INDEMNIFICATION AGREEMENT
--------------------------
AGREEMENT dated as of December 11, 2001 between NEW BRUNSWICK SCIENTIFIC
CO., INC., a New Jersey corporation (the "Corporation") and XXXXX X. XXXXXX
(the "Director").
WHEREAS, the Director is a director of the Corporation; and
WHEREAS, proceedings based upon the Director's performance of his duties as a
director of the Corporation or on the governing board of another business entity
or both 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, cause the Director to
cease serving as a director of the Corporation and/or make him unwilling to
serve on the governing board of another business entity as requested by 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
WHEREAS, the Director has previously entered into an Indemnification Agreement
with the Corporation, dated May 17, 2001, which is superceded and replaced by
this Agreement; and
1
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 and on the governing boards of such other business entities as
the Corporation may direct, agree as follows:
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 and/or an Affiliate
(hereinafter defined), which involves the Director by reason of his being or
having been a director, officer or agent of the Corporation, an Affiliate 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 and/or an
Affiliate or its Shareholders in connection with a matter in which he has a
material conflict of interest.
2
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.
1.7 Affiliate. "Affiliate" shall mean a business or corporate entity
---------
in which the Corporation owns or holds debt or equity securities or otherwise
has an economic interest and on whose governing board the Corporation has
requested that the Director serve.
ARTICLE II
----------
INDEMNIFICATION
---------------
2.1 Personal Liability. The Director shall not be personally liable to
------------------
the Corporation, an Affiliate or its stockholders for damages for breach of any
duty owed to the Corporation, an Affiliate or its stockholders 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, an Affiliate 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 (to the extent (i) not indemnified by an Affiliate or (ii) such
indemnification is not funded or (iii) not covered by directors and officers
liability insurance obtained by an Affiliate) 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 and/or an
Affiliate, unless such breach of duty is based upon an act or omission (a) in
3
Breach Of The Director's Duty Of Loyalty to the Corporation, an Affiliate 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 (to the extent (i)
------------------------
an Affiliate does not advance or (ii) funds are not advanced under directors and
officers liability insurance obtained by an Affiliate) 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, an
Affiliate 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 (including indemnification by an Affiliate), and to the extent
coverage is not available under fiduciary liability insurance obtained by the
Corporation or an Affiliate, 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.
4
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
----------
ASSERTION OF CLAIMS
---------------------
4.1 Claims. A Director serving at the request of the Corporation on
------
the board of directors of an Affiliate shall make reasonable and timely efforts
to obtain indemnification from the Affiliate and to invoke the coverage of any
applicable insurance obtained by the Affiliate.
5
4.2 Subrogation. To the extent indemnification from an Affiliate or
-----------
insurance coverage was available for the Director serving at the request of the
Corporation on the board of directors of an Affiliate and the Corporation
expended funds on behalf of the Director, the Corporation shall be subrogated to
the rights of the Director to such indemnification and/or insurance. The
Director shall cooperate as reasonably required by the Corporation in connection
with the Corporation's rights under this section.
ARTICLE V
----------
MISCELLANEOUS
-------------
5.1 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 and/or an
Affiliate 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.
5.2 Binding Effect Upon Successors of Corporation. This Agreement
--------------------------------------------------
shall bind the Corporation, its successors and assigns.
5.3 Insurance. The Corporation, at its sole discretion, may purchase and
---------
maintain insurance on behalf of the Director.
5.4 Scope. The scope of this Agreement and the indemnification
-----
provided hereunder shall not exceed that provided to the Director under any
other agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
6
ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC.
______________________ By:______________________________
Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx
Assistant Secretary Chairman and Chief Executive Officer
By:______________________________
Xxxxx X. Xxxxxx
Director
7
