INDEMNIFICATION PRIORITY
AGREEMENT
THIS
INDEMNIFICATION PRIORITY AGREEMENT (the “ Agreement
”) is made and entered into as of December 15 2008
between Minrad International, Inc., a Delaware corporation
(including its predecessors, successors and assigns, the “
Company ”), and
(“ Indemnitee ”).
WHEREAS,
Indemnitee serves as a member of the Board of Directors of the
Company (the “Board”);
WHEREAS, pursuant
to the bylaws of the Company, as amended (the “ Bylaws
”) and the certificate of incorporation of the Company, as
amended (the “ Certificate of Incorporation ”)
the Indemnitee is entitled to indemnification from the Company in
accordance with their terms;
WHEREAS,
Indemnitee has certain rights to indemnification and/or insurance
provided by
(together with its related persons, “
”) which Indemnitee and
intend to be secondary to the primary obligation of the Company to
indemnify Indemnitee as provided herein and in the Certificate of
Incorporation and Bylaws, with the Company’s acknowledgement
and agreement to the foregoing being a material condition to
Indemnitee’s willingness to serve on the Board.
NOW, THEREFORE, in
consideration of Indemnitee’s agreement to serve as a
director after the date hereof, the parties hereto agree as
follows:
Section 1.
Indemnification Priorities . The Company hereby acknowledges
that Indemnitee has certain rights to indemnification, advancement
of expenses and/or insurance provided by
and certain of its affiliates (collectively, the “ Fund
Indemnitors ”). The Company hereby agrees (i) that
it is the indemnitor of first resort ( i.e ., its
obligations to Indemnitee are primary and any obligation of the
Fund Indemnitors to advance expenses or to provide indemnification
for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall be required to advance the full
amount of expenses incurred by Indemnitee and shall be liable for
the full amount of all expenses, judgments, penalties, fines and
amounts paid in settlement to the extent provided by the terms of
the Certificate of Incorporation or Bylaws (or any other agreement
between the Company and Indemnitee), without regard to any rights
Indemnitee may have against the Fund Indemnitors, and,
(iii) that it irrevocably waives, relinquishes and releases
the Fund Indemnitors from any and all claims against the Fund
Indemnitors for contribution, subrogation or any other recovery of
any kind in respect thereof. The Company further agrees that no
advancement or payment by the Fund Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has
sought indemnification from the Company shall affect the foregoing
and the Fund Indemnitors shall have a right of contribution and/or
be subrogated to the extent of such advancement or payment to all
of the rights of recovery of Indemnitee against the Company. The
Company and Indemnitee agree that the Fund Indemnitors are express
third party beneficiaries of the
