Exhibit 10.1
COMPENSATION AND INDEMNIFICATION
AGREEMENT
This COMPENSATION AND INDEMNIFICATION AGREEMENT
is made as of this 2nd day of December, 2007 (this “
Agreement ”) by and among Bruker BioSciences
Corporation, a Delaware corporation (the “ Corporation
”), and each of William A. Linton, Collin D’Silva and
Richard D. Kniss (each, a “ Director ” and
collectively, the “ Directors ”).
WHEREAS, the Corporation’s Board of
Directors (the “ Board of Directors ”), at a
meeting held on August 1, 2007, appointed the Directors as members
of a Special Committee of the Board of Directors of the Corporation
(the “ Special Committee ”) to consider,
evaluate, investigate, negotiate the terms and conditions of,
recommend to the entire Board of Directors if it considers it in
the best interests of the stockholders of the Corporation
unaffiliated with the Laukien family to do so, and reject it if it
considers it in the best interests of the stockholders to do so, an
acquisition by the Corporation of Bruker BioSpin Inc., a Delaware
corporation, Bruker BioSpin Invest AG, a Swiss corporation, Bruker
Physik GmbH, a German limited liability company and Techneon AG, a
Swiss corporation (the “ Transaction ”), and to
make such reports to the entire Board of Directors at such times
and in such manner as the Special Committee considers appropriate
with respect to such possible transaction;
WHEREAS, in order to induce the Directors to
serve on the Special Committee and to accept the additional duties,
responsibilities and burdens of such service, the Corporation
wishes to provide them with the compensation and indemnification
arrangements set forth herein; and
WHEREAS, the Directors are willing to serve and
continue to serve on the Special Committee on the terms set forth
herein.
NOW, THEREFORE, in consideration of the
foregoing, the parties hereto do hereby agree as
follows:
Section
1.
Service on the Special Committee . Each Director hereby
agrees to serve as a member of the Special Committee on the terms
provided for herein so long as such appointment by the Board shall
remain in effect. Each Director may, however, resign from such
position at any time and for any reason. The Corporation’s
obligation to indemnify each such Director as set forth in this
Agreement shall continue in full force and effect notwithstanding
any such termination of appointment or resignation.
Section
2.
Compensation and Expense Reimbursement . In return for his
services as a member of the Special Committee, each Director shall
be entitled to receive from the Corporation compensation in the
amount of $80,000 ($100,000 in the case of Mr. Linton, Chairman of
the Special Committee). In addition, each Director shall be
reimbursed by the Corporation for his reasonable out-of-pocket
travel and other expenses incurred in connection with his service
on the Special Committee.
Section
3.
General Indemnification .
(a)
Article 10 of the Corporation’s By-Laws currently provides
members of the Board of Directors with the following general right
to indemnification:
The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a
Director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorney’s fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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 Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person 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 Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b)
The Corporation hereby confirms that the rights conferred upon the
members of its Board of Directors pursuant to Article 10 of its
By-Laws are fully applicable to the Directors in their capacity as
members of the Special Committee. Any subsequent amendment to such
By-Laws which is intended to diminish, or has the effect of
diminishing, the rights of directors to indemnification shall not
be applicable to the Directors for their service on the Special
Committee, whether such service was rendered before or after the
adoption of such amendment.
(c)
The Corporation hereby agrees to indemnify and hold harmless
(including, without limitation, by advancement of expenses) each
Director with respect to his service on, and any matter or
transaction considered by, the Special Committee to the fullest
extent authorized or permitted by law.
(d)
In addition to (but not in duplication of) the general right to
indemnification set forth in Article 10 of its By-Laws and this
Section 3 , and any other rights to indemnification to which
the Directors are entitled under applicable law or otherwise, the
Corporation hereby agrees to provide each Director with respect to
his service on, and any matter or transaction considered by, the
Special Committee the specific rights to indemnification set forth
in Section 4 through Section 11 of this
Agreement.
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Section
4.
Indemnification for a Proceeding, etc .
(a)
Proceedings Other Than Proceedings by or in the Right of the
Corporation . Each Director shall be entitled to the rights of
indemnification provided in this Section 4(a) if, by reason
of his status as a person who is or was a member of the Special
Committee or was otherwise a director of the Company (“
Corporate Status ”), he is, or is threatened to be
made, a party to or participant in any Proceeding (as hereinafter
defined) other than a Proceeding by or in the right of the
Corporation. Pursuant to this Section 4(a) , each Director
shall be indemnified against all expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such 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 Corporation and, with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct
was unlawful. For purposes of this Agreement, “fines”
shall include, without limitation, excise taxes assessed against
the Director with respect to an employee benefit plan.
(b)
Proceedings by or in the Right of the Corporation . Each
Director shall be entitled to the rights of indemnification
provided in this Section 4(b) if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to or
participant in any Proceeding brought by or in the right of the
Corporation to procure a judgment in its favor. Pursuant to this
Section 4(b) , each Director shall be indemnified against
all expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding 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 Corporation; provided , however,
that, if applicable law so provides, no indemnification against
such expenses shall be made in respect of any claim, issue or
matter in such Proceeding as to which such Director shall have been
finally adjudged to be liable to the Corporation unless and to the
extent that the Court of Chancery of the State of Delaware shall
determine that such indemnification may be made.
(c)
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, to the extent that a Director is, by reason of his
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall 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 a Director 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 Corporation shall indemnify such Director 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 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.
(d)
Additional Indemnity . In addition to, and without regard to
any limitations on, the indemnification provided for in Section
4(a) - (c) , the Corporation shall
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and
hereby does indemnify and hold harmless each Director against all
expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf
if, by reason of his Corporate Status he is, or is threatened to be
made, a party to or participant in any Proceeding (including,
without limitation, a Proceeding by or in the right of the
Corporation). The only limitation that shall exist upon the
Corporation’s obligations pursuant to this Agreement shall be
that the Corporation shall not be obligated to make any payment to
a Director that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections 6 ,
7 and 8 hereof) to be unlawful under Delaware
law.
(e)
Contribution in the Event of Joint Liability.
(i) Whether or not the
indemnification provided in Section 4(a) - (d) hereof
is available, in respect of any threatened, pending or completed
action, suit or proceeding in which Corporation is jointly liable
with any Director (or would be if joined in such action, suit or
proceeding), Corporation shall pay, in the first instance, the
entire amount of any judgment or settlement of such action, suit or
proceeding without requiring such Director to contribute to such
payment and the Corporation hereby waives and relinquishes any
right of contribution it may have against such Director. The
Corporation shall not enter into any settlement of any action, suit
or proceeding in which the Corporation is jointly liable with a
Director (or would be if joined in such action, suit or proceeding)
unless such settlement provides for a full and final release of all
claims asserted against such Director.
(ii) Without diminishing or
impairing the obligations of the Corporation set forth in the
preceding subparagraph, if, for any reason, a Director shall elect
or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed action, suit or
proceeding in which Corporation is jointly liable with such
Director (or would be if joined in such action, suit or
proceeding), the Corporation shall contribute to the amount of
expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred and paid or payable by such Director in
proportion to the relative benefits received by the Corporation and
all officers, directors or employees of the Corporation other than
such Director who are jointly liable with him (or would be if
joined in such action, suit or proceeding), on the one hand, and
the Director, on the other hand, from the transaction from which
such action, suit or proceeding arose; provided , however,
that the proportion determined on the basis of relative benefit
may, to the extent necessary to conform to law, be further adjusted
by reference to the relative fault of the Corporation and all
officers, directors or employees of the Corporation other than such
Director who are jointly liable with the Director (or would be if
joined in such action, suit or proceeding), on the one hand, and
the Director, on the other hand, in connection with the events that
resulted in such expenses, judgments, fines or settlement amounts,
as well as any other equitable considerations which the law may
require to be considered. The relative fault of the Corporation and
all officers, directors or employees of the Corporation other than
the Director who are jointly liable with him (or would be if joined
in such action, suit or proceeding), on the one hand, and the
Director, on the other hand, shall be determined by reference to,
among other things, the degree to which their actions were
motivated by intent to gain personal profit
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or
advantage, the degree to which their liability is primary or
secondary, and the degree to which their conduct is active or
passive.
(iii) The Corporation hereby agrees to
fully indemnify and hold each Director harmless from any claims of
contribution which may be brought by officers, directors or
employees of the Corporation who may be jointly liable with such
Director.
Section
5.
Advancement of Expenses and Costs . If a Director is made or
threatened to be made a party to a Proceeding, the Director is
entitled, upon written request to the Corporation, to payment or
reimbursement by the Corporation, within ten (10) days of receipt
of the request, of all reasonable expenses, including, without
limitation, attorneys’ fees and disbursements, incurred by
the Director, whether prior to or after the final disposition of
the Proceeding. Such request shall reasonably evidence the expenses
incurred by the Director and shall include or be preceded or
accompanied by an undertaking by or on behalf of such Director to
repay any expenses advanced if it shall ultimately be determined
that such Director is not entitled to such expenses. Any advances
and undertakings to repay pursuant to this Section 5 shall
be unsecured and interest free and shall be accepted without
reference to financial ability to make the repayment. A
Director’s entitlement to such expenses shall include those
incurred in connection with any Proceeding by such Director seeking
an adjudication pursuant to this Agreement.
Section
6.
Determination of Entitlement to Indemnification or Advances
. It is the intent of this Agreement to secure for each Director
rights of indemnity that are as favorable as may be permitted under
the law and public policy of the State of Delaware. Accordingly,
the parties agree that the following procedures and presumptions
shall apply in the event of any quest
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