INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, made and entered into as of this _____ day
of ______________, 2001 ("Agreement"), by and between Immucor, Inc., a Georgia
corporation (the "Corporation"), and ("Indemnitee").
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined that the ability to attract and retain highly competent persons as
directors, officers, or in other capacities is in the best interests of the
Corporation's shareholders and that such persons should be assured that they
will have protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation to
obligate itself contractually to indemnify such persons to the fullest extent
permitted by applicable law, so that such persons will serve or continue to
serve the Corporation free from undue concern that they will not be adequately
indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of any
rights granted under the Articles of Incorporation of the Corporation or the
By-Laws of the Corporation and any resolutions adopted pursuant thereto shall
not be deemed to be a substitute therefor nor to diminish or abrogate any rights
of Indemnitee thereunder, and
NOW, THEREFORE, in consideration of Indemnitee's service to the
Corporation, the premises and the covenants contained herein, the Corporation
and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Corporate Status" means the status of a person who is or was a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the
Corporation.
(b) "Disinterested Director" shall have the meaning given such term by Section
850 of the Georgia Business Corporation Code (the "GBCC").
(c) "Expenses" means all reasonable attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a Proceeding.
(d) "Proceeding" means any threatened or pending claim, action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative and whether formal or informal.
Section 2. Indemnification - General. The Corporation shall indemnify, and
advance Expenses to, Indemnitee as provided in this Agreement to the fullest
extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may thereafter from time to time permit. The
rights of Indemnitee provided under the preceding sentence shall include, but
shall not be limited to, the rights set forth in the other Sections of this
Agreement.
Section 3. Indemnification for Proceedings. The Corporation shall indemnify the
Indemnitee against Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with any Proceeding if the Indemnitee is a party to the Proceeding
because of his Corporate Status, provided that the Indemnitee conducted himself
in good faith, and (a) the Indemnitee reasonably believed: (i) in the case of
conduct in his official capacity, that such conduct was in the best interests of
the Corporation; (ii) in all other cases, that such conduct was at least not
opposed to the best interests of the Corporation; and (b) in the case of any
criminal proceeding, the Indemnitee had no reasonable cause to believe such
conduct was unlawful. Notwithstanding the foregoing, no indemnification shall be
made in connection with any Proceeding with respect to conduct for which he was
adjudged liable on the basis that he improperly received personal benefit,
whether or not involving action in his professional capacity, or if applicable
law prohibits such indemnification.
Section 4. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 5. Advancement of Expenses. The Corporation shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding to
which he is a party by reason of his Corporate Status, within twenty days after
the receipt by the Corporation of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall include
a written affirmation of his good faith belief that he has met all relevant
standards of conduct set forth in Section 3 shall be accompanied by reasonable
evidence of the Expenses incurred by Indemnitee, and shall include or be
preceded or accompanied by an undertaking in the form prescribed by Section
853(a)(2) of the GBCC, 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.
Section 6. Limitations. Notwithstanding anything to the contrary contained in
this Agreement, the Corporation shall have no obligation under this Agreement to
make any payment to Indemnitee with respect to Expenses, judgments, penalties,
fines and amounts paid in settlement: (a) on account of any claim against
Indemnitee for an accounting of profits made from the purchase or sale of
securities of the Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or the similar provisions
of any other applicable law; (b) on account of any claim against Indemnitee
arising out of the trading of the Corporation stock while possessing material
non-public information, whether pursuant to the Xxxxxxx Xxxxxxx Sanctions Act of
1984 or otherwise; (c) if a final judgment or other final adjudication by a
court having jurisdiction in the matter shall determine that such indemnity is
not lawful; (d) in respect to remuneration paid to Indemnitee if a final
judgment or other final adjudication by a court having jurisdiction in the
matter shall determine that such remuneration was not lawful; (e) for any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (f) for acts or omissions which involve intentional misconduct or a
knowing violation of law; (g) for unlawful distributions as set forth in GBCC
Section 14-2-832 (or any successor provision); (h) for any transaction from
which he received an improper personal benefit.; or (i) with respect to any
Proceeding, or any claim therein, brought or made by Indemnitee against the
Corporation.
Section 7. Non-Exclusivity, Survival of Rights, Insurance, Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled under applicable
law, the Articles of Incorporation or the By-Laws of the Corporation, any
agreement, a vote of shareholders for a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or any
provision hereof shall be effective as to any Indemnitee with respect to
any action taken or omitted by such Indemnitee in his Corporate Status
prior to such amendment, alteration or repeal.
(b) In the event of any payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as
are necessary to enable the Corporation to bring suit to enforce such
rights.
(c) The Corporation shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
Section 8. Duration of Agreement; Assignment. This Agreement shall continue
until and terminate upon the later of: (a) five years after the date that
Indemnitee shall have ceased to serve as a director, officer, employee, agent or
fiduciary of the Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which Indemnitee
served at the request of the Corporation; or (b) the final termination of all
pending Proceedings in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder . This Agreement shall be
binding upon the Corporation and its successors and assigns and shall inure to
the benefit of Indemnitee and his heirs, executors and administrators. Any
purported assignment of this Agreement or any of the rights or obligations
hereunder by Indemnitee shall be void. In addition to the rights granted to
Indemnitee under this Agreement, Indemnitee shall also have the benefit of any
indemnification more favorable to a director of the Corporation granted in a
contract of indemnification to any current member of the Board of Directors of
the Corporation.
Section 9. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable) that is not itself invalid, illegal or
unenforceable shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 10. Counterparts. This Agreement may be executed in one or more
counterparts, including counterparts signed and delivered by fax, each of which
shall for all purposes be deemed to be an original but all of which together
shall constitute one and the same Agreement. Only one such counterpart signed by
the party against whom enforceability is sought needs to be produced to evidence
the existence of this Agreement.
Section 11. Headings. The headings of the paragraphs 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.
Section 12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
Section 13. Notification and Defense of Claims.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any
action, suit or proceeding, Indemnitee will, if a claim in respect thereto is to
be made against the Corporation under this Agreement, notify the Corporation of
the commencement thereof. The failure so to notify the Corporation will not
relieve the Corporation from any liability which it may have to Indemnitee
otherwise than under this Agreement. With respect to any such action, suit or
proceeding as to which Indemnitee so notifies the Corporation: (i) the
Corporation will be entitled to participate therein at its own expense; and (ii)
except as otherwise provided below, to the extent that it may wish, the
Corporation may assume the defense thereof.
(b) After notice from the Corporation to Indemnitee of its election to assume
the defense thereof, the Corporation will not be liable to Indemnitee under this
Agreement or otherwise for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ counsel of his choosing in such action, suit or proceeding but the fees
and expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized in writing by
the Corporation, (ii) the Corporation and Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee in the conduct of the defense of such action, or (iii) the
Corporation shall have failed or refused to employ counsel to assume the defense
of such action, in each of which cases the reasonable fees and expenses of
Indemnitee's counsel shall be paid by the Corporation.
(c) The Corporation shall not be liable to Indemnitee under this Agreement for
any amounts paid in settlement of any threatened or pending action, suit or
proceeding without its prior written consent. The Corporation shall not settle
any such action, suit or proceeding in any manner which would impose any penalty
or limitation on Indemnitee without Indemnitee's prior written consent. Neither
the Corporation nor Indemnitee will unreasonably withhold his or its consent to
any proposed settlement.
Section 14. Securities and Exchange Commission. Indemnitee acknowledges that the
Securities and Exchange Commission ("SEC") has expressed its opinion that
indemnification of directors and officers from liabilities under the Securities
Act of 1933 (the "Act") is against public policy and therefore unenforceable.
Indemnitee hereby agrees that it will not be a breach of this Agreement for the
Corporation to agree with the SEC in connection with the registration for sale
of any stock or other securities of the Corporation from time to time that, in
the event that a claim for indemnification against such liabilities (other than
the payment by the Corporation of expenses incurred or paid by a director or
officer of the Corporation in the successful defense of any action, suit or
proceeding) is asserted in connection with such stock or other securities being
registered, the Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of competent
jurisdiction the question of whether or not such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue. Indemnitee further agrees that such submission to a
court of competent jurisdiction shall not be a breach of this Agreement.
Section 15. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed, (a),
if to Indemnitee, to the address designated by Indemnitee for such purpose set
forth under his signature, and (b), if to the Corporation, to:
Immucor, Inc.
X.X. Xxx 0000
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
Section 16. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Georgia.
Section 17. Approval by Board of Directors. The obligations of the Corporation
under this Agreement shall become effective upon the approval of the terms and
conditions of this Agreement by the board of directors of the Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
IMMUCOR, INC. INDEMNITEE:
By:
Xxxxxx X. Xxxxxx,
Chief Executive Officer
Address for notice:
