Exhibit 10.23
INDEMNIFICATION AGREEMENT
AGREEMENT made as of this ____ day of February, 2001,
between The Xxxxxx Biomechanics Group, Inc., a New York corporation (the
"Company"), and _____________ (the "Indemnitee").
WHEREAS, it is essential to the Company and its
stockholders to attract and retain qualified and capable directors and
officers;
WHEREAS, the Certificate of Incorporation of the Company
(the "Certificate of Incorporation") and the By-laws of the Company (the
"By-laws") allow the Company to indemnify and advance expenses to its
directors and officers;
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 the protection provided
by the Certificate of Incorporation and the By-laws will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation
of the Certificate of Incorporation and the By-laws), 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 director and/or
officer;
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 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
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otherwise, that Indemnitee in good faith reasonably believes might lead to
the institution of any 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,
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any breach of duty, neglect, error, misstatement, misleading statement,
omission, or other act done 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
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hereunder if and to the extent that Indemnitee has actually received payment
in connection with 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 Company shall be obligated to pay the Expenses of
any Claim in advance of the final disposition thereof and the Company, if
appropriate, shall be entitled to assume the defense of such Claim, with
counsel reasonably satisfactory to Indemnitee, upon the delivery to
Indemnitee of reasonable written notice of its election to do so. After
delivery of such notice, the Company will not be liable to Indemnitee under
this Agreement for any legal or other Expenses subsequently incurred by
Indemnitee in connection with such defense other than reasonable Expenses of
investigation; PROVIDED THAT Indemnitee shall have the right to employ its
counsel in such Claim but the fees and expenses of such counsel incurred
after delivery of notice from the Company of its assumption of such defense
shall be at the Indemnitee's expense; PROVIDED FURTHER that if: (i) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that there will be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense, or (iii) the Company shall not, in fact, have employed counsel
to assume the defense of such action, the reasonable fees and expenses of
counsel shall be at the expense of the Company.
(d) All payments on account of the Company's
indemnification obligations under this Agreement shall be made within sixty
(60) 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, PROVIDED THAT 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 30 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 sixty
(60) day period may be extended for
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a reasonable time, not to exceed an additional thirty (30) 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 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
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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 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
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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. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or policies,
in accordance with its or their terms, to the maximum extent of the coverage
available for any director of the Company.
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.
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15. 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.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
17. 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.
18. 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:
The Xxxxxx Biomechanics Group, Inc.
000 Xxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
Attn: President
With a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
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(b) If to Indemnitee, to:
19. 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.
20. 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.
21. 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
constitute a continuing waiver.
IN WITNESS WHEREOF, the Company and Indemnitee have
executed this Agreement as of the day and year first above written.
THE XXXXXX BIOMECHANICS GROUP, INC.
By:___________________________
Name:
Title:
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