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EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
This AGREEMENT is dated as of August 21, 1997 by and between Thermo
Instrument Systems Inc., a Delaware corporation ("THI"), and ONIX Systems Inc.,
a Delaware corporation ("ONIX"). As used herein ONIX shall mean ONIX Systems
Inc. and its direct and indirect wholly owned subsidiaries.
WHEREAS, ONIX is a wholly owned subsidiary of THI;
WHEREAS, THI has agreed to transfer to ONIX all of the Shares as that
term is defined in the Stock Transfer Agreement of even date herewith between
THI and ONIX (the "Stock Transfer Agreement"); and
WHEREAS, in connection therewith, THI is willing to indemnify and hold
harmless ONIX 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 ONIX 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 ONIX relating solely
to the acts or omissions, or related to conduct, of the business of the
Subsidiaries as defined in the Stock Transfer Agreement, including foreign
operations thereof, that occurred prior to the date hereof. Notwithstanding the
foregoing, THI agrees to indemnify and hold harmless ONIX from any and all
Losses incurred by ONIX relating to the following: (i) the ownership, operation,
assets and business of the BJ Software division formerly owned and operated by
Thermo Instrument Controls Inc., a Delaware corporation, whether such Losses
arose before or after the date of this Agreement; (ii) the radioactive materials
incident that occurred at the operations of Xxx-Xxx/Sensall Inc. in April 1994;
and (iii) the Cannonbear arbitration except to the extent such Losses are
directly attributable to (a) royalties due, if any, arising from sales by ONIX,
after the date of this Agreement, of products incorporating technology which is
the subject of the Cannonbear arbitration or (b) the breach by ONIX of any
obligations arising after the date of this Agreement under contracts which are
the subject of the Cannonbear arbitration.
(b) Whenever any claim shall arise for indemnification
hereunder, ONIX 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. ONIX
shall not settle or compromise any claim by a third party for which ONIX is
entitled to indemnification hereunder
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without the prior consent of THI, unless suit shall have been instituted
against ONIX and THI shall not have taken control of such suit after
notification thereof as provided in Paragraph 1(c) of this Agreement.
(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 ONIX, assume the defense of any such claim or legal
proceeding if it acknowledges to ONIX its obligations to indemnify ONIX with
respect to all such elements of such claim. ONIX 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) ONIX may defend
against such claim or litigation, after giving notice of the same to THI, on
such terms as are appropriate in ONIX'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 ONIX 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 ONIX.
(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.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
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If to ONIX:
ONIX Systems Inc.
00000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 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. ONIX SYSTEMS INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Title: President Title: President
