SENESCO TECHNOLOGIES,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement ("Agreement") is
made as of June 8, 2010 by and between Senesco Technologies, Inc.,
a Delaware corporation (the "Company"), and Warren J. Isabelle
("Indemnitee").
WHEREAS , Indemnitee is a director of the Company and
performs valuable services in such capacities for the
Company;
WHEREAS , the Company and Indemnitee recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage
of liability insurance may be limited;
WHEREAS , the Company and Indemnitee further recognize
the difficulty in obtaining liability insurance for its directors,
officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions
in the coverage of such insurance;
WHEREAS , Indemnitee does not regard the current
protection available as adequate under the present circumstances,
and the Indemnitee and other directors, officers, employees, agents
and fiduciaries of the Company may not be willing to continue to
serve in such capacities without additional protection;
and
WHEREAS , the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to
serve the Company and, in part, in order to induce Indemnitee to
continue to provide services to the Company as a director, the
Company wishes to provide for the indemnification and advancing of
expenses to Indemnitee to the maximum extent permitted by
law.
NOW, THEREFORE , the Company and Indemnitee hereby agree as
follows:
(a)
Indemnification of Expenses . The Company shall
indemnify Indemnitee to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other (hereinafter a "Claim") by reason of (or arising in part
out of) any event or occurrence related to the fact that Indemnitee
is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at
the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction
on the part of Indemnitee while serving in such capacity
(hereinafter an "Indemnifiable Event") against any and all expenses
(including attorneys’ fees and all other costs, expenses and
obligations incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, any such
action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld) of such Claim and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (collectively,
hereinafter "Expenses"), including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses. Such payment of Expenses shall be made by
the Company as soon as practicable but in any event no later than
thirty (30) days after written demand by Indemnitee therefor is
presented to the Company.
(b)
Reviewing Party . Notwithstanding the foregoing,
(i) the obligations of the Company under Section l(a) shall be
subject to the condition that the Reviewing Party (as described in
Section 10(e) hereof) shall not have determined (in a written
opinion, in any case in which the Independent Legal Counsel
referred to in Section 1(c) hereof is involved) that Indemnitee
would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an advance payment of
Expenses to Indemnitee pursuant to Section 2(a) (an "Expense
Advance") shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee
would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made
by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). Indemnitee’s obligation to
reimburse the Company for any Expense Advance shall be unsecured
and no interest shall be charged thereon. If there has
not been a Change in Control (as defined in Section 10(c) hereof),
the Reviewing Party shall be selected by the Board of Directors,
and if there has been such a Change in Control (other than a Change
in Control which has been approved by a majority of the
Company’s Board of Directors who were directors immediately
prior to such Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section l(c)
hereof. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified
in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by
the court or challenging any such determination by the Reviewing
Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and
to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(c)
Change in Control . The Company agrees that if
there is a Change in Control of the Company (other than a Change in
Control which has been approved by a majority of the
Company’s Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters
thereafter arising concerning the rights of Indemnitee to payments
of Expenses and Expense Advances under this Agreement or any other
agreement or under the Company’s Certificate of Incorporation
or By-laws as now or hereafter in effect, the Company shall seek
legal advice only from Independent Legal Counsel (as defined in
Section 10(d) hereof) selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall
render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to
pay the reasonable fees of the Independent Legal Counsel referred
to above and to fully indemnify such counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and
damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(d)
Mandatory Payment of Expenses . Notwithstanding
any other provision of this Agreement other than Section 9 hereof,
to the extent that Indemnitee has been successful on the merits or
otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit,
proceeding, inquiry or investigation referred to in Section (1)(a)
hereof or in the defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.
2.
Expenses; Indemnification Procedure .
(a)
Advancement of Expenses . The Company shall
advance all Expenses incurred by Indemnitee. The
advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than
five (5) days after written demand by Indemnitee therefor to the
Company.
(b)
Notice/Cooperation by Indemnitee . Indemnitee
shall, as a condition precedent to Indemnitee’s right to be
indemnified under this Agreement, give the Company notice in
writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to
the Chief Executive Officer of the Company at the address shown on
the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). In
addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
(c)
No Presumptions; Burden of Proof . For purposes
of this Agreement, the termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo
contendere , or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable
law. In addition, neither the failure of the Reviewing
Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief,
nor an actual determination by the Reviewing Party that Indemnitee
has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to
secure a judicial determination that Indemnitee should be
indemnified under applicable law, shall be a defense to
Indemnitee’s claim or create a presumption that Indemnitee
has not met any particular standard of conduct or did not have any
particular belief. In connection with any determination
by the Reviewing Party or otherwise as to whether the Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be
on the Company to establish that Indemnitee is not so
entitled.
(d)
Notice to Insurers . If, at the time of the
receipt by the Company of a notice of a Claim pursuant to Section
2(b) hereof, the Company has liability insurance in effect which
may cover such Claim, the Company shall give prompt notice of the
commencement of such Claim to the insurers in accordance with the
procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance with the terms of such
policies. Nothing in this Section 2(d) shall limit the
Company’s obligations as otherwise provided for herein,
including the Company’s obligation to pay Expenses under
Section 1(b) or to advance Expenses under Section 2(a).
(e)
Selection of Counsel . In the event the Company
shall be obligated hereunder to pay the Expenses of any action,
suit, proceeding, inquiry or investigation, the Company, if
appropriate, shall be entitled to assume the defense of such
action, suit, proceeding, inquiry or investigation with counsel
approved by Indemnitee, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for
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