Exhibit 10.54
INDEMNITY AGREEMENT
Agreement dated as of the ____ day of _________, 2002 by and between
Osteotech, Inc., a Delaware corporation (the "Corporation"), and
_________________ ("Indemnitee").
Indemnitee currently is serving as a director and officer/an officer of the
Corporation, and the Corporation desires that Indemnitee continue to serve in
such capacity/capacities. Indemnitee is willing to continue to serve in such
capacity/capacities if Indemnitee is adequately protected against the risks
associated with such service.
The Corporation and Indemnitee have concluded that the indemnities
available under the Corporation's by-laws need to be supplemented to more fully
protect Indemnitee against the risks associated with Indemnitee's service to the
Corporation.
In consideration of the premises and of the mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. The Corporation shall pay on behalf of the Indemnitee and Indemnitee's
executors, administrators or assigns, any amount that Indemnitee is or becomes
legally obligated to pay as a result of any claim or claims made against
Indemnitee by reason of the fact that Indemnitee served as a director and
officer/an officer of the Corporation or any Affiliate thereof or because of any
actual or alleged breach of duty, neglect, error, misstatement, misleading
statement, omission or other act done, or suffered or wrongfully attempted by
Indemnitee in Indemnitee's capacities as a director and officer/an officer of
the Corporation or any Affiliate thereof. For purposes of this Agreement, the
term "Affiliate" shall mean any corporation controlling, controlled by or under
common control with the Corporation. The payments that the Corporation will be
obligated to make hereunder shall include (without limitation) damages,
judgments, settlements, costs and expenses of investigation, costs and expenses
of defense of legal actions, claims and proceedings and appeals therefrom, and
costs of attachments and similar bonds; provided, however, that the Corporation
shall not be obligated to pay fines or other
obligations or fees imposed by law or otherwise that it is prohibited from
paying as indemnity by applicable law or for any other reason.
2. Costs and expenses (including, without limitations, attorneys' fees)
incurred by Indemnitee in defending or investigating any action, suit,
proceeding or claim referred to in Section 1 hereof shall be paid by the
Corporation in advance of the final disposition of such matter upon receipt of a
written undertaking by or on behalf of Indemnitee to repay any such amounts if
it is ultimately determined that Indemnitee is not entitled to indemnification
under the terms of this Agreement.
3. If a claim under this Agreement is not paid by or on behalf of the
Corporation within ninety days after a written claim has been received by the
Corporation, Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, Indemnitee shall also be entitled to be paid the expense of
prosecuting such claim.
4. In the event of 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 shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Corporation effectively to bring suit to
enforce such rights.
5. The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee:
a) for which payment is actually made to Indemnitee under an insurance
policy maintained by the Corporation, except in respect of any excess
beyond the amount of payment under such insurance;
b) for which Indemnitee is indemnified by the Corporation otherwise than
pursuant to this Agreement;
c) based upon or attributable to Indemnitee gaining in fact any personal
profit or advantage to which he was not legally entitled; provided,
however, that notwithstanding the foregoing, Indemnitee shall be
protected under this Agreement as to any claims upon which such suit
may be brought alleging that the Indemnitee gained in fact any
personal profit or advantage to which he was not legally entitled
unless a judgment or other final adjudication thereof adverse to
2
Indemnitee shall establish that Indemnitee gained in fact any personal
profit or advantage to which he was not legally entitled;
d) for an accounting or profits made from the purchase or sale by
Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or common
law; or
e) brought about or contributed to by the dishonesty of Indemnitee;
provided, however, that notwithstanding the foregoing, Indemnitee
shall be protected under this Agreement as to any claims upon which
suit may be brought alleging dishonesty on the part of Indemnitee,
unless a judgment or other final adjudication thereof adverse to
Indemnitee shall establish that Indemnitee committed acts of active
and deliberate dishonesty with actual dishonest purpose and intent,
which acts were material to the cause of action so adjudicated.
6. Indemnitee, as a condition precedent to his right to be indemnified
under this Agreement, shall give to the Corporation notice in writing as soon as
practicable of any claim made for which indemnity will or could be sought under
this Agreement. Notice to the Corporation shall be directed to Osteotech, Inc.,
00 Xxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Corporate Secretary (or
such other address as the Corporation shall designate in writing to Indemnitee).
7. Nothing herein shall be deemed to diminish or otherwise restrict
Indemnitee's right to indemnification under any provision of the certificate of
incorporation or by-laws of the Corporation or under Delaware law.
8. Indemnitee agrees to continue to serve as a director and officer/an
officer of the Corporation to the best of Indemnitee's ability until the
expiration or earlier termination of Indemnitee's term of office or until
Indemnitee tenders his resignation in writing. Notwithstanding the foregoing,
this Agreement shall not be deemed to be a commitment by the Corporation to
employ the Indemnitee.
9. This Agreement shall be governed by and construed in accordance with
Delaware law.
10. This Agreement shall be binding upon all successors and assigns of the
Corporation (including any transferee of all or substantially all of its assets
and any successor by
3
merger or operation of law) and shall inure to the benefit of the heirs,
personal representatives and estate of Indemnitee.
11. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not by themselves invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby, and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent of the
parties that the Corporation provide protection to Indemnitee to the fullest
enforceable extent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ATTEST: OSTEOTECH, INC.
by: by:
---------------------------- ----------------------------
Name: Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
INDEMNITEE
----------------------------
Name:
Title:
Address:
4
