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EXHIBIT 10.19
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of January 1, 2001, by and between
Northfield Laboratories Inc., a Delaware corporation (the "Company"), and the
undersigned director of the Company (the "Indemnified Party").
The Indemnified Party serves as a director of the Company. The
Company's Certificate of Incorporation permits the Company to indemnify the
directors, officers, employees and agents of the Company. The Company's
Certificate of Incorporation and Section 145 of the Delaware General Corporation
Law, as amended from time to time (the "Delaware Law"), also permit agreements
between the Company and its directors, officers, employees and agents for the
indemnification of such persons by the Company.
In recognition of the past services provided to the Company by the
Indemnified Party, and in order to induce the Indemnified Party to continue to
serve as a director of the Company, the Company has determined to enter into
this Agreement with the Indemnified Party.
NOW, THEREFORE, in consideration of the Indemnified Party's continued
service as a director of the Company, the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement:
"Change in Control" means a change in control of the Company of a
nature that would be required to be reported in response to Item 1(a) of the
Current Report on Form 8-K, as in effect as of the date of this Agreement,
promulgated pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company is then
subject to the reporting requirements of the Exchange Act; provided that,
without limitation, such a change in control will be deemed to have occurred if:
(a) there is consummated any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all of the Company's assets;
(b) the stockholders of the Company approve any plan or
proposal of liquidation or dissolution of the Company;
(c) there is consummated any consolidation or merger of
the Company in which the Company is not the surviving or continuing
corporation, or pursuant to which shares of the Company's Common Stock
would be converted into cash, securities or other property, other than
a merger of the Company in which the holders of the Company's Common
Stock immediately prior to the merger have, directly or indirectly, at
least an 80% ownership interest in the outstanding Common Stock of the
surviving corporation immediately after the merger;
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(d) any "person" or "group" (as such terms are used in
Section 13(d) and 14(d) of the Exchange Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more of
the combined voting power of the Company's then outstanding voting
securities ordinarily having the right to vote for the election of
directors;
(e) individuals who, as of the date of this Agreement,
constitute the Board of Directors of the Company (the "Board"
generally, and as of the date hereof, the "Incumbent Board") cease for
any reason to constitute a majority of the Board; provided that any
individual becoming a director subsequent to the date of this Agreement
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board will be, for purposes of this
Agreement, considered as though such individual were a member of the
Incumbent Board; provided further that, notwithstanding the foregoing,
an individual whose initial assumption of office as a director is in
connection with any actual or threatened "solicitation" of "proxies"
(as such terms are defined in Rule 14a-1 of Regulation 14A promulgated
under the Exchange Act) by any "person" or "group" (as such terms are
used in Section 13(d) and 14(d) of the Exchange Act) other than the
Incumbent Board will not be considered as a member of the Incumbent
Board for purposes of this Agreement; or
(f) the Board fails to nominate the Indemnified Party for
election as a director in connection with any annual or special meeting
of the Company's stockholders at which directors are to be elected (the
Indemnified Party having indicated his willingness to be nominated as a
director and to serve as a director if elected), the Indemnified Party
is nominated for election as a director in connection with any annual
or special meeting of the Company's stockholders at which directors are
to be elected (the Indemnified Party having indicated his willingness
to serve as a director if elected) but is not elected as a director by
the Company's stockholders at such meeting, or the Indemnified Party is
removed from office as a director, with or without cause, by vote or
consent of the Company's stockholders, if, in each case, such event
occurs in connection with any actual or threatened "solicitation" of
"proxies" (as such terms are defined in Rule 14a-1 of Regulation 14A
promulgated under the Exchange Act) by any "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act) other
than the Incumbent Board.
"Disinterested Director" means a director of the Company who is not and
was not a party to the Proceeding with respect to which indemnification is
sought by the Indemnified Party pursuant to this Agreement.
"Expenses" includes all reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating in or being or preparing to be
a witness in a Proceeding.
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"Independent Counsel" means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the past five years has been, retained to represent (a) the Company or the
Indemnified Party in any matter material to either such party (other than with
respect to matters concerning the Indemnified Party under this Agreement or of
other indemnified parties under similar indemnification agreements), or (b) any
other party to the Proceeding giving rise to a claim for indemnification under
this Agreement. Notwithstanding the foregoing, the term "Independent Counsel"
will not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or the Indemnified Party in an action to determine the
Indemnified Party's rights under this Agreement. The Company agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to the Agreement or its engagement pursuant
hereto.
"Proceeding" means any threatened, pending or completed action, suit,
arbitration, mediation, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Company or otherwise, and
whether civil, criminal, administrative or investigative, in which the
Indemnified Party was, is or may be involved as a party or otherwise by reason
of the fact that the Indemnified Party is or was a director, officer, employee
or agent of the Company or is or was serving as a director, officer, employee,
agent or fiduciary of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, in each case whether or not the
Indemnified Party continues to serve in the same capacity at the time any
liability or Expense is incurred for which indemnification may be sought under
this Agreement, including any such proceeding based on events or occurrences
prior to the date of this Agreement.
Section 2. Indemnification. The Company agrees to indemnify and hold
harmless the Indemnified Party to the full extent authorized or permitted by the
provisions of the Delaware Law and the Company's Certificate of Incorporation.
In furtherance of the foregoing, and without limiting the generality thereof,
the Company agrees to indemnify the Indemnified Party against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any Proceeding or
any claim, issue or matter therein, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his conduct was unlawful; provided that in connection with any Proceeding by or
in the right of the Company to procure a judgment in its favor, no
indemnification against such Expenses will be made in respect of any claim,
issue or matter in such Proceeding as to which the Indemnified Party is adjudged
to be liable to the Company, unless and to the extent that the Court of Chancery
of the State of the Delaware or the court in which such Proceeding has been
brought or is pending determines that such indemnification may be made. To the
extent that the Indemnified Party is a party to and is successful, on the merits
or otherwise, in any Proceeding, he will be indemnified to the maximum extent
permitted by law against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If the Indemnified Party is not wholly
successful in any Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
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Proceeding, the Company will indemnify the Indemnified Party against all
Expenses actually and reasonably incurred by him or on his behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this
Section 2, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, will be deemed to be a successful result
as to such claim, issue or matter.
Section 3. Indemnification for Expenses as Witness. To the extent the
Indemnified Party is, by reason of the fact that the Indemnified Party is or was
a director, officer, employee or agent of the Company or is or was serving as a
director, officer, employee, agent or fiduciary of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, a
witness in any action, suit, arbitration, mediation, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing or other
proceeding, whether civil, criminal, administrative or investigative, to which
the Indemnified Party is not a party, the Company agrees to indemnify the
Indemnified Party against all Expenses reasonably incurred by him or on his
behalf in connection therewith.
Section 4. Contribution. If the indemnification provided in Section 2
is unavailable and may not be paid to the Indemnified Party for any reason, then
in respect to any Proceeding in which the Company is jointly liable with the
Indemnified Party (or would be if joined in such Proceeding), the Company agrees
to contribute to the amount of Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by the
Indemnified Party in such proportion as is appropriate to reflect (a) the
relative benefits received by the Company and by the Indemnified Party from the
transaction from which such Proceeding arose and (b) the relative fault of the
Company and the Indemnified Party in connection with the events which resulted
in such Expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Indemnified Party will be determined by reference to, among other things, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent the circumstances resulting in such Expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation or any other method of allocation that does not take account of the
foregoing equitable considerations.
Section 5. Advancement of Expenses. The Company agrees to advance all
Expenses reasonably incurred by or on behalf of the Indemnified Party in
connection with any Proceeding within 10 days after the receipt by the Company
of a statement or statements from the Indemnified Party requesting such advance
or advances from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements will reasonably evidence the
Expenses incurred by the Indemnified Party and will include or be preceded or
accompanied by an undertaking by or on behalf of the Indemnified Party to repay
any Expenses advanced if it is ultimately determined that the Indemnified Party
is not entitled to be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section 5 will be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Company to advance
Expenses pursuant to this Section 5 will be subject to the condition that, if,
when and to the extent that the Company determines that the Indemnified Party
would not be
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permitted to be indemnified under applicable law, the Company will be entitled
to be reimbursed, within 30 days after such determination, by the Indemnified
Party (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided that if the Indemnified Party has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that the Indemnified Party should be indemnified under
applicable law, any determination made by the Company that the Indemnified Party
would not be permitted to be indemnified under applicable law will not be
binding and the Indemnified Party will not be required to reimburse the Company
for any advance of Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).
Section 6. Indemnification Procedures.
(a) The Indemnified Party agrees promptly to notify the
Company in writing upon being served with any summons, citation,
subpoena, complaints, indictment, information or other document
relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure of the Indemnified Party
to so notify the Company will not relieve the Company of any obligation
which it may have to the Indemnified Party under this Agreement or
otherwise.
(b) The Indemnified Party will be entitled to control the
defense of any Proceeding with counsel of his own choosing reasonably
acceptable to the Company, and the Company will cooperate in the
defense of such Proceeding. If the Indemnified Party determines not to
control the defense of any Proceeding with counsel of his own choosing,
the Indemnified Party will promptly so notify the Company in writing
and the Company will be required to assume the defense of such
Proceeding using counsel reasonably acceptable to the Indemnified
Party.
(c) The Company will not be liable for any settlement of
any Proceeding by the Indemnified Party effected without the Company's
written consent, which consent will not be unreasonably withheld,
delayed or conditioned by the Company. The Company will not be required
to obtain the consent of the Indemnified Party to the settlement of any
Proceeding that the Company has undertaken to defend if the Company
assumes full and sole responsibility for such settlement and the
settlement grants the Indemnified Party a complete and unqualified
release with respect to all potential liability.
(d) To obtain indemnification, the advancement of
Expenses or contribution by the Company under this Agreement, the
Indemnified Party must submit to the Company a written request,
including therewith such documentation and information as is reasonably
available to the Indemnified Party and is reasonably necessary to
determine whether and to what extent the Indemnified Party is entitled
to indemnification. The Corporate Secretary of the Company will,
promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that the Indemnified Party has requested
indemnification.
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(e) Upon written request by the Indemnified Party for
indemnification, a determination, if required by applicable law, with
respect to the Indemnified Party's entitlement thereto will be made in
the specific case (i) if a Change in Control has not occurred since the
date of this Agreement, (A) by the Board of Directors by a majority
vote of the Disinterested Directors, (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or,
if obtainable, if the majority of the Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which will be delivered to the Indemnified Party,
or (C) if so directed by a majority of the Disinterested Directors, by
the stockholders of the Company or (ii) if a Change in Control has
occurred since the date of this Agreement, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which will be
delivered to the Indemnified Party (unless the Indemnified Party
requests that such determination be made by the Board of Directors or
the stockholders, in which case the determination will be made in the
manner provided in clause (i) above). The Indemnified Party will
cooperate with the person or entity making such determination with
respect to the Indemnified Party's entitlement to indemnification,
including providing to such person or entity upon reasonable request
with any documentation or information that is not privileged or
otherwise protected from disclosure and that is reasonably available to
the Indemnified Party and reasonably necessary to such determination.
Any Independent Counsel, member of the Board of Directors, or
stockholder of the Company will act reasonably and in good faith in
making a determination under the Agreement of the Indemnified Party's
entitlement to indemnification. Any costs or expenses (including
attorneys' fees and disbursements) incurred by the Indemnified Party in
so cooperating with the person or entity making such determination will
be borne by the Company (irrespective of the determination as to the
Indemnified Party's entitlement to indemnification) and the Company
hereby agrees to indemnify and hold the Indemnified Party harmless
therefrom.
(f) If the determination of entitlement to
indemnification is to be made by Independent Counsel, the Independent
Counsel will be selected as provided in this Section 6(f). If a Change
in Control has not occurred since the date of this Agreement, the
Independent Counsel will be selected by the Company's Board of
Directors, and the Company will give written notice to the Indemnified
Party advising him of the identity of the Independent Counsel so
selected. If a Change in Control has occurred since the date of this
Agreement, the Independent Counsel will be selected by the Indemnified
Party and the Indemnified Party will give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In
either event, the Indemnified Party or the Company, as the case may be,
may, within 10 days after such written notice of selection will have
been given, deliver to the other party a written objection to such
selection; provided that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of "Independent Counsel" as defined in Section 1, and the
objection will set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected
will act as Independent Counsel. If a written objection is made and
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substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If, within
20 days after submission by the Indemnified Party of a written request
for indemnification pursuant to Section 6(d), no Independent Counsel
has been selected and not objected to, either the Company or the
Indemnified Party may petition any court of competent jurisdiction for
resolution of any objection which may have been made by the Company or
the Indemnified Party to the other party's selection of Independent
Counsel or for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court will
designate, and the person with respect to whom all objections are so
resolved or the person so appointed will act as Independent Counsel
under Section 6(e). The Company will pay any and all reasonable fees
and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(e), and the
Company will pay all reasonable fees and expenses incident to the
procedures of this Section 6(f), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the commencement of
any judicial proceeding or arbitration pursuant to this Agreement,
Independent Counsel will be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(g) If it is determined that the Indemnified Party is
entitled to indemnification, payment to the Indemnified Party will be
made within 10 days after such determination.
Section 7. Assumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement
to indemnification under this Agreement, the person or entity making
such determination will presume that the Indemnified Party is entitled
to indemnification under this Agreement if the Indemnified Party has
submitted a request for indemnification in accordance with Section 6(d)
and the Company will have the burden of proof to overcome that
presumption in connection with the making by any person or entity of
any determination contrary to that presumption.
(b) If the person or entity empowered or selected under
Section 6 to determine whether the Indemnified Party is entitled to
indemnification has not made a determination within 30 days after
receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification will be deemed to have
been made and the Indemnified Party will be entitled to such
indemnification, absent (i) a misstatement by the Indemnified Party of
a material fact, or an omission of a material fact necessary to make
the Indemnified Party's statement not materially misleading, in
connection with the request for indemnification or (ii) a prohibition
of such indemnification under applicable law. Notwithstanding the
foregoing, the provisions of this Section 7(b) will not apply if (i)
the determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 6(e) and if (A) within 15 days
after receipt by the Company of the request for such determination the
Board of Directors or the Disinterested Directors, if appropriate,
resolve to submit such determination to the stockholders for their
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consideration at an annual meeting thereof to be held within 75 days
after such receipt and such determination is made thereat, or (B) a
special meeting of stockholders is called within 15 days after such
receipt for the purpose of making such determination, such meeting is
held for such purpose within 60 days after having been so called and
such determination is made thereat, or (ii) the determination of
entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 6(e).
(c) The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement (with or
without court approval), conviction, or upon a plea of nolo contendere
or its equivalent, will not (except as otherwise expressly provided in
this Agreement) of itself adversely affect the right of the Indemnified
Party to indemnification or create a presumption that the Indemnified
Party did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal Proceeding, that the Indemnified Party
had reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, the
Indemnified Party will be deemed to have acted in good faith if the
Indemnified Party's action is based on the records or books of account
of the Company, including financial statements, or on information
supplied to the Indemnified Party by the directors, officers or
employees of the Company in the course of their duties, or on the
advice of legal counsel for the Company or on information or records
given or reports made to the Company by an independent certified public
accountant or by an appraiser or other expert selected with reasonable
care by the Company. In addition, the knowledge or actions, or failure
to act, of any director, officer, agent or employee of the Company will
not be imputed to the Indemnified Party for purposes of determining the
right to indemnification under this Agreement. The provisions of this
Section 7(d) will not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnified Party may be deemed to
have met the applicable standards of conduct set forth in this
Agreement.
Section 8. Remedies of Indemnified Party.
(a) In the event that (i) a determination is made
pursuant to Section 6 that the Indemnified Party is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is
not timely made pursuant to Section 5, (iii) no determination of
entitlement to indemnification has been made pursuant to Section 6(e)
within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant
to Section 3 within 10 days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within
10 days after a determination has been made that the Indemnified Party
is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 6 or 7, the Indemnified Party will be
entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. Alternatively, the Indemnified
Party, at his option, may seek an award in arbitration to be conducted
in Chicago, Illinois by a single
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arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The Indemnified Party will commence such
proceeding seeking an adjudication or an award in arbitration within
120 days following the date on which the Indemnified Party first has
the right to commence such proceeding pursuant to this Section 8(a).
The Company will not oppose the Indemnified Party's right to seek any
such adjudication or award in arbitration.
(b) In the event that a determination has been made
pursuant to Section 6(e) that the Indemnified Party is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 8 will be conducted in all respects as a
de novo trial or arbitration on the merits and the Indemnified Party
will not be prejudiced by reason of that adverse determination.
(c) If a determination has been made pursuant to Section
6(e) that the Indemnified Party is entitled to indemnification, the
Company will be bound by such determination in any judicial proceeding
or arbitration commenced pursuant to this Section 8 absent (i) a
misstatement by the Indemnified Party of a material fact, or an
omission of a material fact necessary to make the Indemnified Party's
statement not materially misleading, in connection with the request for
indemnification or (ii) a prohibition of such indemnification under
applicable law.
(d) In the event that the Indemnified Party, pursuant to
this Section 8, seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages for
breach of, this Agreement, the Indemnified Party will be entitled to
recover from the Company, and will be indemnified by the Company
against, any and all Expenses actually and reasonably incurred by him
in such judicial adjudication or arbitration, but only if he prevails
therein. If it is determined in such judicial adjudication or
arbitration that the Indemnified Party is entitled to receive part but
not all of the indemnification sought, the expenses incurred by the
Indemnified Party in connection with such judicial adjudication or
arbitration will be appropriately prorated. The Company will indemnify
the Indemnified Party against any and all expenses and, if requested by
the Indemnified Party, will (within 10 days after receipt by the
Company of a written request therefor) advance such expenses to the
Indemnified Party, which are incurred by the Indemnified Party in
connection with any action brought by the Indemnified Party to recover
under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether the Indemnified Party
ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery, as the case may be.
(e) The Company will be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8
that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and will stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of
this Agreement.
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Section 9. Agreements Relating to Change in Control.
(a) For a period of six years after the date of any
Change in Control, the Company will cause to be maintained in effect
the policies of directors and officers liability insurance and
fiduciary liability insurance currently maintained by the Company with
respect to claims arising from or relating to actions or omissions, or
alleged actions or omissions, occurring on or prior to the date of the
Change in Control. The Company may at its discretion substitute for
such policies currently maintained by the Company directors and
officers liability insurance and fiduciary liability insurance policies
with reputable and financially sound carriers providing for no less
favorable coverage. Notwithstanding the provisions of this Section
9(a), the Company will not be obligated to make annual premium payments
with respect to such policies of insurance to the extent such premiums
exceed 300 percent of the annual premiums paid by the Company as of the
date of this Agreement. If the annual premium costs necessary to
maintain such insurance coverage exceed the foregoing amount, the
Company will maintain the most advantageous policies of directors and
officers liability insurance and fiduciary liability insurance
obtainable for an annual premium equal to the foregoing amount.
(b) For a period of six years after the date of any
Change in Control, the Company will maintain in effect such provisions
in its Certificate of Incorporation providing for exculpation of
director and officer liability and indemnification to the fullest
extent permitted from time to time under the law of the State of
Delaware, which provisions will not be amended, except as required by
applicable law or except to make changes permitted by applicable law
that would enlarge the scope of the Indemnified Party's indemnification
rights thereunder. The foregoing will not be deemed to restrict the
right of the Company to modify the provisions of its Certificate of
Incorporation relating to exculpation of director and officer liability
or indemnification with respect to events or occurrences after the date
of the Change in Control so long as such modifications do not adversely
affect the rights of the Indemnified Party.
Section 10. Non-Exclusivity.
(a) The rights of indemnification as provided by this
Agreement will not be deemed exclusive of any other rights to which the
Indemnified Party may at any time be entitled under applicable law, the
Certificate of Incorporation of the Company, any agreement, any vote of
stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof will
limit or restrict any right of the Indemnified Party under this
Agreement in respect of any action taken or omitted by such the
Indemnified Party prior to such amendment, alteration or repeal. To the
extent that a change in the Delaware Law, whether by statute or
judicial decision, permits greater indemnification than would be
afforded currently under the Company's Certificate of Incorporation and
this Agreement, it is the intent of the parties hereto that the
Indemnified Party will enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other
right and remedy will be cumulative and in
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addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, will not
prevent the concurrent or subsequent assertion or employment of any
other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the
Company, the Indemnified Party will be covered by such policy or
policies in accordance with its or their terms to the maximum extent of
the coverage available for any such director, officer, employee, agent
or fiduciary under such policy or policies.
(c) In the event of any payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnified Party, who will execute all
papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The Company will not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder if and
to the extent that the Indemnified Party has otherwise actually
received such payment under any insurance policy, contract, agreement
or otherwise.
Section 11. Duration of Agreement. All agreements and obligations
of the Company contained in this Agreement will continue during the period the
Indemnified Party is a director, officer, employee or agent of the Company or is
serving at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise and will continue thereafter so long as the Indemnified Party may be
subject to any Proceeding (or any proceeding commenced under Section 8), whether
or not he is acting or serving in any such capacity at the time any liability or
Expense is incurred for which indemnification may be sought under this
Agreement. This Agreement will be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors (including
any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Company), assigns,
spouses, heirs, executors and personal and legal representatives.
Section 12. Security. To the extent requested by the Indemnified
Party and approved by the Company's Board of Directors, the Company may at any
time and from time to time provide security to the Indemnified Party for the
Company's obligations hereunder through an irrevocable blank line of credit,
funded trust or other collateral. Any such security, once provided to the
Indemnified Party, may not be revoked or released without the prior written
consent of the Indemnified Party.
Section 13. Miscellaneous.
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(a) No agreement modifying or amending this Agreement or
extending or waiving any provision of this Agreement will be valid or
binding unless it is in writing and is executed and delivered by or on
behalf of the party against which it is sought to be enforced.
(b) Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
(c) This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
(d) The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
(e) All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this
Agreement will be in writing and will be deemed to have been given when
delivered personally to the recipient or when sent to the recipient by
telecopy (receipt confirmed), one business day after the date when sent
to the recipient by reputable express courier service (charges prepaid)
or three business days after the date when mailed to the recipient by
certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications will be sent to
the Company and the Indemnified Party at the addresses indicated below:
If to the Company: Northfield Laboratories Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Secretary
If to the Indemnified Party: c/o Northfield Laboratories Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000-0000
or to such other address or to the attention of such other
party as the recipient party has specified by prior written notice to
the sending party.
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(f) This Agreement constitutes the entire agreement among
the parties and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, that may have
related in any way to the subject matter hereof.
(g) The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent
and no rule of strict construction will be applied against any party.
The use of the word "including" in this Agreement means "including
without limitation" and is intended by the parties to be by way of
example rather than limitation.
(h) ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY
AND INTERPRETATION OF THIS AGREEMENT AND THE SCHEDULES HERETO WILL BE
GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE
STATE OF DELAWARE.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
NORTHFIELD LABORATORIES INC.
By_______________________________
Its______________________________
_________________________________
