EXHIBIT 99.1
XXXXXXX RIVER ASSOCIATES INCORPORATED
INDEMNITY AGREEMENT
This Indemnity Agreement is made as of __________, 2003 by and among
Xxxxxxx River Associates Incorporated, a Massachusetts corporation (the
"Company"), and the stockholders and optionholders of the Company named in
EXHIBIT A hereto (the "Selling Stockholders").
WHEREAS, the Company and the Selling Stockholders propose to sell shares of
the common stock, without par value (the "Common Stock"), of the Company to the
several underwriters (the "Underwriters") named in that certain underwriting
agreement (the "Underwriting Agreement") of even date herewith by and among the
Company, the Selling Stockholders, Xxxxxxx Xxxxx & Company, L.L.C., Xxxxx,
Xxxxxxxx & Xxxx, Inc., and Xxxxxx Xxxxxxxxxx Xxxxx LLC, as representatives of
the Underwriters, upon the terms described in the Underwriting Agreement; and
WHEREAS, pursuant to Section 11 of the Underwriting Agreement, the Selling
Stockholders have agreed to indemnify the Underwriters in certain respects and
contribute to the payment of certain amounts, and the Selling Stockholders
desire that the Company agree to indemnify them in certain respects and
contribute to the payment of certain amounts as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Selling Stockholders hereby agree as follows:
1. INDEMNIFICATION OF THE SELLING STOCKHOLDERS. The Company shall
indemnify and hold harmless each Selling Stockholder, and each person, if any,
who controls any Selling Stockholder within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "Securities Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any loss, claim, damage, liability or expense, as incurred, to which
such Selling Stockholder or such controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law, under Section 11 of the Underwriting Agreement, or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Selling Stockholder or such
controlling person, as the case may be), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any failure, omission or alleged failure or
omission on the part of the Company, in connection with the Registration
Statement, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the offering contemplated thereby, to comply with any
provision of the Securities Act and the then applicable rules and regulations of
the Securities and Exchange Commission or other federal agency at the time
charged with administration of the Securities Act; (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430A or Rule 434 under the
Securities Act, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; (iv) in
whole or in part upon any inaccuracy in the representations and warranties of
the Company contained in the Underwriting Agreement; (v) in whole or in part
upon any failure of the Company to perform its obligations under the
Underwriting Agreement or under law; (vi) upon any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the offering contemplated by the Underwriting Agreement, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause
(ii) or (iii) above; and shall reimburse each Selling Stockholder and each such
controlling person for any and all expenses (including the reasonable fees and
disbursements of not more than one separate counsel (together with local
counsel) for the Selling Stockholders) as such expenses are reasonably incurred
by such Selling Stockholder or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. Notwithstanding the foregoing, the
indemnity and reimbursement agreements in the preceding sentence shall not apply
to any loss, claim, damage, liability or expense to the extent, but only to the
extent, that it arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The
indemnity and reimbursement agreements set forth in this Section 1 shall be in
addition to any liabilities that the Company may otherwise have.
2. NOTIFICATION AND OTHER INDEMNIFICATION PROCEDURES. Promptly after
receipt by an indemnified party under Section 1 of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the Company under Section 1, notify the Company in writing of the
commencement thereof, but the omission so to notify the Company will not relieve
the Company from any liability which the Company may have to any indemnified
party for contribution or otherwise than under the indemnity agreement contained
in Section 1 or to the extent the Company is not prejudiced as a proximate
result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from the Company, the Company will be entitled to participate in, and, to the
extent that it shall elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel selected by the Company; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the Company and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the Company and the
indemnified party in conducting the defense of any such action or that there may
be legal defenses available to such indemnified party and/or other indemnified
parties that are different from or in addition to those available to the
Company, the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the Company, to assume such legal defenses and
otherwise to participate in the defense of such action on behalf of
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such indemnified party or parties. Upon receipt of notice from the Company to
such indemnified party of the Company's election so to assume the defense of
such action, the Company will not be liable to such indemnified party under
Section 1 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
Company shall not be liable for the fees and expenses of more than one separate
counsel (together with local counsel), satisfactory to the Company, representing
the indemnified parties who are parties to such action) or (ii) the Company
shall not have employed counsel to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of which
cases the reasonable fees and expenses of counsel shall be at the expense of the
Company. As a condition to indemnification hereunder, each indemnified party
shall cooperate fully with the Company in the defense of any action with respect
to which indemnification is to be sought, and, at the Company's expense, shall
provide all such documents and take all such actions which the Company may
reasonably request in connection with such defense.
3. SETTLEMENTS. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company shall
indemnify the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. The Company shall not, without
the prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
4. CONTRIBUTION.
(a) If the indemnification provided for in Section 1 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then the Company shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred
to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the indemnified
party, on the other hand, from the offering of the Shares pursuant to the
Underwriting Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and
the indemnified party, on the other hand, in connection with the statements
in or omissions from any preliminary prospectus, the Prospectus or the
Registration Statement (or any amendment or supplement to any of the
foregoing) or inaccuracies in the representations and warranties of the
Company in the Underwriting Agreement that resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one
hand, and the indemnified party, on the other hand, in connection with the
offering of the Shares
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pursuant to the Underwriting Agreement shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bears to the total net proceeds from the
offering received by the indemnified party. The relative fault of the
Company, on the one hand, and the indemnified party, on the other hand,
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by
the Company, on the one hand, or the indemnified party, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in Section 1 and
Section 2, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, defending, settling or compromising
any action or claim. The provisions set forth in Section 2 with respect to
notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 4; PROVIDED, HOWEVER, that no
additional notice shall be required with respect to any action for which
notice has been given under Section 2 for purposes of indemnification.
(c) The Company and the Selling Stockholders agree that it would not
be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Selling Stockholders were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 4.
(d) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 4, each person, if any, who
controls a Selling Stockholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as such Selling Stockholder.
5. CAPITALIZED TERMS. Except as otherwise specified, capitalized terms
used herein which are not otherwise specifically defined herein shall have the
meanings given them in the Underwriting Agreement. Notices required or permitted
hereunder shall be given in the manner prescribed in Section 16 of the
Underwriting Agreement.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, the Company, the Selling Stockholders, and their
respective controlling persons, officers, directors, successors, heirs,
executors, administrators and assigns.
7. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnity
Agreement as an agreement under seal as of the date first written above.
XXXXXXX RIVER ASSOCIATES INCORPORATED
By:
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Xxxxx X. Xxxxxxx, President
THE SELLING STOCKHOLDERS
By:
--------------------------------------
Xxxxx X. Xxxxxxx, Attorney-in-Fact
By:
--------------------------------------
J. Xxxxxxx Xxxxxx, Attorney-in-Fact
By:
--------------------------------------
Xxxxx X. Xxxxx, Attorney-in-Fact
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EXHIBIT A
SELLING STOCKHOLDERS
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx Xxxxx as Trustee of the Besen Family
Trust u/i/d March 30, 1998
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxx Family, LLC
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx as Trustee of the Xxxxxxx X. Xxxxxx
GST Trust UA 2/14/90
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx as Trustee of the Xxxxxxx X.
Xxxxxx GST Trust UA 2/14/90
Xxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx as Trustee of The Salop
Irrevocable GST-Taxable Trust 1998 u/i/d
March 17, 1998
Xxxxxx X. Xxxxxx as Trustee of The Salop
Irrevocable GST-Exempt Trust 1998 u/i/d
March 17, 1998
Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxx as Trustee of the Xxxxx X.
Xxxxxxx Qualified Annuity Trust - 1998 and
the Xxxxx X. Xxxxxxx Irrevocable Trust 1998
Xxxxxxx X. Xxxxxx as Trustee of the Xxxx Xxxxx
Xxxxxxxx Trust DTD 8/21/90
Xxxxxxx X. Xxxxxx as Trustee of the Xxxxxxxx Xxxx
Xxxxxxxx Trust DTD 12/14/91
Xxxxxxx X. Xxxxxx as Trustee of the Xxxxxx Xxxxxxx
Xxxxxxxx Trust DTD 8/21/90
Xxxx X. Xxxxxx as Trustee of The Xxxxxxx X.
Xxxxxx Irrevocable Trust 1998
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxxx
Xxxxxxx X. Xxxx
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Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, JTWROS
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxx as Trustee of The J. Xxxxxxx
Xxxxxx Irrevocable Trust, 2000
C. Xxxxxxxxxxx Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
W. Xxxxx Xxxxxxxxxx
Xxxxx Xxxx Xxxxxxxx as Trustee of The Xxxxxxx X.
Xxxxxxxx Irrevocable Trust 1998
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx as Trustee of The Xxxxxx
Children's Family Trust
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx-Xxxxxx
Xxxxx X. Xxxxxxx-Xxxxxx as Trustee of the Xxxxx
X. Xxxxxx GST Trust UA 2/14/90
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