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INDEMNIFICATION
AGREEMENT
This
Agreement made and entered into this 1st day of April, 2008,
(the “Agreement”), by and between Osiris
Corporation, a Delaware corporation (the
“Company,” which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company) and Ilan Danieli (the
“Indemnitee”):
WHEREAS,
it is essential to the Company that it be able to retain and
attract as directors and officers the most capable persons
available;
WHEREAS,
increased corporate litigation has subjected directors and
officers to litigation risks and expenses, and the limitations
on the availability of directors and officers liability
insurance have made it increasingly difficult for the Company
to attract and retain such persons;
WHEREAS,
the Company’s By-laws
require
it to indemnify its
directors
and officers to the fullest extent permitted by law and permit it
to make other indemnification arrangements and
agreements;
WHEREAS,
the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee’s rights to full
indemnification against litigation risks and expenses
(regardless, among other things, of any amendment to or
revocation of the Company’s By-laws
Certificate
of Incorporation
or
any change in the ownership of the Company or the composition of
its Board of Directors);
WHEREAS,
the Company intends that this Agreement provide Indemnitee
with greater protection than that which is provided by the
Company’s By-laws; and
WHEREAS,
Indemnitee is relying upon the rights afforded under this
Agreement in becoming
a
director and officer of the Company.
NOW,
THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
1.
Definitions
.
(a)
“Corporate
Status” describes the status of a person who is serving
or has served (i) as a director or officer of the
Company,
(ii) in
any capacity with respect to any employee benefit plan of the
Company, or (iii) as a director, partner, trustee, officer,
employee, or agent of any other Entity at the request of the
Company. For purposes of subsection (iii) of this Section 1(a), if
Indemnitee
is
serving or has served as a director, partner, trustee, officer,
employee or agent of a Subsidiary, Indemnitee shall be deemed to be
serving at the request of the Company.
(b)
“Entity”
shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation, association,
organization or other legal entity.
(c)
“Expenses”
shall mean all fees, costs and expenses incurred by Indemnitee
in connection with any Proceeding (as defined below),
including, without limitation, attorneys’ fees,
disbursements and retainers (including, without limitation,
any such fees, disbursements and retainers incurred by
Indemnitee pursuant to Sections 11 and 12(c) of this
Agreement), fees and disbursements of expert witnesses,
private investigators and professional advisors (including,
without limitation, accountants and investment bankers), court
costs, transcript costs, fees of experts, travel expenses,
duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d)
“Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 3(a)
below.
(e)
“Liabilities”
shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in
settlement.
(f)
“Proceeding”
shall mean any threatened, pending or completed claim, action,
suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to
Section 11 of this Agreement to enforce
Indemnitee’s rights hereunder.
(g)
“Subsidiary”
shall mean any corporation, partnership, limited liability
company, joint venture, trust or other Entity of which the
Company owns (either directly or through or together with
another Subsidiary of the Company) either (i) a general
partner, managing member or other similar interest or (ii) (A)
50% or more of the voting power of the voting capital equity
interests of such corporation, partnership, limited liability
company, joint venture or other Entity, or (B) 50% or more of
the outstanding voting capital stock or other voting equity
interests of such corporation, partnership, limited liability
company, joint venture or other Entity.
2.
Services of Indemnitee .
In consideration of the Company’s covenants and commitments
hereunder, Indemnitee agrees to serve as a director and officer of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3.
Agreement to Indemnify .
The Company agrees to indemnify Indemnitee as follows:
(a)
Proceedings Other Than By or In the Right of the Company .
Subject to the exceptions contained in Section 4(a) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the
Company) by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all Expenses
and Liabilities incurred or paid by Indemnitee in connection with
such Proceeding (referred to herein as “Indemnifiable
Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable
Amounts”).
(b)
Proceedings By or In the Right of the Company . Subject to the
exceptions contained in Section 4(b) below, if Indemnitee was or is
a party or is threatened to be made a party to any Proceeding by or
in the right of the Company by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company
against all Indemnifiable Expenses.
(c)
Conclusive Presumption Regarding Standard of Care
.
In making any determination required to be made under Delaware law
with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee submitted a request therefor in accordance with
Section 5 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.
(d)
Additional Indemnity .
In addition to, and without regard to any limitations on, the
indemnification provided for in
Section 3(a) and 3(b) of
this Agreement, the Company shall and hereby does indemnify and
hold harmless Indemnitee against all Expenses and Liabilities
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 a Proceeding by or in the
right of the Company), including, without limitation, all liability
arising out of the negligence or active or passive wrongdoing of
Indemnitee. The only limitation that shall exist upon the
Company’s obligations pursuant to this Agreement shall be
that the Company shall not be obligated to make any payment to
Indemnitee that is finally determined to be unlawful by the Court
of Chancery of the State of Delaware.
4.
Exceptions to Indemnification .
Indemnitee shall be entitled to indemnification under
Sections 3(a) and 3(b) above in all circumstances other than
with respect to any specific claim, issue or matter involved in the
Proceeding out of which Indemnitee’s claim for
indemnification has arisen, as follows:
(a)
Proceedings Other Than By or In the Right of the Company . If
indemnification is requested under Section 3(a) and it has
been finally adjudicated by the Court of Chancery of the State of
Delaware that, in connection with such specific claim, issue or
matter, Indemnitee failed to act (i) in good faith and (ii) in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts
hereunder.
(b)
Proceedings By or In the Right of the Company . If
indemnification is requested under Section 3(b) and
(i)
it has been finally adjudicated by the Court of Chancery of
the State of Delaware that, in connection with such specific
claim, issue or matter, Indemnitee failed to act (A) in good
faith and (B) in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder; or
(ii)
it has been finally adjudicated by the Court of Chancery of
the State of Delaware that Indemnitee is liable to the Company
with respect to such specific claim, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder with
respect to such claim, issue or matter unless the Court of
Chancery of the State of Delaware or another court in which
such Proceeding was brought shall determine upon application
that, despite the adjudication of liability, but in view of
all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnification for such Indemnifiable
Expenses which such court shall deem proper; or
(iii)
it has been finally adjudicated by the Court of Chancery of
the State of Delaware that Indemnitee is liable to the Company
for an accounting of profits made from the purchase or sale by
the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of
1934, the rules and regulations promulgated thereunder and
amendments thereto or similar provisions of any federal, state
or local statutory law, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder.
(c)
Insurance Proceeds . To the extent payment is actually made to
the Indemnitee under a valid and collectible insurance policy in
respect of Indemnifiable Amounts in connection with such specific
claim, issue or matter, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder except in respect of any excess
beyond the amount of payment under such insurance.
5.
Procedure for Payment of Indemnifiable Amounts
.
Indemnitee shall submit to the Company a written request specifying
the Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim. The
Company shall pay such Indemnifiable Amounts to Indemnitee promptly
upon re
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