Exhibit 10.33
INDEMNIFICATION AGREEMENT
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This Agreement is made as of the 13th day of July, 2000, by and between
Xxxxxxxx Technical Specialties LLC, a Delaware limited liability company
("Xxxxxxxx"), and HemaSure Inc., a Delaware corporation ("HemaSure" or
"Purchaser").
WHEREAS, Xxxxxxxx has been engaged by HemaSure to manufacture Xxxxxxxx
Grade 147 to specifications designed by HemaSure and provided to Xxxxxxxx by
HemaSure (the "Product").
WHEREAS, the parties hereto intend and desire that HemaSure defend,
indemnify and hold harmless Xxxxxxxx, its affiliates, officers, directors,
employees, agents and representatives (collectively, the "Xxxxxxxx Group") from
and against certain liabilities associated with Xxxxxxxx'x manufacture of the
Product on behalf of HemaSure for use in HemaSure's leukoreduction filters, and
that Xxxxxxxx defend, indemnify and hold harmless HemaSure, its affiliates,
officers, directors, employees, agents and representatives (collectively, the
"HemaSure Group") from and against certain other liabilities.
NOW, THEREFORE, in order to effectuate these intentions and desires,
the parties hereby agree as follows:
1. Indemnification: Subject to the terms and conditions of this
Agreement,
(1) HemaSure hereby agrees to defend, indemnify and hold
harmless each member of the Xxxxxxxx Group from and
against all demands, claims, proceedings,
investigations (civil, criminal or administrative),
actions or
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causes of action (herein referred to individually as a
"Claim" and collectively as "Claims") and all
assessments, fines, penalties, losses, damages,
liabilities, costs or expenses (including, without
limitation, interest, penalties, court costs and
reasonable attorney's fees and expenses) (individually
a "Loss" and collectively "Losses"), asserted against,
resulting to, imposed upon or incurred by any member of
the Xxxxxxxx Group, directly or indirectly, by reason
of or resulting or arising out of Product
specifications provided to Xxxxxxxx by HemaSure and
HemaSure's use, storage, distribution, sale, offer to
sell, advertising or promotion of the Product for use
in connection with its leukoreduction filters and in
the field of leukoreduction. HemaSure does not, and
shall not defend, indemnify or hold harmless the
Xxxxxxxx Group from and against any Claims or Losses
attributable to the negligence or reckless or willful
misconduct of Xxxxxxxx in the manufacture, storing or
shipping of the Product, or otherwise with respect to
the design, manufacture, or use by Xxxxxxxx of any
other filtration media, or any derivative thereof.
(2) The obligations and liabilities of HemaSure under Section 1(1)
with respect to Claims and Losses resulting from the assertion
of liability by third parties against Xxxxxxxx or any member of
the Xxxxxxxx Group shall be subject to the following terms and
conditions:
(1) Xxxxxxxx or any other member of the Xxxxxxxx Group
against whom any such Claim is asserted will give
HemaSure prompt written notice of any such Claim, and
HemaSure may undertake the defense thereof by
representatives of their own choosing, and will
reasonably consult, as necessary, with Xxxxxxxx or any
such other member during the course thereof and
Xxxxxxxx and any such other member will cooperate fully
in any such defense, but at the cost of HemaSure;
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provided, however, the omission to so notify HemaSure
shall not relieve HemaSure of any liability it may have
to Xxxxxxxx or any such other member of the Xxxxxxxx
Group, except to the extent such omission to notify
prejudices the rights, or affects the obligations or
liabilities, of HemaSure;
(2) In the event HemaSure, within the shorter of (A) 15
business days after written notice of any claim or (B)
the number of days that would enable Xxxxxxxx to
respond to legal process or pleadings related to a
Claim on a timely basis, fails to assume the defense of
a Claims as herein provided, Xxxxxxxx or any such other
member of the Xxxxxxxx Group against whom such Claim
has been asserted will have the right to undertake the
defense, compromise or settlement of such Claim at
HemaSure's cost and expense; and
(3) HemaSure shall not, without Xxxxxxxx'x or such other
member's prior written consent, settle or compromise
any Claim or consent to entry of any judgment in
respect thereof, unless HemaSure delivers to Xxxxxxxx
or such member in advance its written agreement in form
and substance reasonably satisfactory to Xxxxxxxx or
such member that provides that amounts paid and
incurred or to be incurred by Xxxxxxxx or such member
in connection with such Claim shall be paid
simultaneously by HemaSure to Xxxxxxxx or such member
and such settlement, compromise or consent includes, as
an unconditional term thereof, the giving by the
claimant or plaintiff to Xxxxxxxx or such member, as
the case may be, of a release reasonably satisfactory
in form and substance to Xxxxxxxx or such member.
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2. Insurance: HemaSure shall obtain and maintain throughout the
term of this Agreement, at its own expense, commercial general
liability insurance and product liability insurance providing
coverage and defense costs for any Xxxxxxxx Group Claims or
Losses which are indemnifiable under this Agreement. Such
insurance shall list Xxxxxxxx as an additional named insured
thereunder and shall require thirty (30) days written notice to
be given to Xxxxxxxx prior to any cancellation or material
change thereof. The limits of each such insurance policy shall
not be less than Ten Million Dollars ($10,000,000.) Upon
execution of this Agreement and at other times upon reasonable
written request, HemaSure shall provide Xxxxxxxx with fully
paid Certificates of Insurance evidencing the same. The
foregoing insurance shall be in addition to and not in lieu of
HemaSure's obligation to defend, indemnify and hold the
Xxxxxxxx Group harmless hereunder, nor shall HemaSure's
obligation to procure and maintain such insurance operate as a
limitation on the amount of HemaSure's liability under this
Agreement to the dollar amount of any such insurance; however,
it is understood and agreed that any such insurance proceeds
may be utilized by HemaSure to satisfy any indemnification
claims hereunder by any member of the Xxxxxxxx Group.
3. Remedies Cumulative: The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party
hereto of any other rights or the seeking of any other remedies
against the other parties hereto.
4. Patent Disclaimer: Xxxxxxxx makes no representations or
warranties and has not ascertained whether or not the Product
can be manufactured, used, sold or offered for sale free of any
infringement difficulties with respect to third party patent or
registered design rights. It is the responsibility of HemaSure,
should it so desire, to conduct any prior art searches and take
any other steps HemaSure deems necessary
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to ascertain whether or not the Product can be manufactured,
used, sold or offered for sale without fear of infringement
difficulties. Xxxxxxxx does not represent or warrant that the
Product does not infringe upon the rights of any third party.
Xxxxxxxx does not represent or warrant that HemaSure's
manufacture, use, storage, distribution, sale, offer to sell,
advertising or promotion of the Product will not infringe upon
the rights of any third party. Consistent with the terms of
paragraph 1 relating to indemnity, HemaSure hereby agrees to
indemnify and defend Xxxxxxxx, and to be solely responsible for
and to hold Xxxxxxxx harmless, from any Claims or Losses
relating to alleged infringement of any third-party patent or
registered design rights or any other proprietary rights to
intellectual property, whether asserted against Xxxxxxxx or the
Xxxxxxxx Group or HemaSure, or both, arising out of or
connected with the product specifications provided to Xxxxxxxx
by HemaSure, or HemaSure's use, storage, distribution, sale,
offer to sell, advertising or promotion of the Product in its
leukoreduction filters. HemaSure does not, and shall not,
indemnify Xxxxxxxx or any member of the Xxxxxxxx Group from and
against any Claims or Losses attributable to the negligence or
reckless or willful misconduct of Xxxxxxxx in the manufacture,
storing or shipping of any other filtration media, or otherwise
with respect to the design, manufacture, or use by Xxxxxxxx of
any other filtration media, or any derivative thereof.
Conversely, Xxxxxxxx shall indemnify and hold harmless HemaSure
and the HemaSure Group from and against any Claims or Losses
HemaSure may incur or suffer as a result of the matters
described in the preceding sentence.
5. Consideration: The parties hereby acknowledge and confirm that
this Agreement is supported by valid consideration exchanged
between the parties. In consideration for HemaSure's promises
and covenants as set forth in this Agreement, Xxxxxxxx will
continue to manufacture the Product for HemaSure. This
Agreement shall not create any binding obligation between the
parties to either purchase or manufacture any
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specific quantity or the Product, or to continue to purchase or
manufacture the Product.
6. Severability: In the event that any provision of this Agreement
shall be held void, voidable, or unenforceable, the remaining
provisions hereof shall remain in full force and effect.
7. Prior Agreements. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof
and supercedes all prior arrangements, agreements or
understandings with respect to such matters, including, without
limitation, the Indemnification Agreement dated July 1999, by
and between HemaSure and Xxxxxxxx Filtration Inc.
8. Governing Law and interpretation : This Agreement shall be
construed in accordance with and be governed by the laws of the
State of Delaware, without reference to its conflict of law
doctrines. This Agreement shall be interpreted and enforced
according to its plain and ordinary meaning, and shall not be
construed against either party on the basis of authorship.
This Agreement cannot be modified or canceled except by written
consent, signed by both parties.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereby
execute this Agreement on the date set forth above.
HEMASURE INC.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By:/s/Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Xx. V.P. Finance and Administration
XXXXXXXX TECHNICAL SPECIALTIES LLC
By:/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
President
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