5
INDEMNIFICATION AGREEMENT
-------------------------
AGREEMENT dated August 10,1999, between NEW BRUNSWICK SCIENTIFIC CO., INC.,
a New Jersey corporation (the "Corporation") and Xxxxxxx Xxxxxxxx (the
"Director").
WHEREAS, the Director is a member of the board of directors of the
Corporation and an officer of the Corporation; and
WHEREAS, proceedings based upon the Director's performance of his duties
may be brought from time to time against or involving him; and
WHEREAS, the Corporation recognizes that the threat of such proceedings
might inhibit the Director in his performance of his duties and/or cause the
Director to cease serving as a director of the Corporation; and
WHEREAS, to reduce any such inhibition, the Corporation wishes to indemnify
the Director against liabilities he may incur as a result of certain
proceedings, as well as expenses he may incur in his defense in such
proceedings; and
WHEREAS, in certain proceedings involving claims relating to the Employee
Retirement Income Security Act of 1974, as amended, Federal law may apply to
limit the permissible scope of indemnification; and
NOW, THEREFORE, the parties hereto, for valuable consideration, incident to
the Director's service to, and to induce the continued service of the Director
to the Corporation, agree as follows:
1
ARTICLE I
---------
DEFINITIONS
-----------
1.1 Proceeding. "Proceeding" shall mean any pending, threatened or
----------
completed civil, criminal, administrative or arbitrative action, suit or
proceeding, any appeal from any such action, suit or proceeding, and any inquiry
or investigation which could lead to any such action, suit or proceeding.
1.2 Expenses. "Expenses" shall mean reasonable costs, disbursements
--------
and counsel fees.
1.3 Liabilities. "Liabilities" shall mean amounts paid or incurred in
-----------
satisfaction or settlements, judgments, fines and penalties.
1.4 Derivative Suit. "Derivative Suit" shall mean a Proceeding against
---------------
the Director brought by or in the right of the Corporation, which involves the
Director by reason of his being or having been a director, officer or agent of
the Corporation or a subsidiary thereof.
1.5 Breach Of The Director's Duty of Loyalty. "Breach Of The
----------------------------------------------
Director's Duty Of Loyalty" shall mean an act or omission which that person
knows or believes to be contrary to the best interests of the Corporation or its
Shareholders in connection with a matter in which he has a material conflict of
interest.
1.6 ERISA Suit. "ERISA Suit" shall mean a proceeding against the
-----------
Director brought by or on behalf of a participant(s) or beneficiary of any
employee welfare or pension benefit plan by reason of his being or having been a
Trustee or fiduciary of such plan, or by reason of his actions with respect to
the plan which he has taken in his capacity as a Director.
ARTICLE II
----------
INDEMNIFICATION
---------------
2.1 Personal Liability. The Director shall not be personally liable to
------------------
the Corporation or its stockholders for damages for breach of any duty owed to
the Corporation or its stockholders unless such breach of duty is based upon an
act or omission (a) in Breach Of The
2
Director's Duty Of Loyalty to the
Corporation or its stockholders; (b) not in good faith or involving a knowing
violation of law; or (c) resulting in receipt by the Director of an improper
personal benefit.
2.2 Expenses. Unless otherwise expressly prohibited by law, the
--------
Corporation shall indemnify the Director against his Expenses and all
Liabilities in connection with any Proceeding involving the Director, including
a proceeding by or in the right of the Corporation, unless such breach of duty
is based upon an act or omission (a) in Breach Of The Director's Duty Of Loyalty
to the Corporation or its stockholders; (b) not in good faith or involving a
knowing violation of law; or (c) resulting in receipt by the Director of an
improper personal benefit.
2.3 Advancement of Expenses. The Corporation shall advance or pay
-------------------------
those Expenses incurred by the Director in a Proceeding as and when incurred,
provided, however, that the Director shall, as a condition to receipt of such
------ -------
advances, undertake to repay all amounts advanced if it shall finally be
adjudicated that the breach of duty by the Director was based on an act or
omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or
its stockholders; (b) not in good faith or involving a knowing violation of the
law; or (c) resulting in receipt of an improper personal benefit.
ARTICLE III
-----------
INDEMNIFICATION FOR ERISA SUITS
-------------------------------
3.1 Indemnification. The Corporation shall, to the extent
---------------
indemnification is not available to the Director under Article II of this
Agreement, indemnify the Director against any and all Liabilities and Expenses
which he may incur in connection with any ERISA Suit, if:
(a) he acted in good faith, and
(b) in a manner which did not constitute a breach of fiduciary
obligations as defined by the Employee Retirement Income Security Act, 29 U.S.C.
1101-1114.
3
3.2 No Presumption. The termination of any proceeding in connection
---------------
with any ERISA Suit by judgment, order or settlement should not of itself create
a presumption that the Director did not meet the applicable standards of conduct
set forth in subparagraphs (a) and (b) above.
3.3 Determination. Any determination concerning whether the Director
-------------
met the standards of conduct set forth in subparagraphs 3.1(a) and (b) above
shall be made:
(a) by the Board of Directors of the Corporation or a committee
thereof acting by a majority vote of a quorum consisting of directors who were
not parties to or otherwise involved in the proceeding; or
(b) by the Shareholders, if provided by the Certificate of
Incorporation, the by-laws of the Corporation, or a resolution of either the
Board of Directors or the Shareholders of the Corporation; or
(c) by independent legal counsel in a written opinion, if a quorum
of the Board of Directors cannot be obtained, or if a quorum of the Board of
Directors or a committee thereof by a majority vote of the disinterested
directors so directs. Such counsel shall be designated by the Board of
Directors.
ARTICLE IV
----------
MISCELLANEOUS
-------------
4.1 Agreement Effective Despite Service Prior to Effective Date and
-------------------------------------------------------------------
After Termination of Director. This Agreement shall be effective without regard
--------------------------
to the service of the Director as a Director of the Corporation prior to the
date hereof and this Agreement shall remain effective notwithstanding the
removal, resignation, death or other termination of the Director from any
position with the Corporation.
4.2 Binding Effect Upon Successors of Corporation. This Agreement
--------------------------------------------------
shall bind the Corporation, its successors and assigns.
4
4.3 Insurance. The Corporation, at its sole discretion, may purchase
---------
and maintain insurance on behalf of the Director.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC.
______________________ By:_______________________________________
________________________________________
5
5
INDEMNIFICATION AGREEMENT
-------------------------
AGREEMENT dated August 10,1999, between NEW BRUNSWICK SCIENTIFIC CO., INC.,
a New Jersey corporation (the "Corporation") and Xxxxx Xxxxxxxxx (the
"Director").
WHEREAS, the Director is a member of the board of directors of the
Corporation and an officer of the Corporation; and
WHEREAS, proceedings based upon the Director's performance of his duties
may be brought from time to time against or involving him; and
WHEREAS, the Corporation recognizes that the threat of such proceedings
might inhibit the Director in his performance of his duties and/or cause the
Director to cease serving as a director of the Corporation; and
WHEREAS, to reduce any such inhibition, the Corporation wishes to indemnify
the Director against liabilities he may incur as a result of certain
proceedings, as well as expenses he may incur in his defense in such
proceedings; and
WHEREAS, in certain proceedings involving claims relating to the Employee
Retirement Income Security Act of 1974, as amended, Federal law may apply to
limit the permissible scope of indemnification; and
NOW, THEREFORE, the parties hereto, for valuable consideration, incident to
the Director's service to, and to induce the continued service of the Director
to the Corporation, agree as follows:
1
ARTICLE I
---------
DEFINITIONS
-----------
1.1 Proceeding. "Proceeding" shall mean any pending, threatened or
----------
completed civil, criminal, administrative or arbitrative action, suit or
proceeding, any appeal from any such action, suit or proceeding, and any inquiry
or investigation which could lead to any such action, suit or proceeding.
1.2 Expenses. "Expenses" shall mean reasonable costs, disbursements
--------
and counsel fees.
1.3 Liabilities. "Liabilities" shall mean amounts paid or incurred in
-----------
satisfaction or settlements, judgments, fines and penalties.
1.4 Derivative Suit. "Derivative Suit" shall mean a Proceeding against
---------------
the Director brought by or in the right of the Corporation, which involves the
Director by reason of his being or having been a director, officer or agent of
the Corporation or a subsidiary thereof.
1.5 Breach Of The Director's Duty of Loyalty. "Breach Of The
----------------------------------------------
Director's Duty Of Loyalty" shall mean an act or omission which that person
knows or believes to be contrary to the best interests of the Corporation or its
Shareholders in connection with a matter in which he has a material conflict of
interest.
1.6 ERISA Suit. "ERISA Suit" shall mean a proceeding against the
-----------
Director brought by or on behalf of a participant(s) or beneficiary of any
employee welfare or pension benefit plan by reason of his being or having been a
Trustee or fiduciary of such plan, or by reason of his actions with respect to
the plan which he has taken in his capacity as a Director.
ARTICLE II
----------
INDEMNIFICATION
---------------
2.1 Personal Liability. The Director shall not be personally liable to
------------------
the Corporation or its stockholders for damages for breach of any duty owed to
the Corporation or its stockholders unless such breach of duty is based upon an
act or omission (a) in Breach Of The
2
Director's Duty Of Loyalty to the
Corporation or its stockholders; (b) not in good faith or involving a knowing
violation of law; or (c) resulting in receipt by the Director of an improper
personal benefit.
2.2 Expenses. Unless otherwise expressly prohibited by law, the
--------
Corporation shall indemnify the Director against his Expenses and all
Liabilities in connection with any Proceeding involving the Director, including
a proceeding by or in the right of the Corporation, unless such breach of duty
is based upon an act or omission (a) in Breach Of The Director's Duty Of Loyalty
to the Corporation or its stockholders; (b) not in good faith or involving a
knowing violation of law; or (c) resulting in receipt by the Director of an
improper personal benefit.
2.3 Advancement of Expenses. The Corporation shall advance or pay
-------------------------
those Expenses incurred by the Director in a Proceeding as and when incurred,
provided, however, that the Director shall, as a condition to receipt of such
------ -------
advances, undertake to repay all amounts advanced if it shall finally be
adjudicated that the breach of duty by the Director was based on an act or
omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or
its stockholders; (b) not in good faith or involving a knowing violation of the
law; or (c) resulting in receipt of an improper personal benefit.
ARTICLE III
-----------
INDEMNIFICATION FOR ERISA SUITS
-------------------------------
3.1 Indemnification. The Corporation shall, to the extent
---------------
indemnification is not available to the Director under Article II of this
Agreement, indemnify the Director against any and all Liabilities and Expenses
which he may incur in connection with any ERISA Suit, if:
(a) he acted in good faith, and
(b) in a manner which did not constitute a breach of fiduciary
obligations as defined by the Employee Retirement Income Security Act, 29 U.S.C.
1101-1114.
3
3.2 No Presumption. The termination of any proceeding in connection
---------------
with any ERISA Suit by judgment, order or settlement should not of itself create
a presumption that the Director did not meet the applicable standards of conduct
set forth in subparagraphs (a) and (b) above.
3.3 Determination. Any determination concerning whether the Director
-------------
met the standards of conduct set forth in subparagraphs 3.1(a) and (b) above
shall be made:
(a) by the Board of Directors of the Corporation or a committee
thereof acting by a majority vote of a quorum consisting of directors who were
not parties to or otherwise involved in the proceeding; or
(b) by the Shareholders, if provided by the Certificate of
Incorporation, the by-laws of the Corporation, or a resolution of either the
Board of Directors or the Shareholders of the Corporation; or
(c) by independent legal counsel in a written opinion, if a quorum
of the Board of Directors cannot be obtained, or if a quorum of the Board of
Directors or a committee thereof by a majority vote of the disinterested
directors so directs. Such counsel shall be designated by the Board of
Directors.
ARTICLE IV
----------
MISCELLANEOUS
-------------
4.1 Agreement Effective Despite Service Prior to Effective Date and
-------------------------------------------------------------------
After Termination of Director. This Agreement shall be effective without regard
--------------------------
to the service of the Director as a Director of the Corporation prior to the
date hereof and this Agreement shall remain effective notwithstanding the
removal, resignation, death or other termination of the Director from any
position with the Corporation.
4.2 Binding Effect Upon Successors of Corporation. This Agreement
--------------------------------------------------
shall bind the Corporation, its successors and assigns.
4
4.3 Insurance. The Corporation, at its sole discretion, may purchase
---------
and maintain insurance on behalf of the Director.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC.
______________________ By:_______________________________________
________________________________________
5
