
plan), liabilities, amounts paid in settlement by or on behalf of Indemnitee,
and Expenses (defined below) reasonably incurred or suffered by Indemnitee in
connection with such Proceeding 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 with respect to any criminal Proceeding, had no reasonable
cause to believe his or her conduct was unlawful.


 


4.                                       Indemnity
in Proceedings by or in the Name of the Company.  Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided in this Section if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding brought by or in the name of the Company to procure a judgment in
its favor by reason of the


 


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fact
that Indemnitee is or was a director, officer, employee or agent or fiduciary
of the Company, or by reason of anything done or not done by Indemnitee in any
such capacity.  Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of Indemnitee, and
Expenses reasonably incurred or suffered by Indemnitee in connection with such
Proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that no such indemnification shall be made in
respect of any claim, issue, or matter as to which Delaware law expressly
prohibits such indemnification by reason of any adjudication of liability of
Indemnitee to the Company, unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is
entitled to indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem proper.


 


5.                                       Indemnification
for Costs, Charges and Expenses of Successful Party.  Notwithstanding the limitations of Sections 3
and 4 above, to the extent that Indemnitee has been successful, on the merits
or otherwise, in whole or in part, in defense of any Proceeding (including any
Proceeding brought by or on behalf of the Company) or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of any
action without prejudice, or if it is ultimately determined that Indemnitee is
otherwise entitled to be indemnified against Expenses, Indemnitee shall be
indemnified against all Expenses reasonably incurred or suffered in connection
therewith.


 


6.                                       Partial
Indemnification.  If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the costs, judgments, penalties, fines,
liabilities or Expenses reasonably incurred or suffered in connection with any
Proceeding (including any Proceeding brought by or on behalf of the Company),
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such costs, judgments,
penalties, fines, liabilities, amounts paid in settlement and Expenses
reasonably incurred or suffered to which Indemnitee is entitled.


 


7.                                       Indemnification
for Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the maximum
extent permitted by applicable law, Indemnitee shall be entitled to
indemnification against all Expenses reasonably incurred or suffered by
Indemnitee or on Indemnitee’s behalf if Indemnitee appears as a witness or
otherwise incurs legal expenses as a result of or related to Indemnitee’s
service as a director, officer, employee or agent of the Company, in any
threatened, pending or completed legal, administrative, investigative or other
proceeding or matter to which Indemnitee neither is, nor is threatened to be
made, a party.


 


8.                                       Determination
of Entitlement to Indemnification. 
Upon written request by Indemnitee for indemnification pursuant to
Sections 5 or 7, the Company shall pay all Expenses reasonably incurred or
suffered by Indemnitee.  Upon written
request by Indemnitee for indemnification pursuant to Sections 3, 4, or 6, the
entitlement of Indemnitee to indemnification, to the extent not provided
pursuant to the terms of this Agreement, shall be determined by the following
person or persons who shall be empowered to make such determination (unless


 


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ordered
by a court):  (a) the Board of Directors
of the Company by a majority vote of Disinterested Directors  (defined below), whether or not such majority
constitutes a quorum; (b) a committee of Disinterested Directors designated by
a majority vote of Disinterested Directors, whether or not such majority
constitutes a quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (defined below) in a
written opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee; or (d) the stockholders of the Company.  Such Independent Counsel shall be selected by
the Board of Directors and approved by Indemnitee.  Upon failure of the Board so to select such
Independent Counsel or upon failure of Indemnitee so to approve, such
Independent Counsel shall be selected upon application to a court of competent
jurisdiction.  Such determination of
entitlement to indemnification shall be made not later than thirty (30)
calendar days after receipt by the Company of a written request for
indemnification.  Any Expenses incurred
by Indemnitee in connection with a request for indemnification or payment of
Expenses hereunder, or under any other agreement, any provision of the Company’s
Certificate of Incorporation or any policy of directors’ and officers’
liability insurance, shall be borne by the Company.  The Company hereby indemnifies Indemnitee for
any such Expense and agrees to hold Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee’s entitlement to indemnification.  If the person making such determination shall
determine that Indemnitee is entitled to indemnification as to part (but not
all) of the application for indemnification, such person shall reasonably
prorate such partial indemnification among the claims, issues or matters at
issue at the time of the determination.


 


9.                                       Presumptions
and Effect of Certain Proceedings. 
The Secretary of the Company shall, promptly upon receipt of Indemnitee’s
request for indemnification, advise in writing the Board of Directors or such
other person or persons empowered to make the determination as provided in Section 8
that Indemnitee has made such request for indemnification.  Upon making such request for indemnification,
Indemnitee shall be presumed to be entitled to indemnification hereunder and
the Company shall have the burden of proof in making any determination contrary
to such presumption.  If the person or
persons so empowered to make such determination shall have failed to make the
requested determination with respect to indemnification within 30 calendar days
after receipt by the Company of such request, a requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be absolutely entitled to such indemnification, absent actual and
material fraud in the request for indemnification.  The termination of any Proceeding described
in Sections 3 or 4 by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its
equivalent, shall not, of itself:  (a)
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee 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 Indemnitee’s conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.


 


10.                                 Remedies
of Indemnitee in Cases of Determination not to Indemnify or to Pay Expenses.  In the event that a determination is made
that Indemnitee is not entitled to indemnification hereunder or if payment has
not been timely made following a determination of entitlement to indemnification
pursuant to Sections 8 and 9, or if Expenses are not paid pursuant to Section 15,
Indemnitee shall be entitled to final adjudication in a court of competent


 


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jurisdiction
of entitlement to such indemnification or payment.  Alternatively, Indemnitee, at Indemnitee’s
option, may seek an award in an arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association, such
award to be made within sixty days following the filing of the demand for
arbitration.  The Company shall not
oppose Indemnitee’s right to seek any such adjudication or award in arbitration
or any other claim.  The determination in
any such judicial proceeding or arbitration shall be made de novo and Indemnitee shall not be
prejudiced by reason of a determination (if so made) pursuant to Sections 8 or
9 that Indemnitee is not entitled to indemnification.  If a determination is made or deemed to have
been made pursuant to the terms of Section 8 or 9 that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination
and is precluded from asserting that such determination has not been made or
that the procedure by which such determination was made is not valid, binding and
enforceable.  The Company further agrees
to stipulate in any such court or before any such arbitrator that the Company
is bound by all the provisions of this Agreement and is precluded from making
any assertions to the contrary.  If the
court or arbitrator shall determine that Indemnitee is entitled to any
indemnification or payment of Expenses hereunder, the Company shall pay all
Expenses reasonably incurred or suffered by Indemnitee in connection with such
adjudication or award in arbitration (including, but not limited to, any
appellate Proceedings).


 


11.                                 Other
Rights to Indemnification. 
Indemnification and payment of Expenses provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may now or in
the future be entitled under any provision of the Certificate of Incorporation,
By-laws or other organizational documents of the Company, vote of stockholders
or Disinterested Directors, provision of law, agreement or otherwise.


 


12.                                 Expenses
to Enforce Agreement.  In the event
that Indemnitee is subject to or intervenes in any Proceeding in which validity
or enforceability of this Agreement is at issue or seeks an adjudication or
award in arbitration to enforce Indemnitee’s rights under, or to recover
damages for breach of, this Agreement, Indemnitee shall be indemnified by the
Company against any actual Expenses incurred by Indemnitee.


 


13.                                 Continuation
of Indemnity.  All agreements and
obligations of the Company contained herein shall continue during the period
Indemnitee is a director, officer, employee or agent of the Company or is
serving at the request of the Company as a director, officer, employee or agent
or fiduciary of any other entity (including, but not limited to, another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise or entity) of the Company and shall continue thereafter with respect
to any possible claims based on the fact that Indemnitee was a director,
officer, employee or agent of the Company or was serving at the request of the
Company as a director, officer, employee or agent or fiduciary of any other
entity (including, but not limited to, another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise or entity).  This Agreement shall be binding upon all
successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or operation of
law) and shall inure to the benefit of the heirs, personal representative, executor,
administrator and estate of Indemnitee.


 


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14.                                 Notification
and Defense of Claim.  Promptly after
receipt by Indemnitee of notice of any Proceeding, Indemnitee will, if a claim
in respect thereof is to be made against the Company under this Agreement,
notify the Company in writing of the commencement thereof; but the omission so
to notify the Company will not relieve the Company from any liability that it
may have to Indemnitee.


 


15.                                 Payment
of Expenses.  All Expenses incurred
by Indemnitee in advance of the final disposition of any Proceeding shall be
paid by the Company at the request of Indemnitee, each such payment to be made
within thirty (30) calendar days after the receipt by the Company of a statement
or statements from Indemnitee requesting such payment or payments from time to
time.  Indemnitee’s entitlement to such
Expenses shall include those incurred in connection with any Proceeding by
Indemnitee seeking a judgment in court or an adjudication or award in
arbitration pursuant to this Agreement (including the enforcement of this
provision) or the Company’s Certificate of Incorporation.  Such statement or statements shall reasonably
evidence the expenses and costs incurred by Indemnitee in connection therewith
and shall include or be accompanied by an undertaking, in substantially the
form attached as Exhibit 1, by or on behalf of Indemnitee to reimburse such
amount if it is finally determined, by a court of competent jurisdiction, after
all appeals, that Indemnitee is not entitled to be indemnified against such
Expenses by the Company as provided by this Agreement or otherwise.  The Company shall not require Indemnitee to
secure Indemnitee’s undertaking to reimburse any such amounts.


 


16.                                 Separability;
Prior Indemnification Agreements.  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, all portions of any paragraphs of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
by themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby, and (b) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraph of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent of the parties that the Company
provide protection to Indemnitee to the fullest enforceable extent.  This Agreement shall supersede and replace any
prior indemnification agreements entered into by and between the Company and
Indemnitee and any such prior agreements shall be terminated upon execution of
this Agreement; provided, however, that the contract rights conferred upon
Indemnitee in this Agreement shall be in addition to, and shall not replace or
extinguish, the indemnification rights conferred upon Indemnitee in the Company’s
Certificate of Incorporation.


 


17.                                 Headings;
References; Pronouns.  The headings
of the sections 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.  References herein
to section numbers are to sections of this Agreement.  All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as
appropriate.


 


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18.                                 Definitions.  For purposes of this Agreement.


 


(a)                                  “Disinterested
Director” means a director of the Company who is not or was not a party to the
Proceeding in respect of which indemnification is being sought by Indemnitee.


 


(b)                                 “Expenses”
includes, without limitation, expenses incurred in connection with the defense
or settlement of any and all investigations, judicial or administrative
proceedings or appeals, attorneys’ fees, witness fees and expenses, fees and
expenses of accountants and other advisors, retainers and disbursements and
advances thereon, the premium, security for, and other costs relating to any
bond (including cost bonds, appraisal bonds or their equivalents), and any
expenses of establishing a right to indemnification under Sections 8, 10 and 12
above but shall not include the amount of judgments, fines or penalties
actually levied against Indemnitee.


 


(c)                                  “Independent
Counsel” means a law firm or a member of a law firm that neither is presently
nor in the past five years has been retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, 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 right to indemnification under this Agreement.


 


(d)                                 “Proceeding”
includes any threatened, pending or completed investigation, action, suit or
other proceeding, whether brought in the name of the Company or otherwise,
against Indemnitee, for which indemnification is not prohibited under Sections
2(a)-(c) above and whether of a civil, criminal, administrative or
investigative nature, including, but not limited to, actions, suits or
proceedings in which Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or is or was serving, at the request of the
Company, as a director, officer, employee or agent or fiduciary of any other
entity, including, but not limited to, another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise or entity, or by
reason of anything done or not done by Indemnitee in any such capacity, whether
or not Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.


 


19.                                 Other
Provisions.


 


(a)                                  This
Agreement shall be interpreted and enforced in accordance with the laws of the
State of Delaware.  Except as set forth
in Paragraph 10 hereof with


 


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respect to Indemnitee’s right to arbitration, to the fullest extent
permitted by law the Court of Chancery of the State of Delaware shall have
exclusive jurisdiction to hear and determine all actions, suits or proceedings
arising out of this Agreement.


 


(b)                                 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 as evidence of the existence of
this Agreement.


 


(c)                                  This
Agreement shall not be deemed an employment contract between the Company and
any Indemnitee who is an officer of the Company, and, if Indemnitee is an
officer of the Company, Indemnitee specifically acknowledges that Indemnitee
may be discharged at any time for any reason, with or without cause, and with
or without severance compensation, except as may be otherwise provided in a
separate written contract between Indemnitee and the Company.


 


(d)                                 Upon
a payment to Indemnitee under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of the Indemnitee to recover
against any person for such liability, and Indemnitee shall execute all
documents and instruments reasonably required and shall take such other actions
as may be reasonably necessary to secure such rights, including the execution
of such documents as may be necessary for the Company to bring suit to enforce
such rights; provided, however, that Indemnitee need not execute any document
or instrument or take any other action that may result in any less liability to
Indemnitee unless Indemnitee is indemnified with respect thereto.


 


(e)                                  No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties hereto. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on and as of the day and year first above written.


 


	
   

  	
  The Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Indemnitee

  



 


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EXHIBIT
1


 


UNDERTAKING TO REPAY
INDEMNIFICATION EXPENSES


 


I                                                                ,
agree to reimburse the Company for all expenses paid to me by the Company for
my defense in any civil or criminal action, suit, or proceeding, in the event,
and to the extent that it shall ultimately be determined, by a court of
competent jurisdiction, that I am not entitled to be indemnified by the Company
for such expenses.


 


 


	
   

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Typed Name

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Office

  	
   

  	
   

  
						



 


                          )ss:


 


Before me                                  ,
on this day personally appeared                       ,
known to me to be the person whose name is subscribed to the foregoing
instrument, and who, after being duly sworn, stated that the contents of said
instrument is to the best of his/her knowledge and belief true and correct and
who acknowledged that he/she executed the same for the purpose and
consideration therein expressed.


 


GIVEN under my hand and official seal at          ,
this           day of            ,
200    .


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public

  



 


My commission expires:


 


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