INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made and entered into as of
the ____ day of ___________, 1997 between Zing Technologies, Inc., a New York
corporation ("Zing") with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and
Transition Analysis Component Technology, Inc., a Delaware corporation
("TACTech") with offices at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
WHEREAS, TACTech is a 90%-owned subsidiary of Zing and maintains a data
base of certain components for military equipment;
WHEREAS, TACTech has filed a registration statement on Form SB-1 under the
Securities and Exchange Act of 1933 on January 30, 1997 (the "33 Act
Registration Statement") and will commence, as soon as practicable following the
Securities and Exchange Commission's declaration of effectiveness, the
distribution (the "Distribution") of 90% of its shares of common stock, par
value $.01, to the stockholders of Zing as of the Record Date with the remaining
10% to be held by ▇▇▇▇▇▇▇ ▇▇▇▇, TACTech's Executive Vice President, and will as
of the date of such Distribution (the "Distribution Date") operate on a stand
alone basis;
WHEREAS, in connection with the Distribution, TACTech has also filed a
registration statement pursuant to the Securities Exchange Act of 1934 (the "34
Act Registration Statement", and together with the 33 Act Registration
Statement, the "Registration Statements"); and
WHEREAS, TACTech has agreed to indemnify Zing for claims, costs, damages or
liabilities incurred by Zing both before and after the Distribution Date, and
Zing has agreed to indemnify TACTech for claims, costs, damages or liabilities
incurred by TACTech both before and after the Distribution Date;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. Indemnification.
(a) TACTech will indemnify and save harmless Zing and its directors,
officers, employees, agents and/or affiliates (each, a "TACTech Indemnified
Party") from any and all costs, expenses, losses, damages and liabilities
("Claim(s)") incurred or suffered, directly or indirectly, (including, without
limitation, reasonable legal fees and expenses) resulting from or attributable
to (i) the operation of TACTech from and after the Distribution or (ii) any
claim, suit or other type of proceeding based upon, arising out of or in
connection with any information concerning TACTech in the Registration
Statements that was furnished by TACTech for inclusion in the Registration
Statements or any part thereof.
(b) Zing, will indemnify and save harmless TACTech and its directors,
officers, employees, agents and/or affiliates (each, a "Zing Indemnified Party"
and, together with each TACTech Indemnified Party, without distinction, an
"Indemnified Party") from any and all Claims incurred or suffered, directly or
indirectly, (including, without limitation, reasonable legal fees and expenses)
resulting from or attributable to the operation of Zing (i) prior to the
Distribution (excluding the operation of TACTech); (ii) after the Distribution
(excluding the operation of TACTech); and (iii) any claim, suit or other type of
proceeding based upon, arising out of or in connection with any information
concerning Zing in the Registration Statements that was furnished by Zing for
inclusion in the Registration Statements or any part thereof.
2. Defense of Claim.
(a) In the event an Indemnified Party receives notice of any claim asserted
or any action or administrative or other proceeding commenced in respect of a
Claim for which indemnity may be properly sought under this Agreement against
TACTech or Zing, as the case may be (the "Indemnifying Party"), the Indemnified
Party shall give notice in writing to the Indemnifying Party within thirty (30)
days of its receipt of such notice. Within thirty (30) days after the earlier of
(a) receipt by the Indemnifying Party of such notice from the Indemnified Party,
or (b) receipt of actual notice by the Indemnifying Party from sources other
than the Indemnified Party, the Indemnifying Party may give the Indemnified
Party written notice of its election to conduct the defense of such claim,
action or proceeding at its own expense. If the Indemnifying Party has given the
Indemnified Party such notice of election to conduct the defense, the
Indemnifying Party may conduct the defense at its expense, but the Indemnified
Party shall nevertheless have the right to participate in the defense, provided
such participation is solely at the expense of the Indemnified Party, without a
right of further reimbursement. If the Indemnifying Party has not so notified
the Indemnified Party in writing within the time period provided above of its
election to conduct the defense of such Claim, the Indemnified Party may, but
need not, conduct, at the Indemnifying Party's expense, the defense of such
claim, action or proceeding. The Indemnified Party may at any time notify the
Indemnifying Party of its intention to settle, compromise or satisfy any such
claim, action or proceeding (the defense of which the Indemnifying Party has not
previously elected to conduct) and, with the prior written consent of the
Indemnified Party (which consent will not be unreasonably withheld), may make
such settlement, compromise or satisfaction, at the Indemnifying Party's
expense, provided, however, that the Indemnifying Party may make such
settlement, compromise or satisfaction without the prior written consent of the
Indemnified Party if such settlement, compromise or satisfaction constitutes a
release of the Indemnified Party in respect of such Claim.
(b) Any settlement, compromise or satisfaction, or any final judgment or
decree entered in, or any Claim defended in accordance with the provisions of
this Paragraph 2 shall be final and binding on the parties hereto.
2
(c) The Indemnified Party and the Indemnifying Party shall use all
reasonable efforts to cooperate fully with respect to the defense of any Claim
in accordance with the provisions of this Paragraph 2.
3. Notice. All notices and other communications required or permitted to be
given under this Indemnification Agreement shall be dated and in writing and
shall be deemed to have been duly given when (a) personally delivered, (b) upon
delivery of a telephonic facsimile transmission with a confirmed telephonic
transmission answered back, (c) three days after being deposited in the United
States mail, registered or certified, return receipt requested, postage prepaid,
or (d) one day after having been dispatched by a nationally recognized overnight
courier service, addressed to the party or parties to this Agreement to whom it
is directed:
If to Zing:
Zing Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to TACTech:
Transition Analysis Component Technology, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other address or addresses as may be designated by a party hereto by
notice delivered to the other parties.
4. Cooperation. In connection with any Claim that is the subject of
indemnification, each party shall afford to the Indemnifying Party and its
accountants, counsel and other designated representatives reasonable access
during normal business hours to all records, books, contracts,
3
instruments, computer data and other information insofar as such access is
reasonably required by the Indemnifying Party in connection with the defense of
any Claim pursuant to Paragraph 2 hereof In addition, each party shall use
reasonable efforts to make available to the Indemnifying Party, upon written
request, its officers, directors, employees and agents as witnesses to the
extent that any such person may reasonably be required in connection with the
defense or prosecution of any Claim.
5. Waiver. The waiver by any party hereto of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any preceding or
succeeding breach and no failure by any party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges or shall
be deemed a waiver of such party's rights hereunder to exercise the same at any
subsequent time or times.
6. Amendment. This Agreement may be amended, modified or supplemented only
by written instrument executed by the party against whom enforcement is sought.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
8. Severability. The invalidity, illegality or unenforceability of one or
more of the provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality and enforceability of this
Agreement, including any such provision, in any other jurisdiction, it being
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and the Indemnified Parties and each
of their respective successors and assigns.
11. Acknowledgment of Securities Laws Policy Against Indemnification
Agreements. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the TACTech or Zing pursuant to the
foregoing provisions, or otherwise, the parties acknowledge the opinion of the
Securities and Exchange Commission that such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by either of TACTech or Zing, as the case
may be, of expenses incurred or paid by a director, officer or controlling
person of TACTech or Zing, as the case may be, in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, TACTech or Zing will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit
4
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
5
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year first above written.
ZING TECHNOLOGIES, INC.
By:
-----------------------
Name:
Title:
TRANSITION ANALYSIS
COMPONENT TECHNOLOGY, INC.
By:
-----------------------
Name:
Title:
6