EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") dated as of this
1st day of April, 1999 among Embrex, Inc., a North Carolina corporation (the
"Company"), Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, C. Xxxxxx Xxxxxxxxxx, Xxxxxx
X. Xxxxxxxx, D.V.M. Ph.D., Xxxxx X. Xxxxxx, Xxxxxxx X. May, Ph.D., and Xxxxxx X.
Xxxxxx (each an "Indemnitee" and collectively the "Indemnitees").
WITNESSETH:
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Indemnification. To the fullest extent from time to time permitted by
law, the Company will indemnify and hold harmless each Indemnitee who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative by reason of the fact that he is or was a director, officer,
employee, shareholder, agent, or other representative of the Company, or is or
was serving at the request of the Company as a director, officer, employee,
trustee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against any and all costs or losses whatsoever, including but
not limited to expenses (including attorneys' and other fees), judgments, fines
and amounts paid in settlement, incurred by the Indemnitee in connection with
such action, suit or proceeding. Provided, however, indemnification shall not be
permitted under this Agreement: (i) in connection with any proceeding charging
improper personal benefit to the Indemnitee, whether or not involving action in
his official capacity, in which the Indemnitee was adjudged liable on the basis
that personal benefit was improperly received by the Indemnitee; (ii)
with respect to any criminal action or proceeding, unless the Indemnitee acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the Corporation and had no reasonable cause to believe his
conduct was unlawful; and (iii) as to an Indemnitee in the capacity of a
shareholder, in connection with any report, form, or other filing required to be
made by the Indemnitee, in the capacity as a shareholder, under federal or state
securities laws.
2. Indemnification under By-Laws. In furtherance of the indemnification
provided in Section 1, the Company agrees that it shall maintain in full force
and effect the indemnification provisions of the Company's By-Laws as currently
in effect (the "By-Laws") with respect to the Indemnitees, shall not amend or
otherwise restrict or impair such provisions as they may apply to the
Indemnitees and shall indemnify the Indemnitees to the fullest extent permitted
by the By-Laws; provided, however, that the Company shall not be required by
this Section 2 to indemnify the Indemnitees to any extent prohibited by law.
3. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Expenses (including attorneys' and other
fees) incurred by an Indemnitee in defending any civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding. All
advances to be made hereunder shall be paid by the Company to the Indemnitee
within 10 days following a written request therefor from the Indemnitee.
(b) Notice/Cooperation by Indemnitee. An Indemnitee shall give the
Company prompt notice in writing of the commencement of any action, suit or
proceeding, or the threat thereof against the Indemnitee, for which
indemnification will or could be sought under this Agreement. In addition, the
Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within the Indemnitee's power.
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(c) Procedure. (i) Any amounts payable by the Company pursuant to the
indemnification under this Agreement shall be paid no later than ten business
days after receipt of the written request of Indemnitee. If a claim is brought
by an Indemnitee under this Agreement, any statute, or any provision of the
Company's Certificate of Incorporation or By-Laws which provides for
indemnification, and if such claim is not paid in full by the Company within 30
days after a written request by the Indemnitee for payment thereof was first
received by the Company, the Indemnitee may, but need not, at any time
thereafter bring an action against the Company to recover the unpaid amount of
the claim and, subject to Section 9 of this Agreement, the Indemnitee shall also
be entitled to be reimbursed for the expense (including reasonable attorneys'
fees) of bringing such action. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in connection
with any action or proceeding in advance of its final disposition) that the
Indemnitee has not met the standards of conduct which make it permissible under
applicable law for the Company to indemnify the Indemnitee for the amount
claimed, but the burden of proving such defense shall be on the Company, and the
Indemnitee shall be entitled to receive interim payments of expenses pursuant to
Subsection 3(a) unless and until such defense shall be finally adjudicated by
court order or judgment from which no further right of appeal exists.
(ii) If the Company refuses or rejects an Indemnitee's claim for
indemnification hereunder, and in the event the Indemnitee shall thereafter seek
judicial enforcement of this Agreement, neither the failure of the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, or independent legal counsel) to have made a determination that
indemnification of the Indemnitee is proper in the circumstance because the
Indemnitee has met the applicable standard of conduct required by applicable
law, nor an actual
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determination by the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, or independent legal counsel) that the
Indemnitee has not met such applicable standard of conduct, shall create a
presumption that the Indemnitee has or has not met the applicable standard of
conduct.
(d) Notice to Insurers. If, at the time of the receipt of a notice of
prospective claim pursuant to Section 3(b) hereof, the Company has in effect any
insurance, including directors' and officers' liability insurance, which may
provide for payment of or reimbursement for such claim, the Company shall give
prompt notice of the assertion of such claim to each issuer of such insurance in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of an Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of, and to the extent provided in, such
policies.
(e) Insurance Offset. The Company's obligation to provide
indemnification to an Indemnitee under this Agreement shall be reduced to the
extent the Indemnitee actually receives indemnification from any other source
(including any otherwise applicable insurance coverage available to the
Indemnitee) to the extent the failure to reduce the indemnification under this
Agreement would result in Indemnitee being paid in excess of Indemnitee's total
loss.
(f) Expenses. "Expenses" referred to in this Agreement shall be
construed as broad as allowed by law and shall include all costs and losses
whatsoever, including but not limited to the cost of investigations, hearings,
attorneys' fees, court costs, damages, liabilities, judgments, fines, and
settlements, plus any costs of establishing a right to indemnification under
this Agreement.
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4. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties incurred by the
Indemnitee in the investigation, defense, appeal or settlement of any civil or
criminal action or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion of such
expenses, judgments, fines or penalties to which the Indemnitee is entitled.
5. Scope of Indemnification. Notwithstanding any other provisions of
this Agreement, the Company hereby agrees to indemnify the Indemnitees to the
fullest extent permitted by law, whether or not such indemnification is
specifically authorized by the other provisions of this Agreement or by the
Company's Certificate of Incorporation, the By-Laws, or statute. In the event of
any change after the date of this Agreement, in any applicable law, statute or
rule which expands the right of the Company to indemnify persons serving in any
of the capacities set forth in Section 1 above, such changes shall, without
further action by the Company, be included within the scope of the
indemnification provided to the Indemnitees by, and the Company's obligations
under, this Agreement. In the event of any change in the applicable law, statute
or rule that limits or restricts the right of the Company to indemnify persons
serving in any of the capacities set forth in Section 1 above, such changes
shall have no effect on this Agreement or the parties' rights and obligations
hereunder, except to the extent required by such law, statute or rule.
6. Benefit of Agreement. The rights of the Indemnitees hereunder shall
inure to the benefit of each Indemnitee, whether or not he is a director,
officer, or in any other position or relationship with the Company at the time
such liabilities or expenses are imposed or incurred,
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and whether or not the claim asserted against him is based on matters that
antedate the execution of this Agreement.
7. Nonexclusivity. The rights of the Indemnitees hereunder are in
addition to any other rights to which the Indemnitee may be entitled under any
law, statute, certificate of incorporation, bylaw, agreement, vote of
stockholders or directors, insurance policy, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. The rights of any Indemnitee hereunder shall not be affected by any
adverse change in the rights to which Indemnitee may be entitled under any such
law, statute, certificate of incorporation, bylaw, or agreement.
8. Directors' and Officers' Liability Insurance. The Company may
maintain a policy or policies of directors' and officers' insurance with
reputable insurance companies providing the Indemnitees with coverage for losses
from wrongful acts or omissions, or to ensure the Company's performance of its
indemnification obligations under this Agreement. In all policies of directors'
and officers' liability insurance, the Indemnitees shall be named as insureds in
such a manner as to provide the Indemnitees the same rights and benefits as are
accorded to the most favorably insured of the Company's insured.
9. Attorneys' Fees. In the event that any action is instituted by an
Indemnitee or the Company under this Agreement to enforce or interpret any of
the terms hereof and such action is adjudicated in favor of the Indemnitee, the
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by the Indemnitee with respect to such
action.
10. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and
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receipted for by the party addressee, on the date of such receipt or (ii) if
mailed by domestic certified or registered mail with postage prepaid, on the
third business day after the date postmarked. Addresses for notice to either
party are as shown on Schedule A hereto, or as subsequently designated by
written notice to the other parties.
11. Successors. This Agreement shall be binding upon the successors and
assigns of the Company and shall inure to the benefit of the successors, heirs
and legal representatives of the Indemnitees.
12. Severability. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the Company
shall nevertheless indemnify each Indemnitee to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated or by
any other applicable law.
13. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
EMBREX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
INDEMNITEES:
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
/s/ C. Xxxxxx Xxxxxxxxxx
------------------------------------
C. Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx, D.V.M. Ph.D.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. May, Director
------------------------------------
Xxxxxxx X. May, Ph.D.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
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SCHEDULE A
Addresses
Embrex, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
C. Xxxxxx Xxxxxxxxxx
000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx, D.V.M. Ph.D.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxx
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. May, Ph.D.
000 XxXxxxx Xxxxxx, Xxxxxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
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