EXHIBIT 10.19
INDEMNIFICATION CONTRACT
------------------------
This Agreement, made and entered into as of this __ day of ___________,
1996 ("Agreement"), by and between BOSTON BIOMEDICA, INC., a Massachusetts
corporation (the "Company"), and ( ) (the "Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors, officers or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation; and
WHEREAS, the current impracticability of obtaining adequate insurance
and the uncertainties relating to indemnification have increased the difficulty
of attracting and retaining such persons; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that
Indemnitee be indemnified to the fullest extent permitted.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
ARTICLE I
Definitions
-----------
For purposes of this Agreement the following terms shall have the
meanings indicated:
1.01 "Board" shall mean the Board of Directors of the Company.
1.02 "Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other Enterprise which such person is or was serving at the express written
request of the Company.
1.03 "Court" means the court in which the Proceeding in respect of which
indemnification is sought by the Indemnitee shall have been brought or is
pending, or another court having subject matter jurisdiction and personal
jurisdiction over the parties.
1.04 "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
1.05 "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the express written request of the Company
as a director, officer, employee, agent, trustee or fiduciary.
1.06 "Expenses" shall include, without limitation, 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, facsimile transmission
charges, and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to prosecute or
defend, investigating or being or preparing to be a witness in a Proceeding.
1.07 "Good Faith" shall mean Indemnitee having acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, in the case of an Enterprise which is an employee
benefit plan, the best interests of the participants or beneficiaries of said
plan, as the case may be, and, with respect to any Proceeding which is criminal
in nature, having had no reasonable cause to believe Indemnitee's conduct was
unlawful.
1.08 "Improper Personal Benefit" shall include, but not be limited to,
the personal gain in fact by reason of a person's Corporate Status of a
financial profit, monies or other advantage not also accruing to the benefit of
the Company or to the stockholders generally and which is unrelated to his usual
compensation including, but not limited to, (i) in exchange for the exercise of
influence over the Company's affairs, (ii) as a result of the diversion of
corporate opportunity, or (iii) pursuant to the use or communication of
confidential or inside information for the purpose of generating a profit from
trading in the Company's securities. Notwithstanding the foregoing, "Improper
Personal Benefit" shall not include any benefit, directly or indirectly, related
to actions taken in order to evaluate, discourage, resist, prevent or negotiate
any transaction with or proposal from any person or entity seeking control of,
or a controlling interest in, the Company.
1.09 "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and may include law firms or
members thereof that are regularly retained by the Company but not any other
party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the standards of professional conduct then prevailing and
applicable to such counsel, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement.
1.10 "Officer" means the president, vice presidents, treasurer,
assistant treasurer(s), clerk, assistant clerk and such other executive officers
as are appointed by the board of directors of the Company or any other
Enterprise, as the case may be.
1.11 "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation (including any internal corporate
investigation), administrative hearing or any other actual, threatened or
completed proceeding, whether civil, criminal, administrative or
-2-
investigative, other than one initiated by Indemnitee. For purposes of the
foregoing sentence, a "Proceeding" shall not be deemed to have been initiated by
Indemnitee where Indemnitee seeks, pursuant to Article VIII of this Agreement,
to enforce Indemnitee's rights under this Agreement.
ARTICLE II
Term of Agreement
-----------------
This Agreement shall continue until and terminate upon the later of: (i)
ten (10) years after the date that Indemnitee shall have ceased to serve as a
director, officer, employee, agent, trustee or fiduciary of the Company or of
any other Enterprise; or (ii) the final termination of all pending Proceedings
in respect of which Indemnitee is granted rights of indemnification or
advancement of expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Article VIII of this Agreement relating thereto.
ARTICLE III
Services by Indemnitee, Notice of Proceedings
---------------------------------------------
3.01 Services. Indemnitee agrees to serve or continue to serve as a
Director or Officer of the Company for so long as he is duly elected or
appointed. Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any obligation imposed
by operation of law).
3.02 Notice of Proceeding. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder, but the omission so to notify the Company shall not relieve
the Company from its obligations hereunder.
ARTICLE IV
Indemnification
---------------
4.01 In General. In connection with any Proceeding, the Company shall
indemnify and advance Expenses to Indemnitee serving as a Director of the
Company, and may, at the discretion of the Board, indemnify and advance Expenses
to Indemnitee serving as an Officer of the Company, as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may hereafter from time
to time permit.
4.02 Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled, subject to Section 4.01 hereof, to the
rights of indemnification provided in this Section 4.02 if, by reason of
Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a
party to or is otherwise involved in any Proceeding, other than a Proceeding by
or in the right of the Company. Indemnitee shall be indemnified, subject to
Section 4.01 hereof, against Expenses, judgments, penalties, fines and amounts
paid in settlement, actually
-3-
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted
in Good Faith and such Indemnitee has not been adjudged during the course of
such Proceeding to have derived an Improper Personal Benefit from the
transaction or occurrence forming the basis of such Proceeding.
4.03 Proceedings by or in the Right of the Company.
(a) Indemnitee shall be entitled, subject to Section 4.01 hereof, to the
rights of indemnification provided in this Section 4.03 if, by reason of
Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a
party to or is otherwise involved in any Proceeding brought by or in the right
of the Company to procure a judgment in its favor. Indemnitee shall be
indemnified, subject to Section 4.01 hereof, against Expenses, judgments,
penalties, and amounts paid in settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such Proceeding if
Indemnitee acted in Good Faith and such Indemnitee has not been adjudged during
the course of such Proceeding to have derived an Improper Personal Benefit from
the transaction or occurrence forming the basis of such Proceeding.
Notwithstanding the foregoing, no such indemnification shall be made in respect
of any claim, issue or matter in such Proceeding as to which Indemnitee shall
have been adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification shall nevertheless be made by the Company in such event if and
only to the extent that the Court which is considering the matter shall so
determine.
4.04 Indemnification of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee's Corporate Status, a party to or is
otherwise involved in and is successful, on the merits or otherwise, in any
Proceeding, Indemnitee shall be indemnified, subject to Section 4.01 hereof, to
the maximum extent permitted by law, against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee, subject to Section 4.01
hereof, to the maximum extent permitted by law, against all Expenses, judgments,
penalties, fines, and amounts paid in settlement, actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 4.04
and without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
4.05 Indemnification for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee shall
be indemnified, subject to Section 4.01 hereof, against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith.
ARTICLE V
-4-
Advancement of Expenses
-----------------------
Notwithstanding any provision to the contrary in Article VI, the Company
(acting through the President or any Vice President of the Company) shall
advance all reasonable Expenses which, by reason of Indemnitee's Corporate
Status, were incurred by or on behalf of Indemnitee serving as a Director of the
Company in connection with any Proceeding, within thirty (30) days after the
receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances, whether prior to or after final disposition of such
Proceeding. Notwithstanding any provision to the contrary in Article VI, the
Company (acting through the President or any Vice President of the Company) may,
at the discretion of the Board, advance all reasonable Expenses which, by reason
of Indemnitee's Corporate Status, were incurred by or on behalf of Indemnitee
serving as an Officer of the Company in connection with any Proceeding, within
thirty (30) days after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay
any Expenses if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Any advance and undertakings
to repay pursuant to this Article V shall be unsecured and interest free.
Advancement of Expenses pursuant to this Article V made to an Indemnitee serving
as a Director of the Company shall not require approval of the Board of
Directors or the stockholders of the Company, or of any other person or body.
The Clerk of the Company shall promptly advise the Board in writing of the
request for advancement of Expenses, of the amount and other details of the
advance and of the undertaking to make repayment pursuant to this Article V.
ARTICLE VI
Procedures for Determination of Entitlement to Indemnification and Defense of
-----------------------------------------------------------------------------
Claims
------
6.01 Initial Request. To obtain indemnification under this Agreement
(other than advancement of Expenses pursuant to Article V), Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonable necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Clerk of the Company shall promptly advise the
Board in writing that Indemnitee has requested indemnification.
6.02 Method of Determination. A determination (if required by applicable
law in the specific case) with respect to Indemnitee's entitlement to
indemnification shall be made (a) by the Board by a majority vote of a quorum
consisting of Disinterested Directors, or (b) in the event that a quorum of the
Board consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee, or (c) by the holders of a majority of the votes of the outstanding
stock at the time entitled to vote on matters other than the election or removal
of directors, voting as a single class, including the stock of the Covered
Person seeking indemnification.
-5-
6.03 Selection, Payment, Discharge, of Independent Counsel. In the event
the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6.02 of this Agreement, the Independent Counsel
shall be selected, paid, and discharged in the following manner:
(a) The Independent Counsel shall be selected by the Board,
and the Company shall give written notice to Indemnitee
advising Indemnitee of the identity of the Independent
Counsel so selected.
(b) Following the initial selection described in clause (a)
of this Section 6.03, Indemnitee may, within seven (7)
days after such written notice of selection has been
given, deliver to the Company a written objection to
such selection. 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 1.10 of this Agreement, and the
objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as
Independent Counsel. If such written objection is made,
the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has
determined that such objection is without merit.
(c) Either the Company or Indemnitee may petition a Court
if the parties have been unable to agree on the
selection of Independent Counsel within twenty (20)
days after submission by Indemnitee of a written
request for indemnification pursuant to Section 6.01 of
this Agreement. Such petition may request a
determination whether an objection to the party's
selection is without merit and/or seek the appointment
as Independent Counsel of a person selected by the
Court or by such other person as the Court shall
designate. A person so appointed shall act as
Independent Counsel under Section 6.02 of this
Agreement.
(d) The Company shall pay any and all reasonable fees of
Independent Counsel and expenses incurred by such
Independent Counsel in connection with acting pursuant
to this Agreement, and the Company shall pay all
reasonable fees and expenses incident to the procedures
of this Section 6.03, regardless of the manner in which
such Independent Counsel was selected or appointed.
(e) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8.02 of this Agreement,
Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to
the applicable standards of professional conduct then
prevailing).
6.04 Cooperation. Indemnitee shall cooperate with the person, persons or
entity making the determination with respect to Indemnitee's entitlement to
indemnification under this Agreement, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from
-6-
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
6.05 Defense of Claim. With respect to any Proceeding to which
Indemnitee shall have requested indemnification in accordance with Section 6.01:
(a) The Company will be entitled to participate in the
defense at its own expense.
(b) Except as otherwise provided below, the Company jointly
with any other indemnifying party will be entitled to
assume the defense with counsel reasonably satisfactory
to Indemnitee. After notice from the Company to the
Indemnitee of its election to assume the defense of a
suit, the Company will not be liable to the Indemnitee
under this Agreement for any legal or other expenses
subsequently incurred by the Indemnitee in connection
with the defense of the Proceeding other than
reasonable costs of investigation or as otherwise
provided below. The Indemnitee shall have the right to
employ his own counsel in such Proceeding but the fees
and expenses of such counsel incurred after notice from
the Company of its assumption of the defense shall be
at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall
have concluded reasonably that there may be a conflict
of interest between the Company and the Indemnitee in
the conduct of the defense of such action and such
conclusion is confirmed in writing by the Company's
outside counsel regularly employed by it in connection
with corporate matters or (iii) the Company shall not
in fact have employed counsel to assume the defense of
such Proceeding, in each of which cases the fees and
expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume
the defense of any Proceeding brought by or in the
right of the Company or as to which the Indemnitee
shall have made the conclusion provided for in (ii)
above and such conclusion shall have been so confirmed
by the Company's said outside counsel.
(c) Notwithstanding any provision of this Agreement to the
contrary, the Company shall not be liable to indemnify
the Indemnitee under this Article of any amounts paid
in settlement of any Proceeding or claim effected
without its written consent. The Company shall not
settle any Proceeding or claim in any manner which
would impose any penalty, limitation or
disqualification of the Indemnitee for any purpose
without the Indemnitee's written consent. Neither the
Company nor the Indemnitee will unreasonably withhold
their consent to any proposed settlement.
-7-
6.06 Payment. If it is determined that Indemnitee is entitled to
indemnification not covered by defense of the claim afforded under Section 6.05
above, payment to Indemnitee shall be made within ten (10) days after such
determination.
ARTICLE VII
Presumptions and Effect of Certain Proceedings
----------------------------------------------
7.01 Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 6.01 of this Agreement, and the Company shall have
the burden of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to that
presumption.
7.02 Effect of Other Proceedings. The termination of any Proceeding or
of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in Good Faith.
7.03 Reliance as Safe Harbor. For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the Officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made to
the Enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise. The provisions
of this Section 7.03 shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
7.04 Actions of Others. The knowledge and/or actions, or failure to act,
of any Director, Officer, employee, agent, trustee or fiduciary of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
ARTICLE VIII
Remedies of Indemnitee
----------------------
8.01 Application. This Article VIII shall apply in the event of a
Dispute. For purposes of this Article, "Dispute", shall mean any of the
following events:
(a) a determination is made pursuant to Article VI of this
Agreement that Indemnitee is not entitled to
indemnification under this Agreement;
-8-
(b) advancement of Expenses is not timely made pursuant to
Article V of this Agreement;
(c) the determination of entitlement to be made pursuant to
Section 6.02 of this Agreement has not been made within
sixty (60) days after receipt by the Company of the
request for indemnification;
(d) payment of indemnification is not made pursuant to
Section 4.05 of this Agreement within ten (10) days
after receipt by the Company of a written request
therefor; or
(e) notice of election by the Company to assume defense of
a claim as provided for in Section 6.05 or payment of
indemnification, as the case may be, is not given or
made within ten (10) days after a determination has
been made that Indemnitee is entitled to
indemnification or such determination is deemed to have
been made pursuant to Article VI of this Agreement.
8.02 Adjudication. In the event of a Dispute, Indemnitee shall be
entitled to an adjudication in an appropriate Court of Indemnitee's entitlement
to such indemnification or advancement of Expenses. Alternatively, Indemnitee,
at Indemnitee's option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within one hundred eighty (180) days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 8.02. The Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
8.03 De Novo Review. In the event that a determination shall have been
made pursuant to Article VI of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Article VIII shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any such proceeding or arbitration, the Company
shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
8.04 Company Bound. If a determination shall have been made or deemed to
have been made pursuant to Article VI of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration absent (i) a misstatement by Indemnitee
of a material fact, or any omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
8.05 Procedures Valid. The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Article VIII
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
-9-
8.06 Expenses of Adjudication. In the event that Indemnitee, pursuant to
this Article VIII, seeks a judicial adjudication of or an award in arbitration
to enforce Indemnitee's rights under, or to recover damages for breach of, this
Agreement, Indemnitee shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 1.08 of this Agreement)
actually and reasonably incurred by Indemnitee in such adjudication or
arbitration, but only if Indemnitee prevails therein. If it shall be determined
in such adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or advancement of Expenses sought, the
expenses incurred by Indemnitee in connection with such adjudication or
arbitration shall be appropriately prorated.
ARTICLE IX
Non-Exclusivity, Insurance, Subrogation
---------------------------------------
9.01 Non-Exclusivity. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Amended and Restated Articles of Organization, the
By-Laws, any agreement, a vote of shareholders or a resolution of directors, or
otherwise. No amendment, alteration, rescission or replacement of this Agreement
or any provision hereof shall be effective as to Indemnitee with respect to any
action taken or omitted by such Indemnitee in Indemnitee's Corporate Status
prior to such amendment, alteration, rescission or replacement.
9.02 Insurance. The Company may maintain an insurance policy or policies
against liability arising out of this Agreement or otherwise.
9.03 Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall 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.
9.04 No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
ARTICLE X
General Provisions
------------------
-10-
10.01 Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's legal representatives, heirs, executors and
administrators.
10.02 Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including
without limitation, each portion of any Section of this
Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion
of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or
unenforceable.
10.03 No Adequate Remedy. The parties declare that it is impossible to
measure in money the damages which will accrue to either party by reason of a
failure to perform any of the obligations under this Agreement. Therefore, if
either party shall institute any action or proceeding to enforce the provisions
hereof, such party against whom such action or proceeding is brought hereby
waives the claim or defense that such party has an adequate remedy at law, and
such party shall not urge in any such action or proceeding the claim or defense
that the other party has an adequate remedy at law.
10.04 Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
10.05 Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
10.06 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, (ii) sent by prepaid commercial
overnight courier, or (iii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
If to Indemnitee, to: As shown with Indemnitee's
Signature below.
If to the Company, to: BOSTON BIOMEDICA, INC.
-11-
375 West Street
West Bridgewater, Massachusetts 02379
Attention: Richard T. Schumacher, President
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
10.07 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Massachusetts without application of the conflict of laws
principles thereof.
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the __ day of ________, 1996.
BOSTON BIOMEDICA, INC.
By: ___________________________
Richard T. Schumacher, President
INDEMNITEE
-------------------------------
Name:
Address: _______________________
_______________________
_______________________