INDEMNIFICATION AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made and entered into as of September 1, 2007
between Auriga Laboratories, Inc., a Delaware corporation (“the Company”), and
Xxxxx Xxxxxx, its affiliates, directors, officers, employees, members or agents
(collectively the “Indemnitee”).
WITNESSETH
THAT:
WHEREAS,
Indemnitee performs a valuable service for the Company; and
WHEREAS,
the Board of Directors of the Company has adopted Bylaws (the “Bylaws”)
providing for the indemnification of the officers and directors of the Company
to the maximum extent authorized by law (“Law”); and
WHEREAS,
the Bylaws and the Law, by their nonexclusive nature, permit contracts between
the Company and the officers or directors of the Company with respect to
indemnification of such officers or directors; and
WHEREAS,
in accordance with the authorization as provided by the Law, the Company has
purchased and maintains a policy or policies of directors’ and officers’
liability insurance (“D & O Insurance”), covering certain
liabilities which may be incurred by its officers or directors in the
performance of their obligations to the Company;
NOW,
THEREFORE, in consideration of Indemnitee’s service as an officer or director
after the date hereof, the parties hereto agree as follows:
1. Indemnity
of Indemnitee.
The
Company hereby agrees to hold harmless and indemnify Indemnitee to the full
extent authorized or permitted by the provisions of the Law, as such may be
amended from time to time, and the Company’s Bylaws, as such may be amended. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) Proceedings
Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section l(a) if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or participant in
any
Proceeding (as hereinafter defined) other than a Proceeding by or in the right
of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as hereinafter defined), judgments, penalties, fines
and
amounts paid in settlement actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to
be
in or not opposed to the best interests of the Company, and with respect to
any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Proceedings
by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of his Corporate Status, he is, or is threatened
to
be made, a party to or participant in any Proceeding brought by or in the right
of the Company. Pursuant to this Section 1(b), Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by him, or on his behalf,
in connection with such Proceeding if he acted in good faith and in a manner
he
reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, if applicable law so provides, no indemnification
against such Expenses shall be made in respect of any claim, issue or matter
in
such Proceeding as to which Indemnitee shall have been adjudged to be liable
to
the Company unless and to the extent that the Court of Chancery of the State
of
Delaware shall determine that such indemnification may be made.
(c) Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. If Indemnitee is
not
wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section
and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
2. Additional
Indemnity.
In
addition to, and without regard to any limitations on, the indemnification
provided for in Section 1 of this Agreement, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to or participant in any Proceeding (including
a
Proceeding by or in the right of the Company), including, without limitation,
all liability arising out of the negligence or active or passive wrongdoing
of
Indemnitee. The only limitation that shall exist upon the Company’s obligations
pursuant to this Agreement shall be that the Company shall not be obligated
to
make any payment to Indemnitee that is finally determined (under the procedures,
and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be
unlawful under Delaware law.
3. Contribution
in the Event of Joint Liability.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is available,
in
respect of any threatened, pending or completed action, suit or proceeding
in
which the Company is jointly liable with Indemnitee (or would be if joined
in
such action, suit or proceeding), the Company shall pay, in the first instance,
the entire amount of any judgment or settlement of such action, suit or
proceeding without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it may have
against Indemnitee. The Company shall not enter into any settlement of any
action, suit or proceeding in which the 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.
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(b) Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be
required to pay all or any portion of any judgment or settlement in any
threatened, pending or completed action, suit or proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), the Company shall contribute to the amount of expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction from which
such action, suit or proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such
action, suit or proceeding), on the one hand, and Indemnitee, on the other
hand,
in connection with the events that resulted in such expenses, judgments, fines
or settlement amounts, as well as any other equitable considerations which
the
Law may require to be considered. The relative fault of the Company and all
officers, directors or employees of the Company, other than Indemnitee, who
are
jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from
any
claims of contribution which may be brought by officers, directors or employees
of the Company, other than Indemnitee, who may be jointly liable with
Indemnitee.
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
to
which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.
5. Advancement
of Expenses.
Notwithstanding any other provision of this Agreement, the Company shall advance
all Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee’s Corporate Status within ten (10) days after
the receipt by the Company 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
reasonably evidence the Expenses incurred by Indemnitee and shall include or
be
preceded or accompanied by an 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. Any advances and
undertakings to repay pursuant to this Section 5 shall be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Company to advance
Expenses pursuant to this Section 5 shall be subject to the condition that,
if,
when and to the extent that the Company determines that Indemnitee would not
be
permitted to be indemnified under applicable law, the Company shall be entitled
to be reimbursed, within thirty (30) days of such determination, 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 Company 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 advance of Expenses until a final
judicial determination is made with respect thereto (and as to which all rights
of appeal therefrom have been exhausted or lapsed).
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6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
It is
the intent of this Agreement to secure for Indemnitee rights of indemnity that
are as favorable as may be permitted under the Law and public policy of the
State of Delaware. Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification under this Agreement:
(a) To
obtain
indemnification (including, but not limited to, the advancement of Expenses
and
contribution by the Company) under this Agreement, Indemnitee shall submit
to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt
of
such a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 6(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made in the specific case
by one of the following three methods, which shall be at the election of
Indemnitee: (1) by a majority vote of the disinterested directors, even though
less than a quorum, (2) by independent legal counsel in a written opinion or
(3)
by the stockholders.
(c) If
the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be
selected as provided in this Section 6(c). The Independent Counsel shall be
selected by Indemnitee (unless Indemnitee requests that such selection be made
by the Board of Directors). Indemnitee or the Company, as the case may be,
may,
within 10 days after such written notice of selection shall have been given,
deliver to the Company or to Indemnitee, as the case may be, a written objection
to such selection; provided, however, that such objection may be asserted only
on the ground that the Independent Counsel so selected does not meet the
requirements of “Independent Counsel” as defined in Section 13 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Company or Indemnitee may petition the Court of Chancery of the
State
of Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Company or Indemnitee to the other’s
selection of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
Section 6(b) hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this Section
6(c), regardless of the manner in which such Independent Counsel was selected
or
appointed.
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(d) In
making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement. Anyone seeking
to overcome this presumption shall have the burden of proof and the burden
of
persuasion by clear and convincing evidence.
(e) 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 Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise (as hereinafter defined) in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or records given
or
reports made to the Enterprise by an independent certified public accountant
or
by an appraiser or other expert selected with reasonable care by the Enterprise.
In addition, the knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
Whether or not the foregoing provisions of this Section 6(e) are satisfied,
it shall in any event be presumed that Indemnitee has at all times acted in
good
faith and in a manner he reasonably believed to be in or not opposed to the
best
interests of the Company. Anyone seeking to overcome this presumption shall
have
the burden of proof and the burden of persuasion by clear and convincing
evidence.
(f) If
the
person, persons or entity empowered or selected under Section 6 to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within thirty (30) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a material fact,
or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such 30-day period may be extended for a reasonable time, not
to
exceed an additional fifteen (15) days, if the person, persons or entity making
such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or
information relating thereto; and provided, further, that the foregoing
provisions of this Section 6(g) shall not apply if the determination of
entitlement to indemnification is to be made by the stockholders pursuant to
Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt
by the Company of the request for such determination, the Board of Directors
or
the Disinterested Directors, if appropriate, resolve to submit such
determination to the stockholders for their consideration at an annual meeting
thereof to be held within seventy-five (75) days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is
called within fifteen (15) days after such receipt for the purpose of making
such determination, such meeting is held for such purpose within sixty (60)
days
after having been so called and such determination is made thereat.
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(g) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any Independent Counsel, member of the Board
of
Directors or stockholder of the Company shall act reasonably and in good faith
in making a determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or expenses (including
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(h) The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any action, claim
or
proceeding to which Indemnitee is a party is resolved in any manner other than
by adverse judgment against Indemnitee (including, without limitation,
settlement of such action, claim or proceeding with or without payment of money
or other consideration) it shall be presumed that Indemnitee has been successful
on the merits or otherwise in such action, suit or proceeding. Anyone seeking
to
overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
7. Remedies
of Indemnitee.
(a) In
the
event that (i) a determination is made pursuant to Section 6 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement,
(ii) advancement of Expenses is not timely made pursuant to Section 5 of
this Agreement, (iii) no determination of entitlement to indemnification is
made
pursuant to Section 6(b) of this Agreement within 90 days after receipt by
the
Company of the request for indemnification, (iv) payment of indemnification
is
not made pursuant to this Agreement within ten (10) days after receipt by the
Company of a written request therefor or (v) payment of indemnification is
not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Section 6 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware,
or
in any other court of competent jurisdiction, of his entitlement to such
indemnification. Indemnitee shall commence such proceeding seeking an
adjudication within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 7(a). The Company
shall not oppose Indemnitee’s right to seek any such adjudication.
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(b) In
the
event that a determination shall have been made pursuant to Section 6(b) of
this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 7 shall be conducted in all
respects as a de
novo trial
on
the merits, and Indemnitee shall not be prejudiced by reason of the adverse
determination under Section 6(b).
(c) If
a
determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound
by
such determination in any judicial proceeding commenced pursuant to this Section
7, absent a prohibition of such indemnification under applicable
law.
(d) In
the
event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication
of his rights under, or to recover damages for breach of, this Agreement, or
to
recover under any directors’ and officers’ liability insurance policies
maintained by the Company, the Company shall pay on his behalf, in advance,
any
and all expenses (of the types described in the definition of Expenses in
Section 13 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advancement of expenses or insurance
recovery.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any
such
court that the Company is bound by all the provisions of this
Agreement.
8. Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification 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 certificate of incorporation of the Company, the
Bylaws, any agreement, a vote of stockholders, a resolution of directors or
otherwise. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the Law, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the Bylaws and
this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or
employment of any other right or remedy.
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(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries
of the Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that such person serves at the request
of the Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any director, officer, employee, agent or fiduciary under such
policy or policies.
(c) In
the
event of any 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 papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company 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.
9. Exception
to Right of Indemnification.
Notwithstanding any other provision of this Agreement, Indemnitee shall not
be
entitled to indemnification under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless (a) the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors of the Company or (b) such Proceeding is being brought by Indemnitee
to assert, interpret or enforce his rights under this Agreement.
10. Duration
of Agreement.
All
agreements and obligations of the Company contained herein shall continue during
the period Indemnitee is an officer or director of the Company (or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under Section 7 hereof) by reason of
his
Corporate Status, whether or not he is acting or serving in any such capacity
at
the time any liability or expense is incurred for which indemnification can
be
provided under this Agreement.
11. Security.
To the
extent requested by Indemnitee and approved by the Board of Directors of the
Company, the Company may at any time and from time to time provide security
to
Indemnitee for the Company’s obligations hereunder through an irrevocable bank
line of credit, funded trust or other collateral. Any such security, once
provided to Indemnitee, may not be revoked or released without the prior written
consent of the Indemnitee.
12. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumes the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer or director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as an officer or
director of the Company.
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(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
13. Definitions.
For
purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
that such person is or was serving at the express written request of the
Company.
(b) “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
(c) “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was
serving at the express written request of the Company as a director, officer,
employee, agent or fiduciary.
(d) “Expenses”
shall include 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, participating, or being or preparing to be a witness in a
Proceeding.
(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees of the Independent Counsel referred to above and
to
fully indemnify such counsel against any and all Expenses, claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
(f) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought
by or in the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is or was an
officer or director of the Company, by reason of any action taken by him or
of
any inaction on his part while acting as an officer or director of the Company,
or by reason of the fact that he 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; in each case whether
or
not he is acting or serving in any such capacity at the time any liability
or
expense is incurred for which indemnification can be provided under this
Agreement; including one pending on or before the date of this Agreement, but
excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement
to enforce his rights under this Agreement.
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14. Severability.
If any
provision or provisions of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, illegal or otherwise 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 shall
remain enforceable to the fullest extent permitted by law; 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 thereby. Without limiting the generality of the foregoing,
this Agreement is intended to confer upon Indemnitee indemnification rights
to
the fullest extent permitted by applicable laws. In the event any provision
hereof conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent necessary
to
resolve such conflict.
15. Modification
and Waiver.
No
supplement, modification, termination 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.
16. Notice
By Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification covered hereunder. The failure to so
notify the Company shall not relieve the Company of any obligation which it
may
have to Indemnitee under this Agreement or otherwise unless and only to the
extent that such failure or delay materially prejudices the
Company.
17. 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 and receipted for by the party to whom said notice or other communication
shall have been directed, 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:
10
(a) If
to
Indemnitee, to the address set forth below Indemnitee signature
hereto.
If
to the
Company, to:
00000
Xxxxx Xxxxxx Xxxx. #000
Xxx
Xxxxxxx, XX 00000
Attn:
Chief Executive Officer
or
to
such other address as may have been furnished to Indemnitee by the Company
or to
the Company by Indemnitee, as the case may be.
18. Identical
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
19. 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.
20. 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 Delaware without
application of the conflict of laws principles thereof.
21. Gender.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of
the day and year first above written.
| AURIGA LABORATORIES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxxxxx X. Xxxxx |
||
| Title: Chairman & CEO | ||
| INDEMNITEE | ||
| |
|
|
| /s/ Xxxxx Xxxxxx | ||
|
Name: Xxxxx Xxxxxx |
||
|
Address:
|
Xx.
Xxxxx Xxxxxx
0000
Xxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
|
|
