Exhibit 10.11
AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement (this "Agreement") is
entered into and effective as of July __, 2004 between Synetics Solutions Inc.,
an Oregon corporation (the "Company"), Yaskawa Electric Corporation ("YEC") and
Yaskawa Electric America, Inc. (together with YEC, the "Shareholders").
The Company intends to prepare and file with the Securities and Exchange
Commission a Registration Statement on Form S-1 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "1933 Act"), relating to
6,900,000 shares of common stock of the Company to be offered by the Company,
and in connection therewith, the Company intend to enter into an Underwriting
Agreement with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., ▇▇▇▇▇ Fargo Securities, LLC and
Nomura Securities International, Inc. that will be filed as an exhibit to the
Registration Statement (hereinafter referred to as the "Underwriting
Agreement").
Now, therefore, in consideration of the mutual covenants and conditions
contained herein, the Company and the Shareholders agree as follows:
1. The Company shall indemnify and hold harmless each Shareholder, the
officers, directors and shareholders of each Shareholder, and each person, if
any, who controls such Shareholder within the meaning of the 1933 Act, against
any losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
prospectus, or any amendment or supplement thereto, or any new registration
statement or prospectus, or in any marketing materials or information provided
to investors by, or with the approval of, the Company in connection with the
marketing of the offering of the shares of common stock of the Company,
including any roadshow or investor presentations made to investors by the
Company (whether in person or electronically), or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
(collectively, a "Violation"); and the Company will pay to each person intended
to be indemnified pursuant to this section 1(a), as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action, provided, however,
that the agreement contained in this section 1(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected by either Shareholder without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Shareholder, officer,
director or controlling person.
2. Promptly after receipt by an indemnified party under this Agreement of
notice of the commencement of any action (including any governmental action),
such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Agreement, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Agreement, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Agreement.
3. To the extent the indemnification provided for in this Agreement is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other hand, in connection with the Violation(s) that
resulted in such loss, claim, damage or liability, as well as any other relevant
equitable considerations; provided, however, that in no event shall any
contribution made by a Shareholder under this section 4 exceed the net proceeds
from the offering received by such Shareholder. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4. (A) This Agreement constitutes the entire agreement between the Company
and the Shareholders and supersedes all prior agreements and understandings,
oral and written, among the parties hereto with respect to the subject matter
hereof.
(B) This Agreement shall not be assignable by any of the parties hereto
without the prior written consent of each of the Company and each Shareholder.
(C) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, subject to the
restrictions on assignment contained in section 4(b). Nothing express or implied
in this Agreement is intended or shall be construed to confer upon or give to a
person, firm or corporation other than the parties hereto any rights or remedies
under or by reason of this Agreement or any transaction contemplated hereby.
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(D) Subject to applicable law, this Agreement may be amended, modified
and supplemented at any time by written agreement executed and delivered by the
duly authorized officers of each of the Company and each Shareholder.
(E) Any failure of the Company, on the one hand, or any of the
Shareholders, on the other hand, to comply with any obligation, covenant,
agreement or condition herein may be waived by the Shareholders, on the one
hand, or the Company, on the other hand, only by a written instrument signed by
the party or parties granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
(F) For the convenience of the parties hereto, this Agreement may be
executed in any number of counterparts, each such counterpart being deemed to be
an original instrument, and all such counterparts shall together constitute the
same agreement.
(G) This Agreement shall be governed by and construed in accordance with
the laws of the state of Oregon, exclusive of choice of law rules.
(H) Any term or provision of this Agreement which is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without rendering invalid,
illegal or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity, legality or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(I) If a dispute arises out of, or relates to, this Agreement, or the
breach thereof, and if the dispute cannot be settled through negotiation, the
parties agree first to attempt in good faith to settle the dispute by mediation
administered by the American Arbitration Association under its Commercial
Mediation Rules before resorting to litigation or any other type of dispute
resolution procedure.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SYNETICS SOLUTIONS INC.
By:
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Name:
Title:
YASKAWA ELECTRIC CORPORATION
By:
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Name:
Title:
YASKAWA ELECTRIC AMERICA, INC.
By:
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Name:
Title:
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