EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of April
1, 2002 by and between Apogent Technologies Inc., a Wisconsin corporation (the
"Company"), and Xxxxxx X. Xxxxxxx, a director and/or an executive officer of the
Company ("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors and executive officers the most capable persons available; and
WHEREAS, both the Company and Indemnitee recognize the risk of
litigation, and claims being asserted, against directors and executive officers
of public companies in today's environment; and
WHEREAS, applicable provisions of the Wisconsin Business Corporation
Law (the "WBCL") and of the Company's Bylaws (the "Bylaws") require the Company
to indemnify and advance expenses to its directors and executive officers to the
fullest extent permitted by law and Indemnitee's service as a director and/or an
executive officer is in part in consideration of such indemnification rights;
and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's service to the
Company in an effective manner, and to provide Indemnitee with specific
contractual assurance that the protections promised by the WBCL and the Bylaws
will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such or any change in the composition of the
Company's Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to, Indemnitee to the fullest
extent permitted by law and as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of Indemnitee's
service as a director and/or an executive officer of the Company, and for other
good and valuable consideration, the adequacy of which is hereby acknowledged,
the Company and Indemnitee agree as follows:
1. Contractual Nature of Existing Indemnification Provisions. The
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indemnification provisions contained in Subchapter VIII of the WBCL and Article
VIII of the Bylaws, as in effect on the date hereof and as either may be amended
to provide more advantageous indemnification rights to Indemnitee, shall be
deemed to be a contract between the Company and Indemnitee and any amendment,
modification, revocation or repeal of any of such provisions of Subchapter VIII
of the WBCL or Article VIII of the Bylaws shall not limit any rights of
Indemnitee hereunder to indemnification or the allowance of expenses.
2. Subrogation. In the event the Company shall make any payments
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pursuant to Subchapter VIII of the WBCL, Article VIII of the Bylaws or this
Agreement, the Company shall be
subrogated to the extent of such payments to all of the rights of recovery of
Indemnitee, who agrees to execute all documents required and to do everything
that may be necessary or desirable to secure such rights, including the
execution of such documents as may be necessary to enable the Company
effectively to bring suit to enforce such rights.
3. Defense and Settlement. In consideration of Indemnitee's rights
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to indemnification pursuant to this Agreement, the Indemnitee agrees to give
written notice to the Company as soon as practicable of any claim ("Claim") made
against him for which indemnity will or could be sought. In connection with any
Claim, Indemnitee agrees to cooperate fully with the Company and to provide
timely access to all relevant documents and other records in Indemnitee's
possession or control. The Indemnitee agrees to provide the Company with all of
the information, assistance and cooperation which the Company reasonably
requests. Further, the Indemnitee agrees not to settle any Claim or otherwise
assume any contractual obligation or admit any liability with respect to any
Claim without the Company's written consent, which shall not be unreasonably
withheld.
4. Non-Exclusivity. Nothing herein shall be deemed to diminish or
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otherwise restrict Indemnitee's right to indemnification under any provision of
the WBCL, the Company's Articles of Incorporation or the Bylaws.
5. Governing Law. This Agreement shall be governed by and construed
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in accordance with Wisconsin law.
6. Severability. The provisions of this Agreement are severable, and
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if any clause or provision hereof shall be held invalid or unenforceable in
whole or part, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, and shall not in any manner affect such
clause or provision to the extent that such clause or provision is valid or
enforceable, and shall not in any manner affect any other clause or provision of
this Agreement.
7. Amendment. No amendment, modification, termination or
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cancellation of this Agreement shall be effective unless in writing and signed
by the parties hereto.
8. Binding Effect. This Agreement shall be binding upon all
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successors and assigns of the Company (including any transferee of all or
substantially all of the Company's assets and any successor by merger or
operation of law) and shall inure to the benefit of the heirs, personal
representatives and estate of Indemnitee.
9. Effectiveness. This Agreement supersedes all previously executed
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indemnification agreements between the parties. The provisions of this Agreement
shall cover claims, actions, suits and other proceedings whether now pending or
hereafter commenced and shall be retroactive to cover acts or omissions or
alleged acts or omissions, which heretofore have taken place. By way of example
but not of limitation, this Agreement shall apply to all liabilities, known or
unknown, contingent or otherwise, that presently exist or arise in the future,
regardless of whether the liabilities relate to activities of Indemnitee or the
Company preceding or subsequent to the date of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
APOGENT TECHNOLOGIES INC.
By:
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Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
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Xxxxxx X. Xxxxxxx
