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Exhibit 10.8
INDEMNIFICATION AGREEMENT
This AGREEMENT is dated as of November 26, 1996 by and between Thermo
Instrument Systems Inc., a Delaware corporation ("THI"), and Metrika Systems
Corporation, a Delaware corporation ("Metrika"). As used herein Metrika shall
mean Metrika Systems Corporation and its direct and indirect wholly owned
subsidiaries.
WHEREAS, Metrika was organized as a new wholly owned subsidiary of THI;
WHEREAS, THI has transferred to Metrika all of the shares of capital stock
that it holds of its subsidiary Gamma-Metrics, a California corporation (the
"Transferred Business"); all in exchange for an aggregate of 10,000,000 shares
(the "Metrika Shares") of common stock of Metrika; and
WHEREAS, as partial consideration for the issuance by Metrika of the
Metrika Shares, THI is willing to indemnify and hold harmless Metrika as set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto hereby agree as follows:
1. Indemnification by THI.
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(a) THI agrees to indemnify and hold harmless Metrika from any and all
claims, damages, losses, liabilities, costs and expenses (including, without
limitation, settlement costs and any reasonable legal, accounting or other
expenses for investigating or defending any actions or threatened actions)
incurred by Metrika relating solely to the acts or omissions, or related to
conduct, of the Transferred Businesses, including foreign operations thereof,
that occurred prior to the date hereof.
(b) Whenever any claim shall arise for indemnification hereunder,
Metrika shall promptly notify THI of the claim and, when known, the facts
constituting the basis for such claim. In the event of any such claim for
indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third-party, the notice to THI shall specify, if known,
the amount or an estimate of the amount of the liability arising therefrom.
Metrika shall not settle or compromise any claim by a third party for which
Metrika is entitled to indemnification hereunder without the prior consent of
THI, unless suit shall have been instituted against Metrika and THI shall not
have taken control of such suit after notification thereof as provided in
Paragraph 1(c) of this Agreement.
(c) In connection with any claim giving rise to indemnity hereunder
resulting from or arising out of any claim or legal proceeding by a person who
is not a party to this Agreement, THI at its sole cost and expense may, upon
notice to Metrika, assume the defense of any such claim or legal proceeding if
it acknowledges to Metrika its obligations to indemnify Metrika with respect to
all such elements of such claim. Metrika shall be entitled to participate in
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(but not control) the defense of any such action, with its counsel and at its
own expense. If THI does not assume the defense of any such claim or litigation
resulting therefrom within 30 days after the date THI is notified of such claim
pursuant to Paragraph 1(b) hereof, (i) Metrika may defend against such claim or
litigation, after giving notice of the same to THI, on such terms as are
appropriate in Metrika's reasonable judgment, and (ii) THI shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense.
2. Miscellaneous.
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(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that THI
and Metrika may not assign their respective obligations hereunder without the
prior written consent of the other party. Any assignment in contravention of
this provision shall be void.
(b) This Agreement represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof. This
Agreement may be amended or modified only by a written instrument executed by
THI and Metrika.
(c) Any notice or other communication shall be in writing and shall be
personally delivered, or sent by overnight or second day courier or by first
class mail, return receipt requested, to the party to whom such notice or other
communication is to be given or made at such party's address set forth below, or
to such other address as such party shall designate by written notice to the
other party as follows:
If to Thermo Instrument:
Thermo Instrument Systems Inc.
000 Xxxxxxx Xxxx
Xxxxx Xx, Xxx Xxxxxx 00000-0000
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
If to Metrika:
Metrika Systems Corporation
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
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With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
provided that any notice of change of address, and any notice or other
communication given otherwise than as specified above shall be effective only
upon receipt; and further that any presumption of receipt by the addressee shall
be inoperable during the period of any interruption in Postal Service.
(d) This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware.
(e) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(f) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall be one and
the same document.
(g) This Agreement is the joint work product of the parties hereto,
and, therefore, in the case of an ambiguity no inference shall be drawn to the
detriment of either party.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
THERMO INSTRUMENT SYSTEMS INC. METRIKA SYSTEMS CORPORATION
By: By:
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Title: Title:
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