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EXECUTION COPY
EXHIBIT 10.5
LIMITED INDEMNIFICATION AGREEMENT
LIMITED INDEMNIFICATION AGREEMENT, dated October 20, 1997 (the
"Agreement"), by and among MLX Corp., a Georgia corporation ("Buyer") and
certain holders (the "Securityholders") of shares of common stock ("Common
Stock"), par value $0.01 per share, of Xxxxxx Metalcraft Holding Co., a
Delaware corporation (the "Company") and options and warrants to acquire shares
of Common Stock (such shares of Common Stock, warrants and options, the
"Company Securities").
Pursuant to an Agreement and Plan of Merger dated as of October 20, 1997
(the "Merger Agreement"), among Buyer and the Company, the Company shall be
merged with and into Buyer (the "Merger"), with Buyer being the surviving
corporation (hereinafter referred to as the "Surviving Corporation").
Pursuant to that certain Securities Purchase Agreement, dated as of
October 20, 1997 (the "Securities Purchase Agreement"), by and among Buyer and
certain holders (the "Selling Securityholders") of Company Securities,
immediately prior to the Merger, the Selling Securityholders will sell and
Buyer will purchase, at the prices and on the terms and conditions set forth
therein, the Company Securities of the Selling Securityholders set forth in the
Securities Purchase Agreement.
Buyer has requested as an inducement for it to enter into the Merger
Agreement and the Securities Purchase Agreement that the Securityholders
execute and deliver this Agreement and the Securityholders are willing to
execute and deliver this
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Agreement as an inducement to Buyer to enter into the Merger Agreement and
Securities Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Indemnification.
1.1 Obligations to Indemnify. Each Securityholder hereby agrees
that subject to Section 1.2 below, such Securityholder shall be severally, and
not jointly, liable to and shall indemnify, defend and hold harmless Buyer, its
affiliates (including the Surviving Corporation) and their respective
directors, officers, employees, affiliates, successors and assigns (each, an
"Indemnified Party") pursuant to this Agreement from and against any and all
loss, cost, damage or expense (including reasonable fees of counsel) whatsoever
("Losses") based upon, arising out of or otherwise resulting from any breach of
any representation or warranty of the Company, or breach of any covenant or
obligation of the Company, in either case, contained in the Merger Agreement,
or the enforcement by the Company of its rights hereunder; provided that for
purposes of this Agreement, each representation and warranty of the Company
contained in the Merger Agreement will, for purposes of this Agreement, be
deemed amended and supplemented by the disclosures contained in the certificate
delivered to Buyer as required by Section 6.2.3 of the Merger Agreement. Each
Security holder shall not be liable for any breaches of representations and
warranties of the Company of which none of the persons identified on Schedule
1.1 had actual knowledge on or before the Closing Date.
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1.2 Limitation on Liability. The indemnification provided for in
this Agreement shall be subject to the limitation that:
(a) no Securityholder shall be obligated to make any payment
for indemnification pursuant to this Agreement in respect of any Losses until
the aggregate amount of such Losses exceeds $500,000 (the "Basket Amount"),
whereupon the Securityholders shall, severally and not jointly, be obligated to
pay, subject to clauses (b), (c) and (d) below, all such amounts for
indemnification in excess of the Basket Amount;
(b) the Securityholders shall have no obligation to make
indemnification payments under this Agreement in excess of $1,600,000 in the
aggregate;
(c) with respect to any Losses, each Securityholder shall be
obligated to pay, subject to the other limitations set forth in this Section
1.2, an amount equal to the product of (A) the amount of such Losses, times (B)
a fraction, the numerator of which is the number of shares of Common Stock
owned by such Securityholder and/or the number of shares of Common Stock for
which such Securityholder's Company Securities are exercisable immediately
prior to the acquisition of Company Securities pursuant to the Securities
Purchase Agreement, as the case may be, and the denominator of which is the
total number of shares of Common Stock owned by all Securityholders plus the
number of shares of Common Stock reserved for issuance upon the exercise of
options or warrants owned by all Securityholders, in each case, immediately
prior to the acquisition of Company
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Securities pursuant to the Securities Purchase Agreement.
(d) except with respect to Losses for which an Indemnification
Notice (as defined below) has been given prior to 18 months after the Effective
Time, the obligation to make indemnification payments under this Agreement
shall terminate 18 months after the Effective Time.
1.3 Other Liability. Nothing in this Agreement shall limit the
several liability of each Securityholder under the Securities Purchase
Agreement.
1.4 Notice to Securityholders.
(a) Notice of Asserted Liability. Promptly after an
Indemnified Party under this Agreement receives notice of any demand, claim or
circumstances which, with the lapse of time, would or might give rise to a
claim or the commencement (or threatened commencement) of any action, audit,
proceeding or investigation (an "Asserted Liability") that may result in a
Loss, or otherwise determines that any Securityholder is or may be obligated to
provide indemnification to it under this Agreement such Indemnified Party shall
give notice thereof (the "Indemnification Notice") to the Securityholders. The
Indemnification Notice shall describe the Asserted Liability or Loss, as the
case may be, in reasonable detail, and shall indicate the amount (estimated, if
necessary and to the extent it is feasible) of the Loss that has been or may be
suffered by Buyer. The failure to give the Indemnification Notice promptly
shall not bar indemnification hereunder except to the extent provided in
Section 1.2(d) or to the extent such failure prejudiced the party against whom
indemnification is sought.
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(b) Opportunity to Defend. In the event the
Securityholders may be obligated to make indemnification payments with respect
to an Asserted Liability the Securityholders may elect to control and
compromise or defend, at the Securityholders' expense and by their own counsel,
any such Asserted Liability (other than any Asserted Liability in respect of
Taxes). Any such decisions and actions with respect to any such Asserted
Liability shall be made by Securityholders obligated to pay a majority of
losses under Section 1.2(c). If the Securityholders elect to compromise or
defend such Asserted Liability, they shall within 30 days (or sooner, if the
nature of the Asserted Liability so requires) notify Buyer of their intent to
do so, and, if requested, Buyer shall cooperate at the expense of the
Securityholders (with respect to out-of-pocket expenses), in the compromise of,
or defense against such Asserted Liability. If the Securityholders elect not to
compromise or defend the Asserted Liability, or fail, in a timely manner, to
notify Buyer of their election as herein provided, Buyer shall have the right,
without prejudice to its right to indemnification from the Securityholders, to
pay, compromise or defend such Asserted Liability. Notwithstanding any other
provision of this Agreement, neither the Securityholders nor Buyer may settle
or compromise any claim over the objection of the other. In any event, both
Buyer and the Securityholders may participate in the defense of such Asserted
Liability. If the Securityholders choose to defend any claim, Buyer shall make
available to the Securityholders any books, records or other documents within
its control that are reasonably requested for such defense and shall afford
reasonable access to its personnel and the personnel of the Surviving
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Corporation. Notwithstanding any other provision of this Agreement, if Buyer
shall determine in good faith that the indemnification payment as set forth in
Section 1.2(a) and (b) will not be sufficient to satisfy the Asserted
Liability, Buyer may elect to control, compromise or defend such Asserted
Liability, and in such event shall permit the reasonable participation of the
Securityholders.
2. Consent to Jurisdiction and Service of Process. Any legal action,
suit or proceeding arising out of or relating to this Agreement may be
instituted in the United States District Court for the District of Delaware,
and each party agrees not to assert, by way of motion, as a defense, or
otherwise, in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of such Court, that the action, suit or
proceeding is brought in an inconvenient forum, that the venue of the action,
suit or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such Court. Each party irrevocably submits
to the jurisdiction of such Court in any such action, suit or proceeding. Any
and all service of process and any other notice in any such action, suit or
proceeding shall be effective against any party if given personally or by
registered or certified mail, return receipt requested, or by any other means
of mail that requires a signed receipt, postage prepaid, mailed to such party
as herein provided. Nothing herein contained shall be deemed to affect the
rights of any party to serve process in any manner permitted by law or to
commence legal proceedings or otherwise proceed against any other party in any
other jurisdiction if permitted by law.
3. Miscellaneous.
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3.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed or sent by certified, registered or express mail, postage prepaid. Any
such notice shall be deemed given when so delivered personally, telegraphed,
telexed, or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States mails, as follows:
(a) if to Buyer or to the Surviving Corporation, to:
MLX Corp.
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to a Securityholder, to the address set forth on Exhibit
A hereto:
3.2 Entire Agreement. This Agreement is entered into and delivered
pursuant to the Merger Agreement and the Securities Purchase Agreement and
together with such agreements contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto.
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3.3 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the Buyer and by the
Securityholders who are, pursuant to Section 1.2(a), obligated to pay a
majority of Losses as determined under Section 1.2(c). No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such
right, power or privilege preclude any further exercise thereof or the exercise
of any other such right, power or privilege. The rights and remedies of any
party based upon a breach of any representation, warranty, covenant or
agreement contained in the Merger Agreement shall in no way be limited by the
fact that such inaccuracy or breach may also be the subject matter of any other
representation, warranty, covenant or agreement contained in the Merger
Agreement (or in any other agreement between the parties) as to which there is
no inaccuracy or breach.
3.4 Effectiveness. This Agreement shall become effective only upon
the consummation of the Merger.
3.5 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
3.6 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
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3.7 Further Assurances. Each of the parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
3.8 Variations in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
3.9 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
3.10 Headings. The headings in this Agreement are for
reference only and shall not affect the interpretation of this Agreement.
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Schedule 1.1 to
Limited Indemnification Agreement
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx
