Exhibit 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into this 17th day of August, 2005, between Robocom Systems International,
Inc., a New York corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇",
▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇, are referred to herein, collectively, as the
"Indemnitees", and each individually, as an "Indemnitee").
WHEREAS, Indemnitees are principal shareholders of the Company;
WHEREAS, each Indemnitee executed, with respect to Section 7.01 and
Article X only, that certain Asset Purchase Agreement by and between the
Company and Avantce RSI, LLC, a Delaware limited liability company
("Avantce"), dated as of August 17, 2005 (the "Purchase Agreement"),
pursuant to which the Indemnitees have agreed, subject to the terms and
conditions of Article X of the Purchase Agreement, to jointly and
severally, indemnify, defend and hold Avantce and its officers, directors,
affiliates and employees (collectively the "Avantce Indemnitees" and
individually, an "Avantce Indemnitee") harmless against any and all
damages, losses, liabilities or costs arising from (a) any material
misrepresentation by the Company contained in or made pursuant to the
Purchase Agreement or in any certificate, instrument or agreement
delivered to Avantce pursuant to or in connection with the Purchase
Agreement; or (b) any material breach of warranty or any default in the
performance of any covenant or obligation of the Company under or in
connection with the Purchase Agreement;
WHEREAS, in view of the considerations set forth above, the Company
desires to indemnify, defend and hold harmless each and all of the
Indemnitees from and against all damages, losses, liabilities and costs
that any Indemnitee may incur as a result of an indemnification claim by
an Avantce Indemnitee pursuant to Article X under the Purchase Agreement
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereto agree as
follows:
1. Indemnity of the Indemnitees. The Company hereby agrees to indemnify,
defend and hold harmless each of the Indemnitees to the fullest extent
permitted under Article X of the Purchase Agreement from and against all
damages, losses, liabilities and costs that any Indemnitee may incur as a
result of an indemnification claim by an Avantce Indemnitee pursuant to
Article X under the Purchase Agreement (the "Damages").
2. Period of Indemnity. The indemnification obligations of the Company
contained herein shall continue for so long as any Indemnitee may be or
become subject to any indemnification claim by an Avantce Indemnitee (or
any threatened or filed action, suit or proceeding with respect thereto)
pursuant to Article X of the Purchase Agreement.
3. Indemnification Procedure.
(a) An Indemnitee shall give the Company notice in writing in
accordance with Section 8 of this Agreement as soon as practicable of any
Damages for which such Indemnitee seeks indemnification under this
Agreement.
(b) The payment for Damages to be made hereunder shall be paid
by the Company to any Indemnitee, as applicable, as soon as practicable
but in any event no later than ten (10) business days after written demand
by such Indemnitee therefor to the Company.
4. Agreement to Advance Expenses; Conditions. The Company shall pay to the
Indemnitees all fees, costs and expenses (the "Expenses") incurred in
connection with any pending, threatened or completed claim, action, suit,
arbitration or any other proceeding initiated by an Avantce Indemnitee (a
"Proceeding"), including a Proceeding by or in the right of the Company,
in advance (unless prohibited by applicable laws) of the final disposition
of such Proceeding. The Indemnitees hereby undertake to repay the amount
of Expenses paid to the Indemnitees if it is finally determined by a court
of competent jurisdiction that the Indemnitees are not entitled under this
Agreement to, or are prohibited by applicable law from, indemnification
with respect to such Expenses. This undertaking is an unlimited general
obligation of the Indemnitees.
5. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
6. Binding Effect; Successors and Assigns.This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns, including spouses, heirs, and
personal and legal representatives.
7. Consent to Jurisdiction; Attorneys' Fees; Waiver of Jury Trial. Each of
the parties hereto hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court of the Southern District
of New York and hereby waives, and agrees not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement of
this Agreement, that he or it is not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement may not be enforced in or by said courts,
that the action, suit or proceeding is brought in an inconvenient forum,
or that the venue of the action, suit or proceeding is improper.
Notwithstanding the foregoing, the parties agree that any litigation
hereunder shall be instituted in federal court if such court has
jurisdiction in such matter and a party may bring a cross-complaint or
other inter-pleading against another party to this Agreement arising from
and in connection with a complaint filed by an unrelated third party in a
jurisdiction other than New York County. In addition to such other means
as are permitted by law, each of the parties hereto agrees that service of
process on it may be effected in the same manner as the giving of notice
provided for in Section 8 hereof. In the event that any party commences
any action or proceeding to enforce or interpret the terms of this
Agreement or because of an alleged or actual dispute, breach, default or
misrepresentation in connection with this Agreement, the prevailing party
in any such action or proceeding shall be entitled to recover from the
other party all costs and expenses of such action or proceeding,
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including, but not limited to, reasonable attorneys' fees, accounting fees
and any other reasonably professional fees and costs resulting therefrom,
which fees and costs shall be in addition to any other relief awarded by
the court and regardless of whether any such action or proceeding is
prosecuted to final judgment. EACH OF THE PARTIES HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
8. Notice. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in
any event be deemed to be given (a) five calendar days after deposit with
the U.S. Postal Service or other applicable postal service, if delivered
by first class mail, postage prepaid, (b) upon delivery, if delivered by
hand, (c) one business day after the business day of deposit with Federal
Express or similar overnight courier, freight prepaid, or (d) one day
after the business day of delivery by facsimile transmission, if
deliverable by facsimile transmission, with copy by first class mail,
postage prepaid, and shall be addressed if to an Indemnitee, at such
Indemnitee's address as set forth beneath such Indemnitee's signature to
this Agreement and if to the Company at the address of its principal
corporate offices (attention: Chief Executive Officer) or at such other
address as such party may designate by ten (10) calendar days' advance
written notice to the other party hereto.
9. Severability. The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitations, each portion
of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
10. Choice of Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
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11. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee who shall execute all documents reasonably
required and shall do all acts that may be reasonably necessary to secure
such rights and to enable the Company effectively to bring suit to enforce
such rights.
12. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing
signed by all parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
13. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
COMPANY:
ROBOCOM SYSTEMS INTERNATIONAL, INC.,
a New York corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
INDEMNITEES:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇.▇. ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇