Exhibit 10.3A
IMMUCELL
CORPORATION
INDEMNIFICATION
AGREEMENT
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Director:
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_________________________
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Effective Date:
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_________________________
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THIS AGREEMENT
is made and entered between ImmuCell
Corporation, a Delaware corporation (the “Corporation”,
which term shall include any one or more of its subsidiaries where
appropriate), and the above-named director
(“Indemnitee”), and shall be effective from and after
the Effective Date set forth above.
WHEREAS , the Board of Directors of the Corporation (the
“Board”) has determined that it is reasonable and
prudent for the Corporation contractually to obligate itself to
indemnify its directors to the fullest extent permitted by
applicable law so that directors will be able to make business
judgments, and otherwise serve the Corporation, free from undue
concern that they may be called upon to bear personally the risk
and expense of claims by those who seek to challenge actions taken
in good faith by directors;
WHEREAS , the shareholders in 1989 voted to approve and
ratify a form of indemnification agreement substantially similar to
this Agreement, which prior form authorized the Corporation to
amend the agreement from time to time to reflect changes in
Delaware law or for other reasons;
WHEREAS , pursuant to such prior authority, this
Agreement is intended to update and replace the prior form of
indemnification agreement;
NOW , THEREFORE , in consideration of the
mutual promises contained herein and Indemnitee’s continued
service as a member of the Board, and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the Corporation and Indemnitee do hereby covenant and
agree as follows:
1. Services by
Indemnitee. This Agreement shall not impose any
obligation on the Indemnitee or the Corporation to continue the
Indemnitee’s position with the Corporation beyond any period
otherwise applicable.
2. General.
The Corporation shall
indemnify, and shall advance Expenses (as hereinafter defined) to,
Indemnitee as provided in this Agreement to the fullest extent
permitted by law.
3. Proceedings Other Than
Proceedings by or in the Right of the Corporation.
Indemnitee shall be
entitled to the rights of indemnification provided in this
Section 3 if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party
to any threatened, pending or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the
Corporation. Pursuant to this Section 3, Indemnitee shall be
indemnified against Expenses, judgments, fines and amounts paid in
settlement actually and reasonable 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 reasonable
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.
4. Proceedings by or in the Right
of the Corporation. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 4 if, by
reason of his Corporate Status, he is, or is threatened to be made,
a party to any threatened, pending or completed Proceeding brought
by or in the right of the Corporation to procure a judgment in its
favor. Pursuant to this Section, Indemnitee shall be indemnified
against 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.
Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation if such indemnification is
not permitted by Delaware or other applicable law; provided,
however, that indemnification against Expenses shall nevertheless
be made by the Corporation in such event to the extent that the
Court of Chancery of the State of Delaware, or the court in which
such Proceeding shall have been brought or is pending, shall deem
proper.
5 . Indemnification for
Expenses 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 his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall
be indemnified against all Expenses actually and reasonably
incurred by him or on his 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
Corporation shall indemnify Indemnitee 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 or withdrawal with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
6. Advance of
Expenses. The
Corporation shall advance all reasonable Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding within
twenty days after the receipt by the Corporation of a statement or
statements from Indemnitee requesting such advance or advances from
time to time, 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 advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such Expenses.
7. Procedure for Determination of
Entitlement to Indemnification.
(a) To obtain indemnification under
this Agreement, Indemnitee shall submit to the Corporation a
written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the
Corporation shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon written request by
Indemnitee for indemnification pursuant to Section 7(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made in
the specific case: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee (unless
Indemnitee shall request that such determination be made by the
Board of Directors or the stockholders, in which case the
determination shall be made in the manner provided below in clauses
(ii) or (iii)); (ii) if a Change of Control shall not
have occurred, (A) by a majority vote of the Disinterested
Directors (as hereinafter defined), or by a Board committee which
is appointed by a majority vote of the Disinterested Directors and
which consists solely of Disinterested Directors or (B) if so
directed by a majority vote of Disinterested Directors, by
Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee, or (C) if so
directed by the Board of Directors, by the stockholders of the
Corporation; or (iii) as provided in Section 8(b) of this
Agreement; and, if it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate
with the person, persons or entity making such determination with
respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon
reasonable advance request any documentation or information which
is not privileged or otherwise protected from 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
shall be borne by the Corporation (irrespective
of the determination as to Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.
(c) In the event the determination
of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 7(b) of this Agreement, the
Independent Counsel shall be selected as provided in this
Section 7(c). If a Change of Control shall not have occurred,
the Independent Counsel shall be selected by the Board of
Directors, and the Corporation shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel
so selected. If a Change of Control shall have occurred, the
Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Corporation
advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Corporation, as the case may be,
may, within 7 days after such written notice of selection shall
have been given, deliver to the Corporation or to Indemnitee, as
the case may be, 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 requirement of
“Independent Counsel” as defined in Section 14 of
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not
serve as Independent Counsel unless and until a court had
determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for
indemnification pursuant to Section 7(a) hereof, no
Independent Counsel shall have been selected or if selected, shall
have been objected to, in accordance with this Section 7(c),
either the Corporation or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have been
made by the Corporation or Indemnitee to the other’s
selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with
respect to whom an objection is favorably resolved or the person so
appointed shall act as Independent Counsel under Section 7(b)
hereof. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 7(b)
hereof, and the Corporation shall pay all reasonable fees and
expenses incident to the procedures of this Section 7(c),
regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 9(a)
(iii) 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).
8. Presumptions and Effect of
Certain Proceedings.
(a) If a Change of Control shall
have occurred, in making a determination with respect to
entitlement to indemnification hereunder, the person, pe
