Exhibit 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and
entered
into this
17th day of August, 2005, between Robocom Systems
International,
Inc.,
a New York corporation (the "Company"), and Irwin Balaban
("Balaban"), Lawrence
Klein ("Klein") and Herbert Goldman ("Goldman",
Balaban,
Klein and Goldman, are referred to herein, collectively, as the
"Indemnitees", and each individually, as an
"Indemnitee").
WHEREAS, Indemnitees are principal shareholders of the
Company;
WHEREAS, each Indemnitee executed, with respect to Section 7.01
and
Article X
only, that certain
Asset Purchase
Agreement by and between the
Company
and Avantce RSI, LLC, a Delaware limited liability company
("Avantce"), dated as
of August 17, 2005 (the "Purchase Agreement"),
pursuant
to which the
Indemnitees have
agreed, subject to the
terms and
conditions
of Article X of the Purchase Agreement, to jointly and
severally,
indemnify, defend and hold Avantce and its officers,
directors,
affiliates
and employees (collectively the "Avantce Indemnitees" and
individually, an
"Avantce Indemnitee") harmless against any and all
damages,
losses, liabilities or costs arising from (a) any material
misrepresentation by
the Company
contained in or made pursuant to the
Purchase
Agreement or in any certificate, instrument or agreement
delivered
to Avantce pursuant to or in connection with the Purchase
Agreement;
or (b) any
material breach of warranty or any default
in the
performance of any
covenant or
obligation
of the Company under or in
connection
with the Purchase Agreement;
WHEREAS, in view of
the considerations set forth above, the Company
desires
to indemnify, defend and hold harmless each and all of the
Indemnitees from and
against all damages,
losses, liabilities
and costs
that any
Indemnitee may incur as a result of an indemnification claim by
an Avantce
Indemnitee
pursuant to Article X
under the Purchase Agreement
on the
terms and conditions set forth herein;
NOW, THEREFORE,
in consideration of
the foregoing premises and for
other
good and valuable consideration, the parties hereto agree as
follows:
1. Indemnity of the
Indemnitees.
The Company
hereby agrees to indemnify,
defend and
hold harmless each of
the Indemnitees
to the fullest
extent
permitted
under Article X of the
Purchase Agreement
from and against all
damages,
losses, liabilities
and costs that any Indemnitee may incur as a
result of
an indemnification
claim by an Avantce
Indemnitee pursuant
to
Article X
under the Purchase Agreement (the "Damages").
2. Period of Indemnity. The indemnification obligations of the Company
contained
herein shall
continue for so long
as any Indemnitee may
be or
become
subject to any
indemnification claim
by an Avantce Indemnitee (or
any
threatened or filed action, suit or proceeding with respect
thereto)
pursuant
to Article X of the Purchase Agreement.
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3. Indemnification
Procedure.
(a) An Indemnitee
shall give the Company notice in writing in
accordance
with Section 8 of this
Agreement as soon as practicable of any
Damages
for which such Indemnitee seeks indemnification under this
Agreement.
(b) The payment for Damages to be made hereunder shall be
paid
by the
Company to any
Indemnitee, as
applicable, as soon as
practicable
but in any
event no later than ten (10) business days after written
demand
by such
Indemnitee therefor to the Company.
4. Agreement to Advance
Expenses; Conditions. The Company shall pay to
the
Indemnitees all fees,
costs and expenses
(the "Expenses") incurred in
connection
with any pending,
threatened or completed claim, action, suit,
arbitration or any other proceeding initiated by an Avantce Indemnitee
(a
"Proceeding"),
including a Proceeding
by or in the right of the Company,
in advance
(unless prohibited by applicable laws) of the final
disposition
of such
Proceeding. The
Indemnitees hereby
undertake to repay the amount
of
Expenses paid to the Indemnitees if it is finally determined by a
court
of
competent jurisdiction that the Indemnitees are not entitled under
this
Agreement
to, or are prohibited
by applicable law
from,
indemnification
with
respect to such Expenses. This undertaking is an unlimited
general
obligation
of the Indemnitees.
5. Counterparts.
This Agreement may be
executed in one or more counterparts,
each of
which shall be deemed an original, but all of which to
