Exhibit 10.12
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is entered into and
effective as of June __, 2004 between Synetics Solutions Inc., an Oregon
corporation (the "Company"), and HUNTAIR Inc., an Oregon corporation (the
"Selling Shareholder").
The Company intends to prepare and file with the Securities and Exchange
Commission a Registration Statement on Form S-1 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "1933 Act"), relating to
4,700,000 shares of common stock of the Company to be offered by the Company and
1,300,000 shares of common stock of the Company to be offered by shareholders
other than the Selling Shareholder. If the underwriters exercise their
over-allotment option in full, the Registration Statement will also cover an
additional 817,867 shares of common stock of the Company to be offered by the
Company and 82,133 shares of common stock of the Company to be offered by the
Selling Shareholder.
Now, therefore, in consideration of the mutual covenants and conditions
contained herein, the Company and the Selling Shareholder agree as follows:
1. The Company shall indemnify and hold harmless the Selling Shareholder,
the officers, directors and shareholders of the Selling Shareholder, and each
person, if any, who controls the Selling Shareholder within the meaning of the
1933 Act, against any losses, claims, damages or liabilities, joint or several,
to which they may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the prospectus, or any amendment or supplement thereto, or any new
registration statement or prospectus, or in any marketing materials or
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the shares of common stock of
the Company, including any roadshow or investor presentations made to investors
by the Company (whether in person or electronically), or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (collectively, a "Violation"); and the Company will pay to each
person intended to be indemnified pursuant to this section 1, as incurred, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the agreement contained in this section 1 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by the Selling Shareholder or any such
officer, director or controlling person.
2. The Selling Shareholder shall indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the 1933 Act, against any losses, claims,
damages, or liabilities to which any of the foregoing persons may become subject
under the 1933 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by the Selling Shareholder or its agents expressly
for use in connection with such registration; and the Selling Shareholder will
pay, as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this section 2, in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the agreement contained in this section 2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Selling
Shareholder (which consent shall not be unreasonably withheld); and, provided
further, that in no event shall any indemnity under this section 2 exceed the
net proceeds from the offering received by the Selling Shareholder.
3. Promptly after receipt by an indemnified party under this Agreement of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Agreement, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified parties
that may be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Agreement, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Agreement.
4. To the extent the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other hand, in connection with the Violation(s) that
resulted in such loss, claim, damage or liability, as well as any other relevant
equitable considerations; provided, however, that in no event shall any
contribution made by the Selling Shareholder under this section 4 exceed the net
proceeds from the offering received by the Selling Shareholder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission to state
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a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
5. (A) This Agreement constitutes the entire agreement between the
Company and the Selling Shareholder and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect to
indemnification of the Selling Shareholder by the Company in connection with the
offering contemplated by the Registration Statement.
(B) This Agreement shall not be assignable by any of the parties
hereto without the prior written consent of each of the Company and the Selling
Shareholder.
(C) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns, subject to the
restrictions on assignment contained in section 5(b). Nothing express or implied
in this Agreement is intended or shall be construed to confer upon or give to a
person, firm or corporation other than the parties hereto any rights or remedies
under or by reason of this Agreement or any transaction contemplated hereby.
(D) Subject to applicable law, this Agreement may be amended,
modified and supplemented at any time by written agreement executed and
delivered by the duly authorized officers of each of the Company and the Selling
Shareholder.
(E) Any failure of the Company, on the one hand, or the Selling
Shareholder, on the other hand, to comply with any obligation, covenant,
agreement or condition herein may be waived by the Selling Shareholder, on the
one hand, or the Company, on the other hand, only by a written instrument signed
by the party or parties granting such waiver, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
(F) For the convenience of the parties hereto, this Agreement may be
executed in any number of counterparts, each such counterpart being deemed to be
an original instrument, and all such counterparts shall together constitute the
same agreement.
(G) This Agreement shall be governed by and construed in accordance
with the laws of the state of Oregon, exclusive of choice of law rules.
(H) Any term or provision of this Agreement which is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without rendering invalid,
illegal or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity, legality or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(I) If a dispute arises out of, or relates to, this Agreement, or
the breach thereof, and if the dispute cannot be settled through negotiation,
the parties agree first to attempt in good faith to settle the dispute by
mediation administered by the American Arbitration
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Association under its Commercial Mediation Rules before resorting to litigation
or any other type of dispute resolution procedure.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SYNETICS SOLUTIONS INC.
By:
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Name:
Title:
HUNTAIR, INC.
By:
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Name:
Title:
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