INDEMNIFICATION AGREEMENT
AGREEMENT
dated as of February 23, 2006 between NEW BRUNSWICK SCIENTIFIC CO., INC., a
New
Jersey corporation (the "Corporation") and Xxxxxx X. Xxxxxxxx (the "Officer").
WHEREAS,
the Officer is an officer of the Corporation holding the positions of Vice
President - Finance, Chief Financial Officer, Chief Accounting Officer,
Treasurer; and
WHEREAS,
proceedings based upon the Officer's performance of his duties as an officer
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
Officer in his performance of his duties, cause the Officer to cease serving
as
an officer 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 Officer
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
NOW,
THEREFORE, the parties hereto, for valuable consideration, incident to the
Officer's service to, and to induce the continued service of the Officer 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 Officer brought by or
in
the right of the Corporation and/or an Affiliate (hereinafter defined), which
involves the Officer 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 Officer's Duty of Loyalty.
"Breach
Of The Officer'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.
1.6 ERISA
Suit.
"ERISA
Suit" shall mean a proceeding against the Officer 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 Officer.
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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 Officer
serve.
ARTICLE
II
INDEMNIFICATION
2.1 Personal
Liability.
The
Officer 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 Officer'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 Officer 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 Officer against his Expenses and all Liabilities in
connection with any Proceeding involving the Officer, 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 Breach Of The Officer'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 Officer of an improper personal benefit.
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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 Officer in a Proceeding
as and when incurred, provided,
however,
that
the Officer 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 Officer was based on an act or omission (a) in Breach Of The
Officer'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 Officer
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 Officer 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.
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 Officer
did not meet the applicable standards of conduct set forth in subparagraphs
(a)
and (b) above.
3.3 Determination.
Any
determination concerning whether the Officer met the standards of conduct set
forth in subparagraphs 3.1(a) and (b) above shall be made:
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(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.
An
Officer 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.
4.2 Subrogation.
To the
extent indemnification from an Affiliate or insurance coverage was available
for
the Officer serving at the request of the Corporation on the board of directors
of an Affiliate and the Corporation expended funds on behalf of the Officer,
the
Corporation shall be subrogated to the rights of the Officers to such
indemnification and/or insurance. The Officer shall cooperate as reasonably
required by the Corporation in connection with the Corporation's rights under
this section.
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ARTICLE
V
MISCELLANEOUS
5.1 Agreement
Effective Despite Service Prior to Effective Date and After Termination of
Officer.
This
Agreement shall be effective without regard to the service of the Officer as
an
Officer 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 Officer 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 Officer.
5.4 Scope.
The
scope of this Agreement and the indemnification provided hereunder shall not
exceed that provided to the Officer under any other agreements.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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ATTEST:
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NEW
BRUNSWICK SCIENTIFIC CO., INC.
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/s/
Xxxxx Xxxxxxxx
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By:
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/s/ Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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Secretary
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Chairman
and Chief Executive Officer
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By:
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/s/ Xxxxxx
X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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Vice
President, Finance
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Chief
Financial Officer
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Chief
Accounting Officer
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Treasurer
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