Exhibit 10.16
INDEMNIFICATION AGREEMENT dated the day of December, 2003 between and
among Mikron Infrared, Inc., a New Jersey corporation (the "Company"), Catalyst
Financial, LLC. ("Catalyst"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Blitzer
Xxxxxxxxx & Company ("BRC") Each of Catalyst, Xxxxxxx and BRC is sometimes
hereinafter referred to as a "Selling Shareholder," and Catalyst, Xxxxxxx and
BRC together, are sometimes hereinafter referred to as the "Selling
Shareholders".
WHEREAS, Catalyst has purchased 100,000 unregistered shares of the
Company's common stock, $.003 par value per share (the "Common Stock") from the
Company (the "Catalyst Securities"), and BRC has purchased 90,000 unregistered
shares of Common Stock from the Company (the "BRC Securities"); and
WHEREAS, the Company proposes to file, or has filed, with the Securities
and Exchange Commission a registration statement on Form SB-2 covering the
registration of the Catalyst Securities, the BRC Securities and 150,000 shares
of Common Stock held by Xxxxxxx (the "Xxxxxxx Securities" which, together with
the Catalyst Securities and the BRC Securities, are hereinafter referred to as
the "Securities") under the Securities Act of 1933, as amended (the "1933 Act"),
including the prospectus forming a part thereof (such registration statement,
including the exhibits thereto and schedules thereto, if any, at the time it
becomes effective is herein called the "Registration Statement" and such
prospectus, in the form first furnished to the Selling Shareholders for use in
connection with the offering of the Securities is herein called the
"Prospectus"); and
WHEREAS, the Selling Shareholders understand that the Company shall
require them to indemnify it in the manner hereinbelow provided as a condition
to the Company's agreement to register the Securities under the 1933 Act; and
WHEREAS, the Company understands that the Selling Shareholders shall
require it to indemnify each of them in the manner hereinbelow provided as a
condition to their indemnification of the Company,
NOW, THEREFORE, in consideration of the foregoing, and the mutual terms
and conditions hereinbelow set forth, the Company and the Selling Shareholders
agree, as follows:
1. Indemnification.
(a) Indemnification of the Company by the Selling Shareholders. Each Selling
Shareholder agrees to indemnify and hold harmless the Company and its
directors, officers, counsel employed in the preparation of the
Registration Statement and independent accountants from and against any
loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), 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 or arising out of any untrue statement
or alleged untrue statement of a material fact included in the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a
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material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that such Selling Shareholder shall be liable in any
such case only to the extent that any such loss, claim, damage, liability
or expense arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information
concerning such Selling Shareholder furnished to the Company in writing by
such Selling Shareholder specifically for inclusion therein.
(b) Indemnification of Selling Shareholders by the Company. The Company agrees
to indemnify and hold harmless each Selling Shareholder against any and
all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), 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 or arising out of any untrue statement or alleged untrue
statement of a material fact included in 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;
provided, however, that the foregoing indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by any Selling Shareholder expressly for use in
the Registration Statement (or any amendment thereto), or the Prospectus
(or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party, and any
delay in such notification, shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
that it may have otherwise than on account of this Agreement. In the case
of parties indemnified pursuant to Section 1(a) or 1(b) above, counsel to
the indemnified parties shall be selected by the Company. A Selling
Shareholder, in the case of any private civil litigation or any
investigation, litigation or proceeding by any governmental agency or
body, commenced or threatened against it (each, a "Proceeding") in respect
of which indemnity may be sought under Section 1(a) above, may participate
at its own expense in the defense of any such Proceeding; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one Proceeding or separate but similar or related Proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
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written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any Proceeding, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 1 or Section 2 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
Proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 1(c) effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
2. Contribution. If the indemnification provided for in Section 1 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company, on the one hand, and the affected Selling
Shareholder on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and the each of the
Selling Shareholders, 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 relates
to information supplied by the Company or such Selling Shareholder.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 2 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
Proceeding, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
3. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Company shall be directed to
00 Xxxxxxxx Xxxx, Xxxxxxx,
0
Xxx Xxxxxx 00000, attention of Xxxxxx X. Xxxxxx, President, with copies to Arent
Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Xxxxxx X. Xxxxxx; notices to Xxxxxxx and/or Catalyst shall be directed
to 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000, attention Xxxxxx
X. Xxxxxxx with copies to Xxxxx X. Xxxxxxxxx, Esq., 000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000; and notices to BRC shall be directed to 000 Xxxx
00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxxx Xxxxxxx.
4. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Company and the Selling Shareholders and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Company and
the Selling Shareholders and their respective successors, heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Company and the Selling Shareholders and their
respective successors, heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities from any
Selling Shareholder shall be deemed to be a successor by reason merely of such
purchase.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without reference to its
conflicts of laws provisions.
6. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
Mikron Infrared, Inc.
By: ____________________________________
Xxxxxx X. Xxxxxx, President
Catalyst Financial, LLC
By: ____________________________________
Xxxxxx X. Xxxxxxx,
________________________________________
Xxxxxx X. Xxxxxxx
Blitzer Xxxxxxxxx & Company
By: ____________________________________
Xxxxxxx Xxxxxxx
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