DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
This Director and Officer Indemnification Agreement made and entered
into as of January 23, 2003 ("Agreement"), by and between Techne Corporation,
a Minnesota corporation (the "Company") and _____________________ (the
"Indemnitee"):
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors and officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and
officers to litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company's Articles of Incorporation and Bylaws require it
to indemnify its directors and officers to the fullest extent permitted by
law; and
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of any such Articles or Bylaws or any change in
the ownership of the Company or the composition of its Board of Directors):
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Companies and Indemnitee do hereby covenant and agree
as follows:
1. Definitions.
(a) "Official Capacity" means (1) with respect to an Indemnitee
who is a director of the Company, the position of director of the
company, (2) with respect to an Indemnitee who is an officer of
the Company, the elective or appointive office or position held by
such person, and (3) with respect to an Indemnitee who, while a
director, officer, or employee of the Company, is or was serving
at the request of the Company or whose duties in that position
involve or involved service as a director, officer, partner,
trustee, employee, or agent of another organization or employee
benefit plan, the position of that person as a director, officer,
partner, trustee, employee, or agent, as the case may be, of the
other organization or employee benefit plan.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association,
organization or other legal entity.
(c) "Expenses" shall mean all fees, costs and expenses incurred
in connection with any Proceeding, including, without limitation,
attorneys' fees, disbursements and retainers (including, without
limitation, any fees, disbursements and retainers incurred by
Indemnitee pursuant to Sections 9 and 10(c) of this Agreement),
fees and disbursements of expert witnesses, private investigators
and professional advisors (including, without limitation,
accountants and investment bankers), court costs, transcript
costs, fees of experts, travel expenses, duplicating, printing and
binding costs, telephone and fax transmission charges, postage,
delivery services, secretarial services, and other disbursements
and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to
those terms in Section 3(a) below.
(e) "Indemnitee" shall mean the individual identified above and
the spouse of such individual to the extent that such spouse
incurs Expenses or Liabilities arising from activities of
such individual in the individual's Official Capacity and the
individual is indemnified pursuant to Section 3 below.
(f) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in
settlement, including punitive and exemplary damages to the
maximum extent permitted by Minnesota law.
(g) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any
other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to
Section 10 of this Agreement to enforce Indemnitee's rights
hereunder and a proceeding initiated by or in the right of the
company.
(h) "Subsidiary" shall mean any corporation, partnership, limited
liability company, joint venture, trust or other Entity of which
the Company owns (either directly or through or together with
another Subsidiary) either (i) a general partner, managing member
or other similar interest or (ii) (A) 50% or more of the voting
power of the voting capital equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity, or (B) 50% or more of the outstanding voting capital stock
or other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company's
covenants and commitments hereunder, Indemnitee agrees to serve or continue
to serve as a director and/or officer of the Company. However, this
Agreement shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee's service to the Company beyond any period otherwise
required by law or by other agreements or commitments of the parties, if any.
3. Agreement to Indemnify. Subject Section 7 below, if Indemnitee
was or is a party or is threatened to be made a party or witness to any
Proceeding by reason of the Indemnitee's Official Capacity, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities incurred
or paid by Indemnitee in connection with such Proceeding (referred to herein
as "Indemnifiable Expenses" and "Indemnifiable Liabilities," respectively,
and collectively as "Indemnifiable Amounts"), provided that Indemnitee:
a) has not been indemnified by any other organization for the
Indemnifiable Amounts;
b) acted in good faith;
c) has not received improper personal benefit;
d) in the case of a criminal proceeding, had no reasonable cause
to believe the conduct was unlawful; and
e) reasonably believed that the conduct was in the best interests
of the Company, or, in the case of acts or omissions occurring
while serving another Entity at the request of the Company
reasonably believed that the conduct was not opposed to the
best interests of the Company (if the Indemnitee's conduct in
the Proceeding related to an employee benefit plan, the conduct
shall not be considered opposed to the best interests of the
Company if Indemnitee reasonably believed that the conduct was
in the best interests of the participants or beneficiaries of
the employee benefit plan).
4. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts
for which Indemnitee seeks payment under Section 3 of this Agreement and a
short description of the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee within twenty (20) calendar days of
receipt of the request. At the request of the Company, Indemnitee shall
furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to
indemnification hereunder.
5. Indemnification for Expenses if Indemnitee is Wholly or Partly
Successful. If the Company determines, in the manner required by law, that
the Indemnitee meets the requirements of Section 3 with respect to one or
more, but not all, claims in a Proceeding, then the Company shall pay all
Indemnifiable Amounts related to the claims for which such Idemnitee meets
the requirements of Section 3.
6. Effect of Certain Resolutions. Neither the settlement or
termination of any Proceeding nor the failure of the Company to award
indemnification or to determine that indemnification is payable shall create
an adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any Proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
action or proceeding, had reasonable cause to believe that Indemnitee's
action was unlawful.
7. Agreement to Advance Expenses; Conditions. Upon receipt by the
Company of a written affirmation by the Indemnitee of a good faith belief
that the criteria for indemnification set forth in Section 3 above are
satisfied and a written undertaking by the Indemnitee to repay all amounts
paid by the Company if it is ultimately determined such criteria have not
been satisfied, the Company shall pay to Indemnitee all Indemnifiable
Expenses incurred by Indemnitee in connection with any Proceeding in advance
of the final disposition of such Proceeding. This undertaking shall be an
unlimited general obligation of Indemnitee, but need not be secured and shall
be accepted by the Company without reference to the financial ability of the
Indemnitee to make the repayment.
8. Procedure for Advance Payment of Expenses. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Expenses
for which Indemnitee seeks an advancement under Section 7 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses and the affirmation and undertaking specified in
Section 7 above. Payment of Indemnifiable Expenses under Section 7 shall be
made no later than twenty (20) calendar days after the Company's receipt of
such request.
9. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes
a request for payment of Indemnifiable Amounts under Section 3
above or a request for an advancement of Indemnifiable Expenses
under Sections 7 and 8 above and the Company fails to make such
payment or advancement in a timely manner pursuant to the terms of
this Agreement, Indemnitee may petition any federal or state court
located in Minneapolis, Minnesota to enforce the Company's
obligations under this Agreement.
(b) Expenses. The Company agrees to reimburse Indemnitee in full
for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling
any action brought by Indemnitee under Section 9(a) above;
provided, however, that if Indemnitee is unsuccessful, on the
merits, in such action, then the Company shall have no obligation
to Indemnitee under this Section 9(b).
(c) Validity of Agreement. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an
action under Section 9(a) above, that the provisions of this
Agreement are not valid, binding and enforceable or that there is
insufficient consideration for this Agreement and shall stipulate
in court that the Company is bound by all the provisions of this
Agreement.
(d) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses
under this Agreement shall not be a defense in any action brought
under Section 9(a) above, and shall not create a presumption that
such payment or advancement is not permissible.
10. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the
Company promptly upon being served with any summons, citation,
subpoena, complaint, indictment, information, or other document
relating to any Proceeding which may result in the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses
hereunder; provided, however, that the failure to give any such
notice shall not disqualify Indemnitee from the right to receive
payments of Indemnifiable Amounts or advancements of Indemnifiable
Expenses unless the Company's ability to defend in such Proceeding
is materially and adversely prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last
sentence of this Section 10(b) and of Section 10(c) below, the
Company shall have the right to defend Indemnitee in any
Proceeding which may give rise to the payment of Indemnifiable
Amounts hereunder; provided, however that the Company shall notify
Indemnitee of any such decision to defend within ten (10) calendar
days of receipt of notice of any such Proceeding under Section
10(a) above. The Company shall not, without the prior written
consent of Indemnitee, consent to the entry of any judgment
against Indemnitee or enter into any settlement or compromise
which (i) includes an admission of fault of Indemnitee or (ii)
does not include, as an unconditional term thereof, the full
release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee. This Section 10(b) shall
not apply to a Proceeding brought by Indemnitee under Section 9(a)
above or pursuant to Section 17 below.
(c) Indemnitee's Right to Counsel. Notwithstanding the
provisions of Section 10(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee's Official Capacity,
Indemnitee reasonably concludes that Indmenitee may have separate
defenses or counterclaims to assert with respect to any issue
which may not be consistent with, or may be otherwise in conflict
with, the position of other defendants in such Proceeding,
including without limitation the Company, or if the Company fails
to assume and maintain the defense of such proceeding in a timely
and competent manner, Indemnitee shall be entitled to be
represented by separate legal counsel of Indemnitee's choice at
the expense of the Company. In addition, if the Company fails to
comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any
action, suit or proceeding to deny or to recover from Indemnitee
the benefits intended to be provided to Indemnitee hereunder,
Indemnitee shall have the right to retain counsel of Indemnitee's
choice, at the expense of the Company, to represent Indemnitee in
connection with any such matter.
11. Representations and Warranties of the Company. The
Company hereby represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority
to enter into, and be bound by and perform its obligations under
the terms of, this Agreement, and the execution, delivery and
performance of the undertakings contemplated by this Agreement
have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered
by the Company in accordance with the provisions hereof, shall be
a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by equitable principles, applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors' rights generally.
12. Contract Rights Not Exclusive.
(a) The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights
which Indemnitee may have at any time under applicable law, the
Company's Articles of Incorporation or Bylaws, or any other
agreement, vote of stockholders or directors (or a committee of
directors), or otherwise, both as to action in Indemnitee's
official capacity and as to action in any other capacity as a
result of Indemnitee's serving as a director of the Company. The
Company's obligations under this agreement shall be primary to any
obligation of indemnity owed by any third party to Indemnitee for
any Indemnifiable Amounts.
(b) To the extent that the Company maintains an insurance policy
or policies providing liability insurance for directors, officers,
agents or fiduciaries of the Company or any other Entity that such
person serves at the request of the Company, Indemnitee shall be
covered by such policy or policies in accordance with their
applicable terms to the maximum extent of the coverage available
for any such director, officer, partner, agent or fiduciary under
such policy or policies.
13. Successors. This Agreement shall be (a) binding upon all
successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock and/or assets of the Company and
any direct or indirect successor by merger or consolidation or otherwise by
operation of law) and (b) binding on and shall inure to the benefit of the
heirs, assigns, personal representatives, executors and administrators of
Indemnitee. This Agreement shall continue for the benefit of Indemnitee and
such heirs, assigns, personal representatives, executors and administrators
after Indemnitee has ceased to have Corporate Status.
14. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee
against other persons, and Indemnitee shall take, at the request of the
Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.
15. Change in Law. To the extent that Minnesota law (whether by
statute or judicial decision), now or in the future, shall permit broader
indemnification or advancement of expenses than is provided under the terms
of the Articles of Incorporation and Bylaws of the Company and this
Agreement, Indemnitee shall be entitled to such broader indemnification and
advancements, and this Agreement shall be deemed to be amended to such
extent.
16. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be
illegal, invalid or unenforceable, in whole or in part, such provision or
clause shall be limited or modified in its application to the minimum extent
necessary to make such provision or clause valid, legal and enforceable, and
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
17. Indemnitee as Plaintiff. Except as provided in Section 10(c) of
this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses
with respect to any Proceeding brought by Indemnitee against the Company, any
Entity which it controls, any director or officer thereof, or any third
party, unless the Company has consented to the initiation of such Proceeding.
This Section shall not apply to counterclaims or affirmative defenses
asserted by Indemnitee in any Proceeding brought against Indemnitee or to any
proceeding brought in good faith by Indemnitee to enforce his or her rights
under this Agreement.
18. Modifications and Waiver. Except as provided in Section 15 above
with respect to changes in Minnesota law which broaden the right of
Indemnitee to be indemnified by the Company, no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
each 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 of this Agreement (whether or not similar), nor shall such waiver
constitute a continuing waiver.
19. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail
with postage prepaid, on the third business day after the date on which it is
so mailed:
(i) If to Indemnitee, to:
At the home or business address as shown
in the Company's records;
(ii) If to the Company, to:
Techne Corporation
000 XxXxxxxx Xxxxx X.X.
Xxxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as may have been furnished in the same manner by any
party to the others.
20. Governing Law. This Agreement shall be governed by and construed
and enforced under the laws of Minnesota without giving effect to the
provisions thereof relating to conflicts of law.
21. Consent to Jurisdiction. Each of the Company and Indemnitee
hereby irrevocably and unconditionally consents to submit to the exclusive
the jurisdiction of the courts of the State of Minnesota and the United
States District Court for the District of Minnesota (the "Minnesota Courts").
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Techne Corporation
_______________________________
By:
Its:
INDEMNITEE
_______________________________
