LEASE ASSUMPTION AND INDEMNIFICATION AGREEMENT
Exhibit
10.5
This
Lease Assumption and Indemnification Agreement (this “Agreement”) is made this
11th
day of
June, 2007, by and between Xxxxxx Xxxxxx (the “Executive”), a resident of the
State of Rhode Island, and Xxxxxxxx Technologies, Inc., and its subsidiaries
and
affiliates (collectively, the “Company”). The signatories to this Agreement will
be referred to jointly as the “Parties.”
Preamble
WHEREAS,
the
Executive served the Company as its Chief Executive Officer and Director;
and
WHEREAS,
in
conjunction with certain agreements made between the Company and certain
Investors, including Aberdeen LLC et al., including, among others, the agreement
titled “Litigation Settlement, Securities Purchase, Relinquishment and Exchange
Agreement”, the Executive has agreed to assume the Company’s lease agreement for
the Company’s office located at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, XX and to
indemnify the Company against any and all liabilities arising from the
aforementioned lease agreement; and
WHEREAS,
in
consideration for such lease assumption and indemnification, the Executive
will
receive $50,000 from the Company.
NOW,
THEREFORE, in
reliance on the representations contained herein and in consideration of the
mutual promises, covenants and obligations contained herein, and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1.0 Lease
Assumption
The
Company presently has a five year lease for office and warehouse space at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxx XX (the “Lease”). Of that five year period
approximately four years remain on the Lease. The Company agrees that this
lease
obligation represents a potential liability in excess of $670,000. The Executive
agrees to assume the Lease obligation in consideration of receipt of $50,000
from the Company. The Executive hereby agrees to pay, perform and discharge
all
obligations of Company under the Lease as and when the same shall become due,
whether or not the landlord under the Lease has consented to the Assignment
thereof to the Executive or his designee. The Company agrees that if the
Executive hereafter secures the consent of the landlord under the Lease to
an
assignment or sublease thereof to the Executive or his designee the Company
will
so assign or sublease the Lease to the Executive or his designee, as applicable,
and will enter into whatever documents, instruments or agreements may be
required in connection therewith so long as such documents, instruments and
agreements do not alter in any respect the relative rights and obligations
created under this Agreement.
2.0 Indemnification
2.1
In the
event that the Company is made, or threatened to be made, a party to any action
or proceeding alleging that the Company is in violation of any provision of
the
Lease, whether monetary or non-monetary, including, without limitation, an
allegation of non-payment or any other commitment of the Company under the
Lease
(a “Proceeding”)
the
Company shall be indemnified by the Executive for all costs, claims, losses,
damages and expenses incurred by the Company in connection therewith and the
Executive shall advance the Company’s related expenses to the fullest extent
permitted by law. The provisions of this Section are intended to be for the
benefit of, and shall be enforceable by the Company. If the Company or any
of
its successors or assigns (i) shall consolidate with or merge into any other
corporation or entity and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to such person, then and in
each
such case, proper provisions shall be made so that the successors and assigns
of
the Company shall assume all of the benefits set forth in this Section
2.1.
2.2 If
any Proceeding shall be brought or asserted against the Company, the Company
shall promptly notify the Executive in writing, and the Executive shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to the Company and the payment of all fees and expenses incurred in connection
with defense thereof; provided, that the failure of the Company to give such
notice shall not relieve the Executive of its obligations or liabilities
pursuant to this Section 2, except (and only) to the extent that such failure
shall have prejudiced the Executive.
The
Company shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Company unless: (1) the Executive has
agreed in writing to pay such fees and expenses; (2) the Company has reasonably
concluded that there may be a conflict of interest between the Executive and
the
Company in the conduct of any such defense; or (3) the Executive shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to the Company in any such Proceeding. The Executive
shall not be liable for any settlement of any such Proceeding effected without
its written consent, which consent shall not be unreasonably withheld.
Subject to the terms of this Section 2, all fees and expenses of the Company
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Company, as incurred,
within thirty days of written notice thereof to the Executive.
3.0 Miscellaneous
3.1 This
Agreement is binding not only on the Parties themselves, but also on their
successors, assigns, heirs, agents and personal representatives. The rights
under this Agreement may not be assigned by either Party without the consent
of
the other Party.
3.2 This
Agreement, along with any exhibits, constitutes the complete agreement between,
and contains all of the promises and undertakings of, the Parties. It may not
be
revised or modified without the mutual written consent of the
Parties.
3.3 The
Executive acknowledges and agrees that he has had sufficient time to consider
this Agreement and to seek legal advice concerning its meaning.
3.4 This
Agreement shall in all respects be interpreted, enforced, and governed under
the
laws of the State of Rhode Island, without regard to its conflict of law
provisions.
THEREFORE,
having
fully read and understood the terms of this Agreement, the Parties sign their
names below with the intention that they shall be bound by it.
|
Xxxxxxxx
Technologies, Inc.
|
|||
| /s/ Xxxxxx Xxxxxx | /s/ Xxxx Xxxxxxx | ||
|
Xxxxxx Xxxxxx |
Xxxx Xxxxxxx |
||
| CFO, Director | |||
| Date: June 9th, 2007 | Date: June 9th, 2007 |
