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EXHIBIT 10.12
INDEMNIFICATION AGREEMENT
This AGREEMENT is effective as of December 31, 1995 by and between
Thermo Instrument Systems Inc., a Delaware corporation ("THI"), and Thermo
Vision Corporation, a Delaware corporation ("Vision").
WHEREAS, Vision is a wholly owned subsidiary of Thermo Optek
Corporation ("Optek"), which is a wholly owned subsidiary THI;
WHEREAS, THI owns all of the outstanding stock of CID Technologies Inc.
("CID"), Nicolet Instrument Corporation ("Nicolet"), and Thermo Xxxxxxx Xxx
Corporation ("TJA"), and TJA owns all of the outstanding stock of Scientific
Measurement Systems Inc. ("SMS");
WHEREAS, effective as of the date hereof, THI plans to contribute the
stock of TJA and CID to Nicolet, whereas Nicolet intends to contribute the stock
of TJA and CID to Optek, whereas TJA plans to distribute the stock of SMS to
Optek, and whereas Optek intends to contribute the stock of CID and SMS to
Vision; and
WHEREAS, in connection therewith, THI is willing to indemnify and hold
harmless Vision as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties hereto hereby agree as follows:
1. INDEMNIFICATION BY THI.
(a) THI agrees to indemnify and hold harmless Vision from any
and all claims, damages, losses (including diminution in value), liabilities,
costs and expenses (including, without limitation, settlement costs and any
reasonable legal, accounting or other expenses for investigating or defending
any actions or threatened actions) (collectively "Losses") incurred by Vision
relating solely to the acts or omissions, or related to conduct, of CID or SMS
prior to December 31, 1995.
(b) Whenever any claim shall arise for indemnification hereunder,
Vision shall promptly notify THI of the claim and, when known, the facts
constituting the basis for such claim. In the event of any such claim for
indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third-party, the notice to THI shall specify, if known,
the amount or an estimate of the amount of the liability arising therefrom.
Vision shall not settle or compromise any claim by a third party for which
Vision is entitled to indemnification hereunder without the prior consent of
THI, unless suit shall have been instituted against Vision and THI shall not
have taken control of such suit after notification thereof as provided in
Paragraph 1(c) of this Agreement.
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(c) In connection with any claim giving rise to indemnity
hereunder resulting from or arising out of any claim or legal proceeding by a
person who is not a party to this Agreement, THI at its sole cost and expense
may, upon notice to Vision, assume the defense of any such claim or legal
proceeding if it acknowledges to Vision its obligations to indemnify Vision with
respect to all such elements of such claim. Vision shall be entitled to
participate in (but not control) the defense of any such action, with its
counsel and at its own expense. If THI does not assume the defense of any such
claim or litigation resulting therefrom within 30 days after the date THI is
notified of such claim pursuant to Paragraph 1(b) hereof, (i) Vision may defend
against such claim or litigation, after giving notice of the same to THI, on
such terms as are appropriate in Vision's reasonable judgment, and (ii) THI
shall be entitled to participate in (but not control) the defense of such
action, with its counsel and at its own expense.
2. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that THI and Vision may not assign their respective obligations hereunder
without the prior written consent of the other party. Any assignment in
contravention of this provision shall be void.
(b) This Agreement represents the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may be amended or modified only by a written instrument executed
by THI and Vision.
(c) Any notice or other communication shall be in writing and
shall be personally delivered, or sent by overnight or second day courier or by
first class mail, return receipt requested, to the party to whom such notice or
other communication is to be given or made at such party's address set forth
below, or to such other address as such party shall designate by written notice
to the other party as follows:
If to THI:
Thermo Instrument Systems Inc.
000 Xxxxxxx Xxxx,
Xxxx Xxxxxx Xxx 0000
Xxxxx Xx, Xxx Xxxxxx 00000
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
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If to Vision:
Thermo Vision Corporation
0X Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
provided that any notice of change of address, and any notice or other
communication given otherwise than as specified above shall be effective only
upon receipt; and further that any presumption of receipt by the addressee shall
be inoperable during the period of any interruption in Postal Service.
(d) This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware.
(e) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(f) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall be one
and the same document.
(g) This Agreement is the joint work product of the parties
hereto, and, therefore, in the case of an ambiguity no inference shall be drawn
to the detriment of either party.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
THERMO INSTRUMENT SYSTEMS INC. THERMO VISION CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
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Title: President Title: President
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