Exhibit 10-1





  


 


 


 

 


INDEMNIFICATION AGREEMENT


THIS INDEMNIFICATION AGREEMENT (“Agreement” is entered
into as of this ___ day of _____, 200__, by and between PRO-DEX, INC., a
  Colorado corporation (the “Company”) and the Indemnitee identified on
the signature page hereto (the “Indemnitee”).


R E C I T A L
S:


A.        The Company and Indemnitee recognize the continued
difficulty in obtaining liability insurance for its directors, officers,
employees, agents and fiduciaries, the significant increases in the cost of
such insurance and the general reductions in the coverage of such insurance.


B.        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 coverage of liability insurance has been
severely limited.


C.        Indemnitee does not regard the current protection
available as adequate under the present circumstances, and Indemnitee and other
directors, officers, employees, agents and fiduciaries of the Company may not
be willing to continue to serve in such capacities without additional
protection.


D.        The Company (i) desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to serve the
Company and, in part, in order to induce Indemnitee to continue to provide
services to the Company and (ii) wishes to provide for the indemnification and
advancing of expenses to each Indemnitee to the maximum extent permitted by
law.


E.         In view of the considerations set forth above, the
Company desires that Indemnitee be indemnified by the Company as set forth
herein.


NOW, THEREFORE, the Company and Indemnitee hereby agree as
follows:


 

 

 










 











 


 


Indemnification.


 


Indemnification of Expenses.  The Company shall indemnify and hold harmless
Indemnitee (including its partners, employees and agents) to the fullest extent
permitted by law if Indemnitee was or is or becomes a party to or witness other
participant in, or is threatened to be made a party to or witness or other
participant in, any threatened, pending or completed action, suit, proceeding
or alternative dispute resolution mechanism, or any hearing, inquiry or
investigation (whether formal or informal) that Indemnitee in good faith
believes might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a “Claim”) by reason
of (or arising in part out of) any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, controlling person, agent
or fiduciary of the Company, or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer, employee,
controlling person, agent or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action or
inaction on the part of Indemnitee while serving in such capacity including,
without limitation, any and all losses, claims, damages, expenses and
liabilities, joint or several (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit, proceeding or any claim asserted) under the Securities Act of
1933, as amended (the “Securities Act”), the Securities Exchange Act of
1934, as amended (the “Exchange Act”) or other federal or state
statutory law or regulation, at common law or otherwise, which relate directly
or indirectly to the registration, purchase, sale, holding or ownership of any
securities of the Company or to any fiduciary obligation owed with respect
thereto (hereinafter an “Indemnification Event”) against any and all
expenses (including attorneys’ fees and all other costs, expenses and
obligations incurred in connection with investigating, defending a witness in
or participating in (including on appeal), or preparing to defend, be a witness
in or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this
Agreement (collectively, hereinafter “Expenses”), including all
interest, assessments and other charges paid or payable in connection with or
in respect of such Expenses.  Expenses shall also include reasonable
compensation for time spent by Indemnitee for which he is not compensated by
the Company or any subsidiary or third party for any period during which
Indemnitee is not an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if the rate of
compensation and the estimated time involved is approved by the directors of
the Company who are not parties to any action with respect to when expenses are
incurred, for Indemnitee while an agent of, employed by, or providing services
for compensation to the Company or any subsidiary. Such payment of Expenses
shall be made by the Company as soon as practicable but in any event no later
than five days after written demand by the Indemnitee therefor is presented to
the Company.  The parties agree that for the purposes of any Expense
advancement for which Indemnitee has made written demand to the Company in accordance
with this Agreement, all Expenses , except Indemnitee’s  counsel’s fees and
expenses, included in such Expense advancement that are certified by
Indemnitee's counsel as being reasonable shall be presumed conclusively to be
reasonable. 

 

 

2










 











 


 


 


 


Contribution.  If the indemnification provided for in Section
1(a) above for any reason is held by a court of competent jurisdiction to
be unavailable to an Indemnitee in respect of any losses, claims, damages,
expenses or liabilities referred to therein, then the Company, in lieu of
indemnifying Indemnitee thereunder, shall contribute to the amount paid or
payable by Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitee, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Indemnitee in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations.  In connection with the registration of the Company’s
securities, the relative benefits received by the Company and the Indemnitee
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Company and the
Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered.  The relative fault of the Company and the Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Indemnitee and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.


The Company and the Indemnitee agree that it would not be just
and equitable if contribution pursuant to this Section 1(b) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph.  In connection with the registration
of the Company’s securities, in no event shall an Indemnitee be required to
contribute any amount under this Section 1(b) in excess of the lesser of
(i) that proportion of the total of such losses, claims, damages or liabilities
indemnified against equal to the proportion of the total securities sold under such
registration statement which is being sold by such Indemnitee or (ii) the
proceeds received by Indemnitee from its sale of securities under such
registration statement.  No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not found guilty of such
fraudulent misrepresentation.


 


(i)
        Protection from Contribution 


The
Company hereby agrees to fully indemnify and hold harmless Indemnitee from any
claims for contribution for which the Indemnitee would otherwise be indemnified
hereunder which may be brought by Officers, Directors or employees of the
Company (other than Indemnitee) who may be jointly liable with Indemnitee


 


 


(ii)
       Protection from Contribution in Event of Joint Liability


Whether
or not the indemnification provided elsewhere in this agreement is available,
in respect of any threatened, pending or completed action, suit or proceeding
in which Company is jointly liable with Indemnitee, Company shall pay the
entire amount of any judgment or settlement of such action, suit or proceeding
without requiring Indemnitee to contribute to such payment. Company shall not
enter into any settlement of any action, suit or proceeding in which Company is
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.  


 


Survival Regardless of Investigation.  The indemnification and contribution provided for
in this Section 1 will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnitee or any officer, director,
employee, agent or controlling person of the Indemnitee.

 


 

 


3










 











 


 


 


 


Change in Control.  The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved
by a majority of the Company’s Board of Directors who were directors
immediately prior to such Change in Control) then, with respect to all matters
thereafter arising concerning the rights of Indemnitee to payments of Expenses
under this Agreement or any other agreement or under the Company’s Certificate
of Incorporation or Bylaws as now or hereafter in effect, Independent Legal
Counsel (as defined in Section 11(d) hereof) shall be selected by the
Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld).  Such counsel, among other things, shall render its
written opinion to the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law.  The
Company agrees to abide by such opinion and to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.


Mandatory Payment of Expenses.  Notwithstanding any other provision of this
Agreement other than Section 9 hereof, to the extent that Indemnitee
have been successful on the merits or otherwise, including, without limitation,
the dismissal of an action without prejudice in the defense of any action,
suit, proceeding, inquiry or investigation referred to in Section (1)(a)
hereof or in the defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee in connection
therewith.


Expenses;
Indemnification Procedure.


Advancement of Expenses.  The Company agrees to pay all Expenses incurred
by Indemnitee in connection with any Indemnification Event in advance of the
final disposition thereof, provided that the Company has received an
undertaking by or on behalf of Indemnitee, substantially in the form attached
hereto as Exhibit A, to repay the amount so advanced to the extent that
it is ultimately determined that Indemnitee is not entitled to be indemnified
by the Company under this Agreement or otherwise.  The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) days
following delivery of a written request therefor by Indemnitee to the Company.
The right to advances under this section shall in all events continue until
final disposition of any proceeding, including any appeal therein.


Notice/Cooperation by Indemnitee.   Indemnitee agrees to notify promptly the Company in
writing of any claim made against Indemnitee for which indemnification will or
could be sought under this Agreement; provided, however, that a
delay in giving such notice will not deprive Indemnitee of any right to be
indemnified under this Agreement unless, and then only to the extent that, the
Company did not otherwise learn of the proceeding and such delay is materially
prejudicial to the Company’s ability to defend such proceeding; and, provided,
further, that notice will be deemed to have been given without any
action on the part of Indemnitee in the event the Company is a party to the
same proceeding. The omission to notify the Company will not relieve the
Company from any liability for indemnification which it may have to Indemnitee
otherwise than under this Agreement.


No Presumptions; Burden of Proof.  For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contenders, or its equivalent,
shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.  In
connection with any determination as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.

 

4










 











 


 


Notice to Insurers.  If, at the time of the receipt by the Company of
a notice of a Claim pursuant to Section 2(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim 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 Indemnitee, all amounts payable as a result of such action,
suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.


Selection of Counsel.  In the event the Company shall be obligated
hereunder to pay the Expenses of any Claim, the Company shall be entitled to
assume the defense of such Claim, with counsel approved by the Indemnitee,
which approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election to do so.  After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Claim; provided, that (i) the Indemnitee shall have the
right to employ Indemnitee’s counsel in any such Claim at the Indemnitee’s
expense and (ii) if (A) the employment of counsel by the Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense or Indemnitee shall have any
defense to a Claim which is not available to the Company, (C) the Company shall
not continue to retain such counsel to defend such Claim, or (D) after a Change
in Control, the employment of counsel by Indemnitee has been approved by
counsel mutually acceptable to both parties then the fees and expenses of the
Indemnitee’s counsel shall be at the expense of the Company.  Without
Indemnitee’s prior written consent, the Company shall not enter into any
settlement of any proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such proceeding) unless such settlement
provides for a full and final release of all claims asserted against
Indemnitee. The Company shall be permitted to settle any action except that it
shall not settle any action or claim in any manner which would impose any
penalty or limitation on the Indemnitee without Indemnitee’s written consent, which may be given or withheld in Indemnitee’s sole
discretion. 


Additional
Indemnification Rights; Nonexclusivity.


Scope.  The Company hereby agrees to indemnify Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company’s Certificate of Incorporation, the Company’s Bylaws or
by statute.  In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a Colorado
corporation to indemnify a member of its Board of Directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change.  In the event of any change in any applicable law, statute or rule
which narrows the right of a Colorado corporation to indemnify a member of its
Board of Directors or an officer, employee, agent or fiduciary, such change, to
the extent not otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the parties’ rights
and obligations hereunder except as set forth in Section 8(a) hereof.

Nonexclusivity.  The indemnification provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under
the Company’s Certificate of Incorporation, its Bylaws, any agreement, any vote
of shareholders or disinterested directors, the General Corporation Law of the
State of Colorado, or otherwise.  The indemnification provided under this
Agreement shall continue as to Indemnitee for any action Indemnitee took or did
not take while serving in an indemnified capacity even though the Indemnitee
may have ceased to serve in such capacity.

 

 

 

5










 











 


 


 


 


No
Duplication of Payments.  


The Company shall not be liable under this Agreement to make any
payment in connection with any Claim made against Indemnitee to the extent such
Indemnitee has otherwise actually received payment (under any insurance policy,
Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.


Partial
Indemnification.


If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for any portion of Expenses incurred in
connection with any Claim, but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such Expenses to which Indemnitee is entitled.


[Reserved]. 



 


Liability Insurance.


 


(a)        Maintenance of Insurance 


The Company hereby covenants and agrees
that, so long as the Indemnitee shall continue to serve as an agent of the
Company and thereafter so long as the Indemnitee shall be subject to any
possible proceeding by reason of the fact that the Indemnitee was an agent of
the Company, but not to exceed six years, the Company shall promptly obtain and
maintain in full force and effect directors’ and officers’ liability insurance
(“D&O Insurance”) 


(b)       Annual Review 


At the Director’s request, the Company
shall arrange an annual review of the D &O Insurance by an independent
insurance adviser, all fees and charges arising from such review to be met by
the Company. 


(c)        Tail Coverage 


In the event of a Change in Control, the
Company shall maintain in force any and all insurance policies then maintained
by the Company in providing insurance--directors’ and officers’ liability,
fiduciary, employment practices or otherwise--in respect of Indemnitee, for a
period of six years thereafter (“Tail Coverage”). 



(d)       Indemnitee Control 

the Company shall not discontinue or
significantly reduce the scope or amount of coverage from one policy period to
the next (i) without the prior approval thereof by a majority vote of the
incumbent directors, even if less than a quorum, or (ii) if at the time that
any such discontinuation or significant reduction in the scope or amount of
coverage is proposed there are no incumbent directors, without the prior
written consent of Indemnitee (which consent shall not be unreasonably withheld
or delayed). 

 


6










 











 


 


Failure
to Indemnify.


 


In the event that any action is
instituted by Indemnitee under this Agreement or under any liability insurance
policies maintained by the Company to enforce or interpret any of the terms
hereof or thereof, Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee with respect to such action, regardless of whether
Indemnitee is ultimately successful in such action, and shall be entitled to
the advancement of Expenses with respect to such action, unless as a part of
such action a court of competent jurisdiction over such action determines that
each of the material assertions made by Indemnitee as a basis for such action
was frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by
Indemnitee in defense of such action (including costs and Expenses incurred
with respect to Indemnitee’s counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action.


It shall be a defense to such action
(other than an action brought to enforce a claim for expenses incurred in
connection with any action, suit or proceeding in advance of its final
disposition) that Indemnitee has not met the standard of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee for
the amount claimed, but the burden of proving such defense shall be on the
Company and Indemnitee shall be entitled to receive interim payments of interim
expenses pursuant to Section 2 hereof unless and until such defense may
be finally adjudicated by court order or judgment from which no further right
of appeal exists.  It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of
the Company (including its Board of Directors, independent legal counsel, or
its shareholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including its board of directors, any committee
or subgroup of the Board of Directors, independent legal counsel, or its
shareholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.


Exceptions.


Any other provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:


Excluded Action or Omissions.  To indemnify Indemnitee for Indemnitee’s acts,
omissions or transactions from which the Indemnitee may not be relieved of
liability under applicable law;

 

7










 











 


 


 


 


Claims Initiated by Indemnitee.  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 to
establish or enforce a right to indemnify 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 Claims for
Indemnifiable Events, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Section 145 of the Colorado General Corporation Law, regardless
of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be;


Frivolous Claims.  To indemnify Indemnitee for any expenses incurred
by Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
proceeding was frivolous; or


Claims Under Section 16(b).  To indemnify Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended or any similar successor statute, but only to the extent the
Company reasonably determines that Indemnitee clearly violated Section 16(b)
and must disgorge the profits to the Company. Notwithstanding anything to the contrary stated or implied in this
Section 9, indemnification pursuant to this Agreement relating to any
proceeding against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act or similar provisions of any
federal, state or local laws shall not be prohibited if Indemnitee ultimately
establishes in any proceeding that no recovery of such profits from Indemnitee
is permitted under Section 16(b) of the Exchange Act or similar provisions of
any federal, state or local laws.


Period
of Limitations.


No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee’s
estate, spouse, heirs, executors or personal or legal representatives after the
expiration of one year from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations
is otherwise applicable to any such cause of action, such shorter period shall
govern.


Construction
of Certain Phrases.


For purposes of this Agreement,
references to the “Company” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, agents or fiduciaries, so that if Indemnitee is
or was a director, officer, employee, agent, control person, or fiduciary of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent, control person
or fiduciary, each Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.

 

8










 











 


 


 


 


For purposes of this Agreement,
references to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to “serving
at the request of the Company” shall include any service as a director,
officer, employee, agent or fiduciary of the Company which imposes duties on,
or involves services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner not opposed to the best interests of the Company as referred to in this
Agreement.


For purposes of this Agreement a “Change
in Control” shall be deemed to have occurred if (i) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than a trustee or other fiduciary holding indirectly
by the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company, (A) who is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 10% or
more of the combined voting power of the Company’s then outstanding Voting
Securities, increases his beneficial ownership of such securities by 5% or more
over the percentage so owned by such person, or (B) becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing more than 20% of the total voting
power represented by the Company’s then outstanding Voting Securities, (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by
the Company’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the
shareholders of the Company approve a merger or consolidation of the Company
with any other corporation other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all of the
Company’s assets.


For purposes of this Agreement, “Independent
Legal Counsel” shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 1(d) hereof, who shall not
have otherwise performed services for the Company or Indemnitee within the last
three years (other than with respect to matters concerning the right of
Indemnitee under this Agreement, or of other indemnitees under similar
indemnity agreements).


For purposes of this Agreement, “Voting
Securities” shall mean any securities of the Company that vote generally in
the election of directors.


Counterparts. 



This Agreement may be executed in one or more counterparts, each
of which shall constitute an original.



9










 








 Binding
Effect; Successors and Assigns.


This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business and/or
assets of the Company, spouses, heirs, and personal and legal representatives. 
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 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.  This Agreement shall continue in effect with respect to Claims relating
to Indemnifiable Events regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent, controlling person, or fiduciary of the
Company or of any other enterprise at the Company’s request.


Attorneys’
Fees.


In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, any
Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee
with respect to such action, regardless of whether Indemnitee is ultimately
successful in such action, and shall be entitled to the advancement of Expenses
with respect to such action, unless, as a part of such action, a court of
competent jurisdiction over such action determines that each of the material
assertions made by Indemnitee as a basis for such action was not made in good
faith or was frivolous.  In the event of an action instituted by or in the name
of the Company under this Agreement to enforce or interpret any of the terms of
this Agreement, the Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee in defense of such action (including costs and expenses
incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court having jurisdiction over
such action determines that each of Indemnitee’s material defenses to such
action was made in bad faith or was frivolous.


Notice.


All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given (a) five (5) days after deposit with the U.S.
Postal Service or other applicable postal service, if delivered by first class
mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one
business day after the business day if deposited with Federal Express or
similar overnight courier, freight prepaid, or (d) one day after the business
day of delivery by facsimile transmission, if deliverable by facsimile
transmission, with copy by first class mail, postage prepaid, and shall be
addressed if to Indemnitee, at Indemnitee’s address as set forth beneath the
Indemnitee’s signature to this Agreement and if to the Company at the address
of its principal corporate offices (attention: Secretary) or at such other
address as such party may designate by ten days’ advance written notice to the
other party hereto.

 

 



10










 









 



 


Consent
to Jurisdiction.


 


 


The Company and Indemnitee each hereby irrevocably consent to the
jurisdiction of the courts of the State of Colorado 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
commenced, prosecuted and continued only in the Superior Court of the State of
Colorado, which shall be the exclusive and only proper forum for adjudicating
such a claim.


Severability.


The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) are held by a court of competent jurisdiction
to be invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the fullest extent permitted by law.  Furthermore,
to the fullest extent possible, the provisions of this Agreement (including,
without limitations, each portion of this Agreement containing any provision
held to be invalid, void or otherwise unenforceable, that is not itself invalid,
void or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.


Choice
of Law.


This Agreement shall be governed by and its provisions construed
and enforced in accordance with the laws of the State of Colorado, as applied
to contracts between Colorado residents, entered into and to be performed
entirely within the State of Colorado, without regard to the conflict of laws
principles thereof.


 


Subrogation.


In the event of 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 documents required and shall do all acts that
may be necessary to secure such rights and to enable the Company effectively to
bring suit to enforce such rights.


Amendment
and Termination.


No amendment, modification, termination or cancellation of this
Agreement shall be effective unless it is in writing signed by all 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.


Integration
and Entire Agreement.


This Agreement sets forth the entire understanding between the
parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the
subject matter hereof between the parties hereto.


No Construction as
Employment Agreement.


Nothing contained in this Agreement shall be construed as giving
Indemnitee any right to be retained in the employ of the Company or any of its
subsidiaries.



11










 











 


 


23.       Effectiveness of Agreement


 


            This
Agreement shall be effective as of the date set forth on the first page, and
this Agreement applies to any Indemnifiable Event that occurred prior to or
after such date if Indemnitee was an officer, director, employee or agent of,
or attorney for, Company, or was serving at the request of Company as a director,
officer, employee or agent of, or attorney for, another corporation,
partnership, joint venture, trust or other enterprise, at the time such
Indemnifiable Event occurred.


            All
the rights and privileges afforded by this Agreement, including the right to indemnification
and the advancement of legal fees provided under this Agreement, shall continue
as to Indemnitee for any action taken or not taken while serving in an
indemnified capacity pertaining to an Indemnifiable Event even though
Indemnitee may have ceased to serve in such capacity at the time of any
proceeding.


24.       Contract
Right 


The right to be indemnified or to receive advancement of Expenses
under this Agreement (i) is a contract right based upon good and valuable
consideration, pursuant to which Indemnitee may sue, (ii) is and is intended to
be retroactive and shall be available as to events occurring prior to the date
of this Agreement and (iii) shall continue after any rescission or restrictive
modification of this Agreement as to events occurring prior thereto 


25.       Monetary Damages
Insufficient/Specific Enforcement 


The Company and Indemnitee agree that a monetary remedy for
breach of this Agreement may be inadequate, impracticable and difficult of
proof, and further agree that such breach may cause Indemnitee irreparable
harm. Accordingly, the parties hereto agree that Indemnitee may enforce this
Agreement by seeking injunctive relief and/or specific performance hereof,
without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be
precluded from seeking or obtaining any other relief to which he may be
entitled. The Company and Indemnitee further agree that Indemnitee shall be
entitled to such specific performance and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertaking in
connection therewith. The Company acknowledges that in the absence of a waiver,
a bond or undertaking may be required of Indemnitee by the Court, and the
Company hereby waives any such requirement of a bond or undertaking.


26.       Binding Presumption of
Entitlement for Failure to Act 


If the person or persons empowered to make a determination of
entitlement to indemnification shall have failed to make the requested
determination within ninety (90) days after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of nolo
contendere or its equivalent, or other disposition or partial
disposition of any proceeding or any other event that could enable the
Corporation to determine Indemnitee’s entitlement to indemnification, the
requisite determination that Indemnitee is entitled to indemnification shall be
deemed to have been made.


27.       Enforcement of Rights


(a)        Right to Enforce in Court 

If Indemnitee has not received full
indemnification within thirty (30) days after making a demand in accordance
with Section 1, Indemnitee shall have the right to enforce its indemnification
rights under this Agreement by commencing litigation in any court in the State
of Colorado or any other court having subject matter jurisdiction thereof
seeking an initial determination by the court or challenging any determination
by the Reviewing Party or any aspect thereof. The Company hereby consents to
service of process and to appear in any such proceeding. The remedy provided
for in this Section 27 shall be in addition to any other remedies available to
Indemnitee at law or in equity. 


12










 










28.       Rights in Event of a Change
of Control


(a)        Company
pays for Indemnitee to Sue Company—After Change in Control 


            Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any proceeding
initiated by Indemnitee against the Company or any director or officer of the
Company unless the proceeding is instituted after a Change in Control (other
than a Change in Control approved by a majority of the directors on the Board
who were directors immediately prior to such Change in Control). 


29.       Information Sharing


If the Indemnitee is the subject of or is implicated in any way
during an investigation, whether formal or informal, the Company shall share
with Indemnitee any information it has turned over to any third parties
concerning the investigation except information subject to attorney client
privilege.


30.       Interest


Interest shall be paid by the Company to Indemnitee at the legal
rate under Colorado law for amounts which the Company indemnifies or is obliged
to indemnify for the period commencing with the date on which Indemnitee
requests indemnification, contribution, reimbursement or advancement of any
Expenses and ending with the date on which such payment is made to Indemnitee
by the Company.


31.       No Imputation


The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Corporation or the Corporation itself shall
not be imputed to Indemnitee for purposes of determining any rights under this
Agreement.


32.       Determination of Good Faith

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 Company, including financial statements, or
on information supplied to Indemnitee by the officers of the Company in the
course of their duties, or on the advice of legal counsel for the Company or
the Board or counsel selected by any committee of the Board or on information
or records given or reports made to the Company by an independent certified
public accountant or by an appraiser, investment banker, compensation
consultant, or other expert selected with reasonable care by the Company or the
Board of Directors or any committee of the Board of Directors. The provisions
of this Section 32 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. Whether or not the foregoing provisions of this
Section are satisfied, it shall in any event be presumed that Indemnitee has at
all times acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Company.

 


13










 











 


 



 


 


 


 


IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.

 


	
		COMPANY:
	

PRO-DEX,
INC.

a Colorado corporation





By:                                                                                          



    Its:                                                                         



Address:

  2361 McGaw Avenue

 Irvine, California 92614






		
	
		 
	

 


		
	
		INDEMNITEE: 
	


                                                                                    


		
	
		 
	

(signature)


		
	
		 
	

__________________________________________


		
	
		 
	

(print
name)     

	
		 
	
		 

		


 

 

 

 

 


14










 











 


 


 


 


 


EXHIBIT A


UNDERTAKING AGREEMENT


THIS UNDERTAKING AGREEMENT is made on ___________________,
between PRO-DEX, INC., a Colorado corporation (the “Company”) and __________________________,
an officer and/or member of the Board of Directors of the Company (“Indemnitee”).


WHEREAS, Indemnitee may become involved in investigations,
claims, actions, suits or proceedings which have arisen or may arise in the
future as a result of Indemnitee’s service to the Company; and


WHEREAS, Indemnitee desires that the Company pay any and all
expenses (including, but not limited to, attorneys’ fees and court costs)
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
defending or investigating any such suits or claims and that such payment be
made in advance of the final disposition of such investigations, claims,
actions, suits or proceedings to the extent that Indemnitee has not been
previously reimbursed by insurance; and


WHEREAS, the Company is willing to make such payments but, in
accordance with Section 7-109-104(b) of the Colorado Revised Statutes, the
Company may make such payments only if it receives an undertaking to repay from
Indemnitee; and


WHEREAS, Indemnitee is willing to give such an undertaking;


NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:


1.                 
In regard to any payments made by the Company to Indemnitee pursuant to
the terms of the Indemnification Agreement dated ____________________, 2002,
between the Company and Indemnitee, Indemnitee hereby undertakes and agrees to
repay to the Company any and all amounts so paid promptly and in any event
within thirty (30) days after the disposition, including any appeals, of any
litigation or threatened litigation on account of which payments were made, but
only to the extent that Indemnitee is ultimately found not entitled to be
indemnified by the Company under the Indemnification Agreement, the Bylaws of
the Company and the Colorado Revised Statutes, or other applicable law.


2.                 
This Agreement shall not affect in any manner rights which Indemnitee
may have against the Company, any insurer or any other person to seek
indemnification for or reimbursement of any expenses referred to herein or any
judgment which may be rendered in any litigation or proceeding.

 

 

 


15










 











 


 


 


 


 


 


IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed on the date first above written.

 

	
		COMPANY:
	

PRO-DEX,
INC.

a Colorado corporation





By:                                                                                          



    Its:                                                                         



Address:

  2361 McGaw Avenue

 Irvine, California 92614






		
	
		 
	

 


		
	
		INDEMNITEE: 
	


                                                                                    


		
	
		 
	

(signature)


		
	
		 
	

__________________________________________


		
	
		 
	

(print
name)     

	
		 
	
		 

		



 

 


16