INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT is entered into as of February 9, 2000,
by and between Miracor Diagnostics, Inc. hereinafter "Acquiror"); and Xxxx
Xxxxxxxx, MedSource Holdings, Ltd. and Xxxx XxXxxxxxx, (hereinafter collectively
referred to as ("Seller").
RECITALS
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WHEREAS, the parties hereto, among others, have entered into an
agreement for the acquisition of Ultra Open MRI Holding Corp. by Miracor
Diagnostics, Inc. (the "Agreement"); and
WHEREAS, Ultra Open MRI Holding Corp. and its subsidiaries have certain
liabilities under which Seller is personally liable; and
WHEREAS, Miracor is willing to indemnify Seller with respect to the
liabilities listed in Exhibit A hereto; and
The parties wish to reduce their understandings regarding the
indemnification to writing in this document and to be bound by the terms and
conditions thereof.
NOW, THEREFORE, for the mutual consideration set out herein, the
parties agree as follows:
AGREEMENT
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1. Miracor agrees to indemnify, defend, and hold the Seller
harmless from and against the amount of any actual (or
potential in the case of any litigation or claims by any
person not a party to this Agreement) damage, loss, cost, or
expense (including reasonable attorneys' fees and settlement
costs) occasioned or caused by, resulting from, or arising
solely and specifically out of any liabilities listed in
Exhibit A hereto.
2. Seller shall give prompt written notice to Miracor of any
claim (actual or threatened) or other event that in the
judgment of such party might result or has resulted in a loss
by such party hereunder, and Miracor shall have the right to
assume the defense of such claim or any litigation resulting
therefrom; PROVIDED THAT counsel for Miracor, who shall
conduct the defense of such claim (actual, threatened, or
asserted) or litigation, shall be reasonably satisfactory to
Seller, and Seller may participate in such defense at their
expense, and PROVIDED, FURTHER, that the omission by Seller to
give notice as provided herein shall not relieve Miracor of
its obligations hereunder except to the extent that the
omission results in a failure of actual notice to Miracor, and
Miracor is damaged solely as a result of the failure to give
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notice. Miracor, in the defense of any such claim or
litigation, shall not, except with the consent of Seller,
consent to the entry of any judgment or decree or enter into
any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to Seller, or
Miracor, as the case may be, of a release from all liability
in respect to such claim or litigation, and Miracor shall not
have liability with respect to any payment made by Seller in
connection with the settlement, satisfaction, or compromise of
any claim hereunder unless Miracor shall have approved thereof
in advance in writing, which approval shall not unreasonably
be withheld or delayed. If Seller shall not have received
notice that Miracor shall assume the defense of such claim
within twenty (20) days after the notice is sent to Miracor of
the existence of such claim, Seller shall be free to proceed
with the defense of such claim. Each such notice shall be
accompanied (or followed as promptly as is reasonably
practicable after the amount of such loss becomes
determinable) by a certificate signed by Seller and setting
forth in reasonable detail the calculation of the amount of
such Loss in accordance with the provisions hereof, and
accompanied by copies of all relevant documents and records.
The omission to give such notice or provide such certificate
by Seller shall not relieve Miracor of its obligation under
this Agreement except to the extent such omission results in a
failure of actual notice to Miracor, and Miracor is damaged
solely by such failure to give notice. No loss shall be
considered to have occurred with respect to any payment made
by Seller in settlement, satisfaction, or compromise of any
claim unless Miracor shall have approved thereof in advance
and in writing.
3. At any time, and from time to time, after the effective date,
each party will execute such additional instruments and take
such action as may be reasonably requested by the other party
to confirm or otherwise to carry out the intent and purposes
of this Agreement.
4. Any failure on the part of any party hereto to comply with any
of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is
owed.
5. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in
person or sent by prepaid first class registered or certified
mail, return receipt requested, to the last known address of
each party hereto.
6. This Agreement may be executed simultaneously in two or more
counter parts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
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7. GOVERNING LAW. This Agreement was negotiated and is being
contracted for in the State of Utah and shall be governed by
the laws thereof.
8. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding
upon the parties hereto and inure to the benefit of the
parties, their respective heirs, administrators, executors,
successors and assigns. This Agreement may be assigned by
either party; provided, however, that the appropriate permis
sion has been given by those governmental entities whose
permission may be necessary to effect the performance of this
Agreement.
9. SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
SELLER:
///SIGNED/// ///SIGNED///
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XXXX XxXXXXXXX XXXX XXXXXXXX
ACQUIROR:
MedSource Holdings, Ltd. MIRACOR DIAGNOSTICS, INC.
By ///SIGNED/// By ///SIGNED///
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General Partner Authorized Officer
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