Exhibit 5
INDEMNIFICATION AGREEMENT
AGREEMENT made as of this 13th day of February, 2001, between The Xxxxxx
Biomechanics Group, Inc., a New York corporation (the "Company"), Kanders &
Company, Inc. ("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statutory provision), or, if such Rule 13d-3 shall be rescinded and there shall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 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 such action, suit,
arbitration or proceeding, whether civil, criminal, administrative,
investigative or other, or any appeal therefrom.
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(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 or wrongfully
attempted by Indemnitee, or any of the foregoing alleged by any claimant, in any
such capacity.
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(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 such
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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
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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 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
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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 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.
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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.
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
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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
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:
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.
(b) If to Indemnitee, to:
Kanders & Company, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
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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 constitute a continuing
waiver.
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IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
KANDERS & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE XXXXXX BIOMECHANICS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ATTEST:
By: /s/ Xxx Xxxxxxxx
----------------
Name: Xxx Xxxxxxxx
Title:
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