INDEMNIFICATION AGREEMENT
EXHIBIT
10.2
This
agreement is entered into as of
this 7th day of December, 2007, by and between Xxxxxxxxx & Xxxxx, P.C. (the
“Firm”) and Matritech, Inc. (the “Company’), as follows:
Background
A. On
December 7, 2007, the Company and the Firm entered into an agreement (the
“Engagement Agreement”) whereby the Company retained the Firm to assist the
Company in preparing for and executing the wind-down of the
Company.
B. The
Engagement Agreement provides that, at such time as the sale of substantially
all the Company’s assets to Inverness Medical Innovations, Inc. closes and the
employment of Messrs. Chubb and Corbet is terminated by the Company’s Board of
Directors (the “Board”), the Board shall elect Xxxxx X. Xxxxxxx ("Xxxxxxx") as
President of the Company, with full authority and discretion to take such
actions as are necessary or convenient to effectuate the wind-down of the
Company, subject to oversight and direction of the Board. The Firm
has, pursuant to the Engagement Letter, agreed to assume full responsibility
for
Xxxxxxx’x performance of services to the Company as an officer or in any other
capacity. The Company has agreed to indemnify Xxxxxxx to the full
extent provided to Company officers in the charter, by-laws and Board
resolutions of the Company in connection with his services as President,
Treasurer and Secretary of the Company.
C. In
consideration of the foregoing, the Company and the Firm have agreed to the
following:
Terms
of Agreement
1. Indemnification
of Xxxxxxx as Officer of the Company. Xxxxxxx, as an officer of
the Company, shall have the full benefit of the provisions of Article Twelfth
of
the Company’s Amended and Restated Certificate of Incorporation. A
copy of the provisions of this Article Twelfth is attached hereto as Exhibit
A
and incorporated herein by reference.
2. Indemnification
of the Firm. The Company agrees to indemnify and hold harmless
the Firm and its respective employees and agents (collectively, the
“Indemnitees”) from and against all losses, claims, damages and liabilities
resulting from an Indemnitee being (i) made a party or threatened to be made
a
party to or (ii) involved in any threatened or pending action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
“Proceeding”) and whether or not by or in the right of the Company or otherwise,
which are related to or result from the performance by the Firm of the services
contemplated by the Engagement Agreement. The Company will
promptly reimburse any Indemnitee for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the defense of any
claim
made or threatened against such Indemnitee; provided that the Indemnitee
undertakes to repay to the Company any and all such advanced reimbursed expenses
to the extent that it is finally judicially determined that the loss, claim,
damage or liability resulted from the Firm’s or the Indemnitee’s willful
misconduct, bad faith or gross negligence. The
Company will not be liable to any Indemnitee under the foregoing indemnification
and reimbursement provisions, (i) for any settlement by an Indemnitee effected
without the Company’s prior written consent, such consent not to be unreasonably
withheld, or (ii) to the extent that any loss, claim, damage or liability is
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted primarily from the Firm’s or the Indemnitee’s willful
misconduct, bad faith or gross negligence. Indemnification shall
continue as to any Indemnitee who has ceased to perform services for the Firm
and after the Firm has ceased to perform services under the Engagement
Agreement; such indemnification by the Company shall continue through any period
during which the Company has directors’ and officers’ liability insurance,
including without limitation any tail period.
3. Required
Notice of Claim of Indemnification. Promptly after receipt by an
Indemnitee of notice of any intention or threat to commence an action, suit
or
Proceeding or notice of the commencement of any action, suit or Proceeding,
such
Indemnitee will, if a claim in respect thereof is to be made against the Company
pursuant hereto, promptly notify the Board of the Company in writing of the
same. In case any such action is brought against any Indemnitee and
such Indemnitee complies with the notice provisions hereof, the Company may
elect to assume the defense of any such action, with counsel reasonably
satisfactory to such Indemnitee, and an Indemnitee may employ additional counsel
to participate in the defense of any such action provided, that the employment
of such additional counsel shall be at the Indemnitee’s own expense,
unless:
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(i)
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the
employment of such counsel has been authorized in writing by the
Board of
Directors of the Company;
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(ii)
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the
Indemnitee has reasonably concluded (based upon advice of counsel
to the
Indemnitee) that there may be legal defenses available to it or other
Indemnitees that are different from or in addition to those available
to
the Company, or that a conflict or potential conflict exists (based
upon
advice of counsel to the Indemnitee) between the Indemnitee and the
Company that makes it impossible or inadvisable for counsel to the
Indemnitee to conduct the defense of both the Company and the Indemnitee
(in which case the Company will not have the right to direct the
defense
of such action on behalf of the Indemnitee);
or
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(iii)
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the
Company has not in fact employed counsel reasonably satisfactory
to the
Indemnitee to assume the defense of such action within a reasonable
time
after receiving notice of the action, suit or
Proceeding,
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in
each of which cases the reasonable fees, disbursements and other
charges
of such counsel will be at the expense of the Company; provided,
further,
that in no event shall the Company be required to pay fees and
expenses
for more than one firm of attorneys representing Indemnitees unless
the
defense of one Indemnitee is unique or separate from that of another
Indemnitee subject to the same claim or
action.
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3. Breach
of Agreement. In the event of a breach or alleged breach of this
Indemnification Agreement that results in litigation, the prevailing party
in
such litigation shall be entitled to recover all expenses, including reasonable
attorneys’ fees, incurred in connection with the litigation.
4. Termination
of Xxxxxxx or the Firm by the Company shall not terminate the Company’s
obligation to insure and indemnify Xxxxxxx and to indemnify the Firm for claims
incurred during the period prior to termination.
Executed
as of the date first written above.
| XXXXXXXXX & XXXXX, P.C. | MATRITECH, INC. | |||
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By:
/s/
Xxxxx X. Xxxxxxx
Its:
Principal
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By:
/s/
Xxxxxxx X. Xxxxx 12/11/07
Its:
CEO
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