Exhibit (d)(1)(J)
INDEMNIFICATION AGREEMENT
AGREEMENT made as of this _____day of ___, 2000, between The Xxxxxx
Biomechanics Group, Inc., a New York corporation (the "Company"), Kanders &
Company, Inc., a __________ corporation ("Kanders & Co."), and Xxxxxx X.
Xxxxxxx, an individual ("Kanders" and, together with Kanders & Co. the
"Indemnitee").
WHEREAS, it is essential to the Company and its stockholders to
attract and retain qualified and capable consultants;
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to induce Indemnitee to serve the Company in an
effective manner, and to supplement or replace the Company's directors' and
officers' liability insurance coverage, and, in part, to provide Indemnitee with
specific contractual assurance that indemnification protection will be available
to Indemnitee, the Company wishes to provide the Indemnitee with the benefits
contemplated by this Agreement; and
WHEREAS, as a result of the provision of such benefits Indemnitee
has agreed to continue to serve the Company as a consultant;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. The following terms, as used herein, shall have the
following respective meanings:
a. Affiliate: of a specified Person is a Person who directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified. The term Associate used to
indicate a relationship with any Person shall mean (i) any corporation or
organization (other than the Company or a Subsidiary) of which such Person is an
officer or partner or is, directly or indirectly, the Beneficial Owner of ten
(10) percent or more of any class of Equity Securities; (ii) any trust or other
estate in which such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity (other than an
Employee Plan Trustee), (iii) any Relative of such Person, or (iv) any officer
or director of any corporation controlling or controlled by such Person.
b. Beneficial Ownership: shall be determined, and a Person shall be
the Beneficial Owner of all securities which such Person is deemed to own
beneficially, pursuant to Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (or any successor rule or
statutory provision), or, if such Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to such Rule 13d-3
as in effect
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on the date hereof; provided, however, that a Person shall, in any event, also
be deemed to be the Beneficial Owner of any Voting Shares: (A) of which such
Person or any of its Affiliates or Associates is, directly or indirectly, the
Beneficial Owner; or (B) of which such Person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, and (ii) sole or shared voting or
investment power with respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed to be the
Beneficial Owner of any Voting Shares solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, with respect to shares of which
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner), or (C) of which another Person is, directly or indirectly,
the Beneficial Owner if such first mentioned Person or any of its Affiliates or
Associates acts with such other Person as a partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital stock of the
Company; and provided further, however, that (i) no director or officer of the
Company, nor any Associate or Affiliate of any such director or officer, shall,
solely by reason of any or all of such directors and officers acting in their
capacities as such, be deemed for any purpose hereof, to be the Beneficial Owner
of any Voting Shares of which any other such director or officer (or any
Associate or Affiliate thereof) is the Beneficial Owner (ii) no trustee of an
employee stock ownership or similar plan of the Company or any Subsidiary
("Employee Plan Trustee") or any Associate or Affiliate of any such Trustee,
shall, solely by reason of being an Employee Plan Trustee or Associate or
Affiliate of an Employee Plan Trustee, be deemed for any purposes hereof to be
the Beneficial Owner of any Voting Shares held by or under any such plan.
(c) A Change in Control: shall be deemed to have occurred if (A) any
Person (other than (a) the Company or any subsidiary, or (b) any pension, profit
sharing, employee stock ownership or other employee benefit plan of the Company
or any subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity) is or becomes, after the date of this Agreement,
the Beneficial Owners of 30% or more of the total voting power of the Voting
Shares, (B) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election or appointment by the Board of Directors or
nomination or recommendation for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (C) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the Voting Shares of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Shares of the
surviving entity) at least 75% of the total voting power represented by the
Voting Shares of the Company or such surviving entity outstanding, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
(d) Claim: means any threatened, pending or completed action, suit,
arbitration or proceeding, or any inquiry or investigation, whether brought by
or in the right of the Company or otherwise, that Indemnitee in good faith
reasonably believes might lead to the institution of any
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such action, suit, arbitration or proceeding, whether civil, criminal,
administrative, investigative or other, or any appeal therefrom.
(e) Equity Security: shall have the meaning given to such term under
Rule 3a11- 1 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on the date hereof.
(f) D&O Insurance: means any valid directors' and officers'
liability insurance policy maintained by the Company for the benefit of the
Indemnitee, if any.
(g) Determination: means a determination, and Determined means a
matter which has been determined based on the facts known at the time, by: (i) a
majority vote of a quorum of disinterested directors, or (ii) if such a quorum
is not obtainable, or even if obtainable, if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or, in the event
there has been a Change in Control, by the Special Independent Counsel (in a
written opinion) selected by Indemnitee as set forth in Section 6, or (iii) a
majority of the disinterested stockholders of the Company, or (iv) a final
adjudication by a court of competent jurisdiction.
(h) Excluded Claim: means any payment for Losses or Expenses in
connection with any Claim: (i) based or attributable to Indemnitee personally
gaining in fact any financial profit or other advantage to which Indemnitee is
not legally entitled; or (ii) for the return by Indemnitee of any remuneration
paid to Indemnitee without the previous approval of the stockholders of the
Company which is illegal; or (iii) for an accounting of profits in fact made
from the purchase or sale by Indemnitee of securities of the Company within the
meaning of Section 16 of the Securities Exchange Act of 1934, as amended, or
similar provisions of any state law; or (iv) resulting from Indemnitee's
knowingly fraudulent, dishonest or willful misconduct; or (v) resulting from the
Indemnitee's bad faith or as a result of active and deliberate dishonesty which
was material to the adjudicated cause of action or (vi) the payment of which by
the Company under this Agreement is not permitted by applicable law.
(i) Expenses: means any reasonable expenses incurred by Indemnitee
as a result of a Claim or Claims made against Indemnitee for Indemnifiable
Events including, without limitation, reasonable attorneys' fees and all other
costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(j) Fines: means any fine, penalty or, with respect to an employee
benefit plan, any excise tax or penalty assessed with respect thereto.
(k) Indemnifiable Event: means any event or occurrence, occurring
prior to or after the date of this Agreement, related to the fact that
Indemnitee is, was or has agreed to serve as, a director, officer, employee,
consultant, trustee, agent or fiduciary of the Company, or is or was serving at
the request of the Company as a director, officer, employee, consultant,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of anything done
or not done by Indemnitee, including, but not limited to, any breach of duty,
neglect, error, misstatement, misleading statement, omission, or other act done
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or wrongfully attempted by Indemnitee, or any of the foregoing alleged by any
claimant, in any such capacity.
(l) Losses: means any amounts or sums which Indemnitee is legally
obligated to pay as a result of a Claim or Claims made against Indemnitee for
Indemnifiable Events including, without limitation, damages, judgments and sums
or amounts paid in settlement of a Claim or Claims, and Fines.
(m) Person: means any individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
(n) Potential Change in Control: shall be deemed to have occurred if
(A) the Company, enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; or (B) the Board of Directors
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(o) Relative: means a Person's spouse, parents, children, siblings,
mother- and father-in-law, sons- and daughters-in-law, and brothers- and
sisters-in-law.
(p) Reviewing Party: means any appropriate person or body consisting
of a member or members of the Company's Board of Directors or any other person
or body appointed by the Board (including the Special Independent Counsel
referred to in Section 6) who is not a party to the particular Claim for which
Indemnitee is seeking indemnification.
(q) Subsidiary: means any corporation of which a majority of any
class of Equity Security is owned, directly or indirectly, by the Company.
(r) Trust: means the trust established pursuant to Section 7 hereof.
(s) Voting Shares: means any issued and outstanding shares of
capital stock of the Company entitled to vote generally in the election of
directors.
2. Basic Indemnification Agreement. In consideration of, and as an
inducement to, the Indemnitee rendering valuable services to the Company, the
Company agrees that in the event Indemnitee is or becomes a party to or witness
or other participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Company will indemnify Indemnitee to the fullest extent
authorized by law, against any and all Losses and Expenses (including all
interest, assessments and other charges paid or payable in connection with or in
respect of such Losses and Expenses) of such Claim, whether or not such Claim
proceeds to judgment or is settled or otherwise is brought to a final
disposition, subject in each case, to the further provisions of this Agreement.
3. Limitations on Indemnification. Notwithstanding the provisions of
Section 2, Indemnitee shall not be indemnified and held harmless from any Losses
or Expenses (a) which have been Determined, as provided herein, to constitute an
Excluded Claim; (b) indemnifiable hereunder if and to the extent that Indemnitee
has actually received payment in connection with
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such Losses and Expenses pursuant to the Certificate of Incorporation, By-laws,
D&O Insurance or otherwise; or (c) other than pursuant to the last sentence of
Section 4(d) or Section 14, in connection with any claim or proceeding initiated
by Indemnitee, or brought or made by Indemnitee against the Company or any
director or officer of the Company, unless the Company has joined in or the
Board of Directors has authorized such claim or proceeding.
4. Indemnification Procedures.
(a) Promptly after receipt by Indemnitee of notice of any Claim,
Indemnitee shall, if indemnification with respect thereto may be sought from the
Company under this Agreement, notify the Company of the commencement thereof;
provided, however, that the failure to give such notice promptly shall not
affect or limit the Company's obligations with respect to the matters described
in the notice of such Claim, except to the extent that the Company is prejudiced
thereby. Indemnitee agrees, further, not to make any admission or effect any
settlement with respect to such Claim without the consent of the Company, except
any Claim with respect to which the Indemnitee has undertaken the defense in
accordance with the second to last sentence of Section 4(d).
(b) If, at the time of the receipt of such notice, the Company has
D&O Insurance in effect, the Company shall give prompt notice of the
commencement of any Claim to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all Losses and Expenses payable as a result of such Claim.
(c) The Indemnitee shall be entitled employ counsel of its choosing
in defense of all Claims, and the Company shall be liable to Indemnitee under
this Agreement for any legal or other Expenses incurred by Indemnitee in
connection with such defense. The Company shall be obligated to pay the Expenses
of any Claim in advance of the final disposition thereof.
(d) All payments on account of the Company's indemnification
obligations under this Agreement shall be made within five (5) days of
Indemnitee's written request therefor unless a Determination is made that the
Claims giving rise to Indemnitee's request are Excluded Claims or otherwise not
payable under this Agreement, and all payments on account of the Company's
obligation to pay Expenses under Section 4(c) of this Agreement prior to the
final disposition of any Claim shall be made within five (5) days of
Indemnitee's written request therefor and such obligation shall not be subject
to any such Determination but shall be subject to Section 4(e) of this
Agreement. Notwithstanding the foregoing, such five (5) day period may be
extended for a reasonable time, not to exceed an additional fifteen (15) days,
if the Person making the Determination with respect to entitlement to
indemnification in good faith requires such additional time for the obtaining or
evaluating of documentation and/or information relating thereto. In the event
the Company takes the position that Indemnitee is not entitled to
indemnification in connection with the proposed settlement of any Claim,
Indemnitee shall have the right at his own expense to undertake defense of any
such Claim, insofar as such proceeding involves Claims against the Indemnitee,
by written notice given to the Company within 10 days after the Company has
notified Indemnitee in writing of its contention that Indemnitee is not entitled
to indemnification; provided, however, that the failure to give such notice
within such 10-day period shall not affect or limit the Company's obligations
with respect to any such Claim if such Claim is subsequently determined not to
be an Excluded Claim or otherwise to be payable under this Agreement, except to
the extent that the Company is prejudiced thereby. If it is subsequently
determined in connection with such proceeding
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that the Indemnifiable Events are not Excluded Claims and that Indemnitee,
therefore, is entitled to be indemnified under the provisions of Section 2
hereof, the Company shall promptly indemnify Indemnitee.
(e) Indemnitee hereby expressly undertakes and agrees to reimburse
the Company for all Losses and Expenses paid by the Company in connection with
any Claim against Indemnitee in the event and only to the extent that a
Determination shall have been made by a court of competent jurisdiction in a
decision from which there is no further right to appeal that Indemnitee is not
entitled to be indemnified by the Company for such Losses and Expenses because
the Claim is an Excluded Claim or because Indemnitee is otherwise not entitled
to payment under this Agreement.
(f) In connection with any Determination as to whether Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(g) Indemnitee hereby expressly undertakes and agrees to (i) notify
(and deliver to, as applicable) the Company in writing of any and all
information or documents relating to any Claim or matter which may entitle
Indemnitee to indemnification for Losses or Expenses under this Agreement; and
(ii) to notify the Company in writing of any and all developments relating to
any Claim to which the Company has notified Indemnitee in writing pursuant to
the terms of Section 4(d) herein of its contention that Indemnitee is not
entitled to indemnification under this Agreement.
5. Settlement. The Company shall have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any Claim
effected without the Company's prior written consent. The Company shall not
settle any Claim in which it takes the position that Indemnitee is not entitled
to indemnification in connection with such settlement without the consent of
Indemnitee, nor shall the Company settle any Claim in any manner which would
impose any Fine or any obligation on Indemnitee, without Indemnitee's written
consent. Neither the Company nor Indemnitee shall unreasonably withhold its or
his consent to any proposed settlement.
6. Change in Control; Extraordinary Transactions. The Company and
Indemnitee agree that if there is a Change in Control of the Company (other than
a Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control),
then all Determinations thereafter with respect to the rights of Indemnitee to
be paid Losses and Expenses under this Agreement shall be made only by a special
independent counsel (the "Special Independent Counsel") selected by Indemnitee
and approved by the Company (which approval shall not be unreasonably withheld)
or by a court of competent jurisdiction. The Company shall pay the reasonable
fees of such Special Independent Counsel and shall indemnify such Special
Independent Counsel against any and all reasonable expenses (including
reasonable attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
The Company covenants and agrees that, in the event of a Change in
Control of the type described in clause (C) of Section 1(c), the Company will
use its best efforts (a) to have the obligations of the Company under this
Agreement including, but not limited to, those under Section 7, expressly
assumed by the surviving, purchasing or succeeding entity, or (b) otherwise
adequately to provide for the satisfaction of the Company's obligations under
this Agreement, in a manner
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reasonably acceptable to the Indemnitee.
7. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
(the "Trust") for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund the Trust in an amount sufficient to satisfy
any and all Losses and Expenses which are actually paid or which Indemnitee
reasonably determines from time to time may be payable by the Company under this
Agreement. The amount or amounts to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party, in any
case in which the Special Independent Counsel is involved. The terms of the
Trust shall provide that upon a Change in Control: (i) the Trust shall not be
revoked or the principal thereof invaded without the written consent of
Indemnitee; (ii) the trustee of the Trust shall advance, within 20 days of a
request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby
agrees to reimburse the Trust under the circumstances under which Indemnitee
would be required to reimburse the Company under Section 4(e) of this
Agreement); (iii) the Company shall continue to fund the Trust from time to time
in accordance with the funding obligations set forth above; (iv) the trustee of
the Trust shall promptly pay to Indemnitee all Losses and Expenses for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement; and
(v) all unexpended funds in the Trust shall revert to the Company upon a final
determination by a court of competent jurisdiction in a final decision from
which there is no further right of appeal that Indemnitee has been fully
indemnified under the terms of this Agreement. The trustee of the Trust shall be
chosen by Indemnitee and shall be approved by the Company, which approval shall
not be unreasonably withheld.
8. No Presumption. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the Certificate of
Incorporation, the By-laws, the New York Business Corporation Law, any vote of
stockholders or disinterested directors or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity by holding
such office, and shall continue after Indemnitee ceases to serve the Company as
a director, officer, employee, or consultant for so long as Indemnitee shall be
subject to any Claim by reason of (or arising in part out of) an Indemnifiable
Event. To the extent that a change in the New York Business Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Certificate of
Incorporation, the By-laws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.
10. Liability Insurance. The Company shall maintain an insurance
policy or policies providing directors' and officers' liability insurance, and
the Indemnitee shall be covered by such policy or policies, in accordance with
its or their terms, in the minimum amount of $5 million. If the Company fails to
maintain such insurance, or if the Company does not maintain such policy or
policies in the minimum amount of $5 million, the Indemnitee may obtain such
insurance for its or his account, and the Company shall reimburse the Indemnitee
for any and all costs and expenses incurred in connection therewith.
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11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
12. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Losses and Expenses of a Claim but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to any Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
13. Liability of Company. Indemnitee agrees that neither the
stockholders nor the directors nor any officer, employee, consultant,
representative or agent of the Company shall be personally liable for the
satisfaction of the Company's obligations under this Agreement and Indemnitee
shall look solely to the assets of the Company for satisfaction of any claims
hereunder.
14. Enforcement.
(a) Indemnitee's right to indemnification and other rights under
this Agreement shall be specifically enforceable by Indemnitee only in the state
or Federal courts of the States of New York and shall be enforceable
notwithstanding any adverse Determination by the Company's Board of Directors,
independent legal counsel, the Special Independent Counsel or the Company's
stockholders and no such Determination shall create a presumption that
Indemnitee is not entitled to be indemnified hereunder. In any such action the
Company shall have the burden of proving that indemnification is not required
under this Agreement.
(b) In the event that any action is instituted by Indemnitee under
this Agreement, or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and reasonable expenses,
including reasonable counsel fees, incurred by Indemnitee with respect to such
action, unless the court determines that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous.
15. Term. This Indemnification Agreement shall survive termination
of the Consulting Agreement of even date herewith between Kanders & Co. and the
Company for a period of six (6) years after such termination.
16. Severability. In the event that any provision of this Agreement
is determined by a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision (including any provision
within a single section, paragraph or sentence) shall be limited or modified in
its application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this Agreement
shall be enforceable in accordance with their terms to the fullest extent
permitted by law.
17. Governing Law. This Agreement shall be governed by and construed
in
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accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
18. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consents to the jurisdiction of the courts of the States of New York
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agrees that any action instituted under this
Agreement shall be brought only in the state and Federal courts of the State of
New York.
19. Notices. All notices or other communications required or
permitted hereunder shall be sufficiently given for all purposes if in writing
and personally delivered or sent by registered or certified mail, return receipt
requested, with postage prepaid addressed as follows, or to such other address
as the parties shall have given notice of pursuant hereto:
(a) If to the Company, to:
With a copy to:
(b) If to Indemnitee, to:
Kanders & Company, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
With a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
20. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
21. Successors and Assigns. This Agreement shall be (i) binding upon
all successors and assigns of the Company, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, and (ii) binding
upon and inure to the benefit of any successors and assigns, heirs, and personal
or legal representatives of Indemnitee.
22. Amendment; Waiver. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver
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constitute a continuing waiver.
IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the day and year first above written.
-------------------------------------
Xxxxxx X. Xxxxxxx
KANDERS & COMPANY, INC.
By:
---------------------------------
Name:
Title:
THE XXXXXX BIOMECHANICS GROUP, INC.
By:
---------------------------------
Name:
Title:
ATTEST:
By:
---------------------------------
Name:
Title:
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