Exhibit 10.3


 


EXECUTION


 


INDEMNIFICATION AGREEMENT


 


This
Indemnification Agreement (“Agreement”) is entered into as of the 26th
day of March, 2009 by and between Clarient, Inc. a Delaware corporation
(the “Company”) and
                            (“Indemnitee”).


 


RECITALS


 


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.                                    Indemnitee is
an officer of the investment manager of Oak Investment Partners XII, Limited
Partnership, a Delaware limited partnership (the “Fund”), and has agreed
to serve as a director of the Company in connection with the Fund’s investment
in the Company.


 


E.                                      The Company
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, wishes to provide
for the indemnification and advancing of expenses to Indemnitee to the maximum
extent permitted by law.


 


F.                                      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:


 


1.                                      Indemnification.


 


1.1                               Indemnification of Expenses.  The Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee was or is or
becomes a party to or witness or 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 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, 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, 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 (hereinafter an “Indemnifiable Event”) against any and all
expenses (including reasonable attorneys’ fees and all other costs, expenses
and obligations incurred in connection with 


 


 

















 


investigating, defending, being 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.  Such
payment of Expenses shall be made by the Company as soon as practicable but in
any event no later than thirty (30) days after written demand by Indemnitee
therefor is presented to the Company, unless a determination is made by the
Reviewing Party within said thirty day period that Indemnitee is not entitled
to be indemnified under applicable law.


 


1.2                               Reviewing Party.  Notwithstanding the
foregoing, (i) the obligations of the Company under Section 1.1 shall
be subject to the condition that the Reviewing Party (as described in Section 9.5
hereof) shall not have determined (in a written opinion, in any case in which
the Independent Legal Counsel referred to in Section 1.3 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law (i.e., the Reviewing Party shall have determined that Indemnitee
has met the applicable standards set forth in Section 145(a) and (b) of
the Delaware General Corporation Law (“DGCL”) or successor provisions),
and (ii) the obligation of the Company to make an advance payment of
Expenses to Indemnitee pursuant to Section 2.1 (an “Expense Advance”)
shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company
for any Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).  Indemnitee’s obligation to
reimburse the Company for any Expense Advance shall be unsecured and no
interest shall be charged thereon.  If
there has not been a Change in Control (as defined in Section 9.3 hereof),
the Reviewing Party shall be selected by the Company’s Board of Directors, and
if there has been such a Change in Control (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), the Reviewing
Party shall be the Independent Legal Counsel referred to in Section 1.3
hereof.  If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and the Company hereby consents to service of
process and to appear in any such proceeding. 
Any determination by the Reviewing Party otherwise shall be conclusive
and binding on the Company and Indemnitee.


 


2

















 


1.3                               Change in Control.  The Company agrees
that if there is a Change in Control of the Company then, with respect to all
matters thereafter arising concerning the rights of Indemnitees to payments of
Expenses and Expense Advances 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 9.4 hereof)
shall be selected by the Company and approved by the Indemnitee (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 and, subject to the other
provisions hereof, the Company and Indemnitee agree to abide by such
opinion.  The Company agrees 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 reasonable
attorneys’ fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.


 


1.4                               Mandatory Payment of Expenses.  Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit,
proceeding, inquiry or investigation referred to in Section 1.1 hereof or
in the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in connection with such
successful claims, issues or matters, but only to the extent permitted to be so
indemnified under applicable law (i.e., only to the extent such Expenses or
portions thereof are indemnifiable pursuant to the applicable provisions of Section 145(a) or
(b) of the DGCL or successor provisions).


 


2.                                      Expenses; Indemnification Procedure.


 


2.1                               Advancement of Expenses.  The Company shall
advance all Expenses incurred by Indemnitee. 
The advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than thirty (30)
days after written demand by Indemnitee therefor to the Company.  Such demand or demands shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded
or accompanied by a written undertaking by or on behalf of Indemnitee to repay
any Expenses advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses.  If the Company makes an advance of Expenses
pursuant to this Section 2.1, the Company shall be subrogated to every
right of recovery that Indemnitee may have against any insurance carrier from
whom the Company has purchased insurance for such purpose.


 


2.2                               Notice/Cooperation by Indemnitee.  Indemnitee shall, as
a condition precedent to Indemnitee’s right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement.  Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other
address as the Company shall designate in writing to Indemnitee).  In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee’s power; provided, however, the Indemnitee shall be
able to limit such information and such cooperation to the extent necessary to
protect the Indemnitee’s Fifth Amendment rights in a criminal proceeding.


 


3

















 


2.3                               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
contendere, 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 addition, neither the
failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under applicable law, shall
be a defense to Indemnitee’s claim or create a presumption that Indemnitee has
not met any particular standard of conduct or did not have any particular
belief.  In connection with any
determination by the Reviewing Party or otherwise 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.


 


2.4                               Notice to Insurers.  If, at the time of
the receipt by the Company of a notice of a Claim pursuant to Section 2.2
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.


 


2.5                               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 Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to Indemnitee of written notice of its election so to do.  After delivery of such notice, approval of
such counsel by 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) Indemnitee shall have the right to employ Indemnitee’s
counsel in any such Claim at Indemnitee expense and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense, or (C) the Company shall not continue to retain such counsel
to defend such Claim, then the fees and expenses of Indemnitee counsel shall be
at the expense of the Company.  The
Company shall have the right to conduct such defense as it sees fit in its sole
discretion, including the right to settle any claim against Indemnitee without
the consent of the Indemnitee.


 


3.                                      Additional Indemnification Rights;
Nonexclusivity.


 


3.1                               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 Delaware 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 Delaware 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 8.1 hereof.


 


4

















 


3.2                               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 stockholders or disinterested directors,
the DGCL, 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 Indemnitee may have ceased to serve in such capacity.


 


4.                                      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 Indemnitee has otherwise actually
received payment (under any insurance policy, Certificate of Incorporation,
Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.  The Company acknowledges and agrees that while
under certain circumstances Indemnitee may be entitled to indemnification and
expense advancement and/or reimbursement from the Fund and/or its general
partner or other affiliates thereof (collectively, “Fund Related Parties”)
in connection with Claims made against Indemnitee, the obligations of the
Company hereunder with respect to any Claim are primary to any obligations of
any Fund Related Party with respect thereto and Indemnitee will not be
obligated to, and has no right to, seek indemnification from or expense
advancements or reimbursement by any Fund Related Party with respect to any
Claim unless and until the Company shall have fulfilled its obligations
hereunder, including with respect to any insurance provided pursuant hereto or
otherwise.  In addition, the Company, on
behalf of itself and any insurer’s providing liability insurance as provided in
Section 7 hereof, hereby waives any rights of contribution from or
against each and every Fund Related Party with respect to any Claim.  Each of the Fund Related Parties is an
intended third party beneficiary of this Agreement and the Company agrees to
take such further action as may be requested by any Fund Related Party to
effectuate the contractual arrangement between the Company and the Fund Related
Parties as set forth herein.


 


5.                                      Partial Indemnification.  If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a 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.


 


6.                                      Mutual Acknowledgement.  Both the Company and
Indemnitee acknowledge that in certain instances, federal law or applicable
public policy may prohibit the Company from indemnifying its directors,
officers, employees, agents or fiduciaries under this Agreement or
otherwise.  Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future
to undertake with the Securities and Exchange Commission to submit the question
of indemnification to a court in certain circumstances for a determination of
the Company’s right under public policy to indemnify Indemnitee.


 


7.                                      Liability Insurance.  To the extent the
Company maintains liability insurance applicable to directors, officers,
employees, agents or fiduciaries, Indemnitee shall be covered by such policies
in such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company’s key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.


 


5

















 


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


 


8.1                               Excluded Action or Omissions.  To indemnify
Indemnitee for Indemnitee’s acts, omissions or transactions (which acts,
omissions or transactions shall have been acknowledged and not disputed by the
Indemnitee or shall have been determined by a court of competent jurisdiction)
from which Indemnitee or the Indemnitee may not be relieved of liability under
applicable law;


 


8.2                               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 brought to establish or enforce a right to
indemnification under this Agreement or any other agreement or insurance policy
or under the Company’s Certificate of Incorporation or Bylaws now or hereafter
in effect relating to Claims for Indemnifiable Events, (ii) in specific
cases if the Company’s Board of Directors has approved the initiation or
bringing of such Claim, or (iii) as otherwise required under Section 145
of the DGCL, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be;


 


8.3                               Lack of Good Faith.  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 not made in good faith or
was frivolous;


 


8.4                               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 (the “Exchange Act”), or
any similar successor statute;


 


8.5                               Fraudulent Conduct.  To indemnify Indemnitee for any Expenses,
judgments, fines or penalties resulting from Indemnitee’s conduct which is
finally adjudged to have been willful misconduct or knowingly fraudulent; or


 


8.6                               Unlawful Payment.  If a court of
competent jurisdiction finally determines that such payment hereunder is
unlawful.


 


9.                                      Construction of Certain Phrases.


 


9.1                               Company.  References to “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 or fiduciary of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise, 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.


 


6

















 


9.2                               Other Enterprises.  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.


 


9.3                               Change in Control.  A “Change in Control”
shall be deemed to have occurred if after the date hereof:


 


(i)                                     any person other than the Fund becomes the “beneficial owner”
(as that term is defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities representing fifty percent (50%) or more of the
total voting power of the Company’s then-outstanding voting securities;


 


(ii)                                  during any period of two (2) consecutive years,
individuals who, at the beginning of such period constitute the board, together
with any new director whose election by the board or nomination for election by
the Company’s stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then in office either who were directors at the beginning of
the two-year period, or whose election or nomination was previously so
approved, cease for any reason to constitute a majority of the board;


 


(iii)                               the stockholders of the Company approve a merger or
consolidation of the Company with any other company, other than a merger or
consolidation that would result in the voting securities of the Company
outstanding immediately before such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty-one percent (51%) 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


 


(iv)                              the stockholders of the Company approve a plan of complete
liquidation of the Company, or an agreement for the sale or disposition by the
Company (whether in one transaction or a series of transactions) of all or
substantially all of the Company’s assets.


 


9.4                               Independent Legal Counsel.  “Independent Legal
Counsel” shall mean an attorney or firm of attorneys, selected in accordance
with the provisions of Section 1.3 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 rights of Indemnitee under
this Agreement, or of other indemnitees under similar indemnity agreements).


 


9.5                               Reviewing Party.  A “Reviewing Party”
shall mean any appropriate person or body consisting of a member or members of
the Company’s Board of Directors or any other person or body appointed by the
Company’s Board of Directors who is not a party to the particular Claim for
which Indemnitee is seeking indemnification, or Independent Legal Counsel.


 


7

















 


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


 


11.                               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 or fiduciary of the Company or of any other enterprise at the
Company’s request.


 


12.                               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, 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, 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 material defenses to such action
was made in bad faith or was frivolous.


 


13.                               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 of deposit
with Federal Express or similar overnight courier, freight prepaid, or (d) one
day after the business day of delivery by facsimile transmission, if delivered
by facsimile transmission, with copy by first class mail, postage prepaid, and
shall be addressed if to Indemnitee, at the Indemnitee address as set forth
beneath Indemnitee signatures 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 (10) days’ advance written notice to the other
party hereto.


 


8

















 


14.                               Consent to Jurisdiction.  The Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall
be brought only in the Chancery Court of the State of Delaware (the “Delaware
Court”), and not in any other state or federal court in the United States
of America or any court in any other country, (ii) consent to submit to
the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive
any objection to the laying of venue of any such action or proceeding in the
Delaware Court and (iv) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.


 


15.                               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.


 


16.                               Choice of Law.  This Agreement shall
be governed by and its provisions 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 the State of
Delaware, without regard to the conflict of laws principles thereof.


 


17.                               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; provided, however that the
Company expressly waives any rights of subrogation with respect to any rights
of recovery of Indemnitee against any Fund Related Party or any insurer
providing liability insurance in respect of or in support of any such
obligations of a Fund Related Party.


 


18.                               Amendment and Termination.  No supplement,
amendment, modification, termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both 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.


 


19.                               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.


 


20.                               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.


 


21.                               Headings.  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.


 


[Remainder of Page Intentionally
Left Blank]


 


9

















 


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


 




	
  CLARIENT, INC.

  	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


10