INDEMNIFICATION AGREEMENT MISONIX, INC. (NEW YORK)
Exhibit
10.2
AGREEMENT, effective as the 15th day of May, 2010 between MISONIX, INC., a New York
corporation (the “Company”), and (the “Indemnitee”).
WHEREAS, it is essential to the Company to retain and attract as directors and officers the most
capable persons available; and
WHEREAS, Indemnitee is a director or officer of the Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies in today’s environment;
and
WHEREAS, the By-Laws of the Company provide indemnity protection in the Indemnitee;
WHEREAS, this Agreement satisfies the provisions of § 721 of the New York Business Corporation Law
(“BCL”); and
WHEREAS, in recognition of the fact that the Indemnitee continues to serve as a director or officer
of the Company in part in reliance on the aforesaid By-Laws and Indemnitee’s need for substantial
protection against personal liability in order to enhance Indemnitee’s continued service to the
Company in an effective manner, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such By-Laws will be available to Indemnitee (regardless
of, among other things, any amendment to or revocation of such By-Laws or any change in the
composition of the Company’s Board of Directors or any acquisition transaction relating to the
Company), and due to the potential inadequacy of the Company’s directors’ and officers’ liability
insurance coverage, the Company wishes to provide in this Agreement for the indemnification of, and
the advancing of expenses to, Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained,
for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the Company
directly or, at its request, with another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Certain Definitions.
(a) Approved Law Firm: shall mean any law firm (i) located in New York City and (ii) rated
“av” by Xxxxxxxxxx-Xxxxxxx Law Directory.
(b) Board of Directors: shall mean the Board of Directors of the Company.
(c) Change in Control: shall be deemed to have occurred if (i) any “person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), other than any shareholder (and/or affiliate of such shareholder) on the date of this
Agreement or a trustee or other fiduciary holding securities under an employee benefit plan of the
Company in substantially the same proportions as their ownership of stock of the Company, is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of the Company representing 15 percent or more of the total voting power
represented by the Company’s then outstanding Voting Securities (such person being hereinafter
referred to as an “Acquiring Person”), or (ii) during any 24-consecutive-month period, individuals
who at the beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a majority thereof, or
(iii) the shareholders of the Company approve a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving entry) at least
80 percent 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
shareholders of the Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all the Company’s assets.
(d) Claim: shall mean any threatened, pending or completed action, suit or proceeding, or
any inquiry or investigation, whether conducted by the Company or any other party, that Indemnitee
in good faith believes might lead to the institution of any such action, suit or proceeding,
whether civil, criminal, administrative, investigative or other.
(e) Expenses: shall include attorneys’ fees and all other costs, expenses and obligations
paid or 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 Claim relating to any Indemnifiable
Event, together with interest, computed at the Company’s average cost of funds for short-term
borrowings, accrued from the date of incurrence of such expense to the date Indemnitee receives
reimbursement therefor.
(f) Indemnifiable Event: shall mean any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or is or was
serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary
of another corporation of any type or kind, domestic or foreign, partnership, joint venture, trust,
employee benefit plan or other enterprise, or by reason of anything done or not done by Indemnitee
in such capacity. Without limitation of any indemnification provided hereunder, an Indemnitee
serving (i) another corporation, partnership, joint venture or trust of which 10 percent or more of
the voting power or residual economic interest is held, directly or indirectly, by the Company, or
(ii) any employee benefit plan of the Company or any entity referred to in clause (i), in any
capacity shall be deemed to be doing so at the request of the Company.
(g) Reviewing Party: shall be (i) the Board of Directors acting by quorum consisting of
directors who are not parties to the particular Claim with respect to which Indemnitee is seeing
indemnification, or (ii), if such a quorum is not obtainable or, even if obtainable, if a quorum of
disinterested directors so directs, (A) the Board of Directors upon the opinion in writing of
independent legal counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in Section 2 of this Agreement and in Section 721 of the
BCL has been met by the Indemnitee or (B) the shareholders upon a finding that the Indemnitee has
met the applicable standard of conduct referred to in clause (ii)(A) of this definition.
(h) Voting Securities: shall mean any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification Arrangement. If Indemnitee was, is or becomes at any time a party to, or
witness or other participant in, or is threatened to be made a party to, or witness or other
participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable
but in any event no later than 30 days after written demand is presented to the Company, against
any and all Expenses, judgments, fines (including excise taxes assessed on an Indemnitee with
respect to an employee benefit plan), penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with, or in respect of, such
Expenses, judgments, fines, penalties or amounts paid in settlement) of such Claim. If so
requested by Indemnitee, the Company shall advance (within two business days of such request) any
and all Expenses to Indemnitee (an “Expense Advance”). Notwithstanding anything in this Agreement
to the contrary, (i) Indemnitee shall not be entitled to indemnification pursuant to this Agreement
if a judgment or other final adjudication adverse to the Indemnitee establishes that Indemnitee’s
acts were committed in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or that Indemnitee personally
gained in fact a financial profit or other advantage to which Indemnitee was not legally entitled
and (ii) prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any
director or officer of the Company unless the Company has joined in or consented to the initiation
of such Claim.
3. Payment. Notwithstanding the provisions of Section 2, the obligations of the Company
under Section 2 (which shall in no event be deemed to preclude any right to indemnification to
which Indemnitee may be entitled under Section 723(a) of the BCL) shall be subject to the condition
that the Reviewing Party shall have authorized such indemnification in the specific case by having
determined that Indemnitee is permitted to be indemnified under the applicable standard of conduct
set forth in Section 2 and applicable law. The Company shall promptly call a meeting of the Board
of Directors with respect to a Claim and agrees to use its best efforts to facilitate a prompt
determination by the Reviewing Party with respect to the Claim. Indemnitee shall be afforded the
opportunity to make submissions to the Reviewing Party with respect to the Claim. The obligation
of the Company to make an Expense Advance pursuant to Section 2 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 Section 2 and applicable law, the Company shall be entitled to
be reimbursed by Indemnitee (who hereby agrees and undertakes to the full extent required by
paragraph (a) of Section 725 of the BCL to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced 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). 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 in any court in the State of
New York having subject matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the Reviewing Party or any
aspect thereof, 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.
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4. Change in Control. If there is a Change in Control of the Company (other than a Change in
Control which has been approved by a majority of the Board of Directors who were directors
immediately prior to such Change in Control) then (i) all determinations by the Company pursuant to
the first sentence of Section 3 hereof and Section 723(b) of the BCL shall be made pursuant to
subparagraph (1) or (2)(A) of such Section 723(b) and (ii) with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement or By-law of the Company now or hereinafter in effect relating to
Claims for Indemnifiable Events (including, but not limited to, any opinion to be rendered pursuant
to subparagraph (2)(A) of Section 723(b) of the BCL) the Company (including the Board of Directors)
shall seek legal advice from (and only from) special, independent counsel selected by Indemnitee
and approved by the Company (which approval shall not be unreasonably withheld), and who has not
otherwise performed services for the Company (or any subsidiary of the Company) or the Acquiring
Person (or any affiliate or associate of such Acquiring Person) within the last five years (other
than in connection with such matters) or Indemnitee. Unless Indemnitee has theretofore selected
counsel pursuant to this Section 4 and such counsel has been approved by the Company, any Approved
Law Firm shall be deemed to satisfy the requirements set forth above. Such counsel, among other
things, shall render its written opinion to the Company, the Board of Directors and Indemnitee as
to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the special, independent counsel referred to
above and to fully indemnify such counsel against any and all expenses (including attorneys’ fees),
claims, liabilities and damages arising out of or relating to this Agreement or its engagement
pursuant hereto. As used in this Section 4, the terms “affiliate” and “associate” shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act and in effect on the date of this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee against any and
all expenses (including attorneys’ fees) and, if requested by Indemnitee, shall (within two
business days of such request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any claim asserted or action brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company under this Agreement or any other
agreement or By-law of the Company now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance expenses payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments, fines, penalties
and amounts paid in settlement of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified, to the extent permitted by
law, against all Expenses incurred in connection with such Indemnifiable Event. 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, to the extent permitted by law, be on the Company
to establish that Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, the termination of any claim, action, suit or
proceeding, whether civil or criminal, 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.
8. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other
rights Indemnitee may have under the By-laws of the Company, the BCL or otherwise. To the extent
that a change in the BCL (whether by statue or judicial decision) permits greater indemnification
by agreement than would be afforded currently under the By-laws of the Company 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.
9. Liability Insurance. To the extent the Company maintains an insurance policy or policies
providing directors’ and officers’ liability insurance, 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 or officer of the Company.
10. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company or any affiliate of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such two-year period; provided, however, that if any shorter period
of limitations is otherwise applicable to any such cause of action, such shorter period shall
govern.
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11. Amendments, Etc. 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.
12. 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
papers required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring suit to enforce
such rights.
13. 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, By-law or otherwise) of the amounts
otherwise indemnifiable hereunder.
14. Specific Performance. The parties recognize that if any provision of this Agreement is
violated by the Company, Indemnitee may be without an adequate remedy at law. Accordingly, in the
event of any such violation, the Indemnitee shall be entitled, if Indemnitee so elects, to
institute proceedings, either at law or in equity, to obtain damages, to enforce specific
performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing
as Indemnitee may elect to pursue.
15. Binding Effect, Etc. This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by, the parties hereto and their respective successors (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), assigns, spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an officer or director of the Company or of any other enterprise at the
Company’s request.
16. Severability. The provisions of this Agreement shall be severable if 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.
17. Governing Law. This Agreement shall be governed by, and be construed and enforced in
accordance with, the laws of the State of New York applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of laws.
Executed by:
| MISONIX, INC. | ||||||
| By: | ||||||
| Title: President and Chief Executive Officer | ||||||
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