Exhibit 10.16
TAX INDEMNITY AGREEMENT
This Agreement is made the 24th day of December, 1996 by and between
MICROVISION MEDICAL SYSTEMS, INC., a Delaware corporation ("Borrower", jointly
and severally if more than one) and ▇▇▇▇▇▇▇ Bank, N.A. ("Bank").
WHEREAS Bank is making, renewing, substituting, consolidating or modifying
a $3,000,000.00 loan dated December 24, 1996 ("Loan"), executed by Borrower,
upon which State of Florida documentary stamp tax and/or non-recurring
intangible taxes (jointly and severally, the "Taxes") may or may not be due,
same dependant upon the structure of the loan, and
WHEREAS, Borrower is of the opinion that the Loan may not be subject to the
Taxes and has requested that Bank not collect, withhold nor pay the Taxes, and
WHEREAS, Borrower has been informed by Bank that non-payment of the Taxes
may create a potential liability to Bank in the event that nay claims are
brought against Bank by reason of non-payment of the Taxes;
THEREFORE, Bank has requested, and Borrower has agreed to give, this
Agreement with the Borrower indemnifying the Bank as follows:
1. Borrower assumes the risk of all damage, loss, cost and expense,
(including interest and penalties, if any), and agrees to indemnify and hold
harmless Bank, its directors, officers, agents and employees from and against
any and all liability, damage, loss, cost, expense or reasonable attorney fees
which may accrue to or be sustained by Bank, its directors, officers, agents or
employees on account of or arising from any claim of action raised by, filed or
brought by or in the name of any State of Florida Governmental or Administrative
Department with respect to non-payment of the Taxes against Bank, its directors,
officers, agents or employees in connection with the Loan.
2. Borrower agrees to pay Bank against any claim brought or action filed
against Bank with respect to the subject of this indemnity contained herein,
whether such claim or action is rightfully or wrongfully brought or filed.
3. Bank shall use its best efforts to give written notice to Borrower of
any claim or action which Bank is to indemnified against herein in a timely
manner after written notice of such claim or action is received by Bank, by
sending notification via certified or registered mail, postage prepaid, return
receipt requested or overnight courier to Borrower at its billing address shown
on Bank's billing system, Bank shall also request from entity seeking said
demand or inquiry that the demand or inquiry be in writing and sent to Bank, but
is not responsible for non-compliance with its request. Additionally, Borrower
shall give
immediate notice to Bank if Borrower receives any notice of any possible or
actual claim or action.
4. In case a claim should be brought or action filed with respect to the
subject of indemnity herein, Borrower agrees that Bank may employ attorneys of
its own selection to appear and defend the claim or action on behalf of Bank, at
the expense of Borrower, Bank at its option shall have authority for the
direction of the defense, and shall be the judge of the acceptability of any
compromise or settlement or any claims or actions against Bank, however,
Borrower has right to be advised of any compromises or settlements and upon
request to the Bank, to be joined in the lawsuit as a party defendant, therefore
allowing the Borrower to assert its own defenses.
5. Indemnities and obligations provided for herein shall continue in full
force and effect notwithstanding the expiration or termination of the Loan for
any reason whatsoever. Nothing in this Agreement or otherwise shall authorize
any of the parties hereto or any other person or entity to act so as to incur or
impose any liability or obligation for or on behalf of the others.
6. It is further understood and agreed by the parties hereto that if any
of the provisions hereof shall contravene, or be invalid under the laws of the
State of Florida or any county or jurisdiction where used, such contravention or
invalidity shall not invalidate this agreement but shall be construed as if not
containing the particular provision or provisions held to be invalid, and the
rights of the obligations of the parties hereto shall be construed and enforced
accordingly.
7. Each party agrees to execute and deliver or cause to be executed and
delivered, all such instruments, certificates and documents, and to take all
such other actions, as the other party to this Agreement may reasonably request
from time to time to effectuate the purpose and intent of this Agreement.
8. The failure of the Bank to insist in any one or more instances upon
performance of any of the provisions of this Agreement or to take advantage of
any of its rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of nay such rights, and the same shall continue
and remain in full force and effect. No single or partial exercise by Bank of
any right or remedy shall preclude other or further exercise hereof or the
exercise of any other right or remedy, Waiver by Bank of any breach of any
provision of this Agreement shall not constitute or be construed as a continuing
waiver or as a waiver of any other breach of any other provision of this
Agreement.
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9. This Agreement contains the entire agreement between the parties with
respect to the matters contemplated herein and supersedes and cancels all prior
agreements between them whether oral, written or implied. No modifications,
amendments or waivers of this Agreement, or any of its provisions shall be
binding on any party unless evidenced by a written instrument duly executed by
the parties.
The undersigned have executed this Indemnity Agreement on the day and year
first appearing.
▇▇▇▇▇▇▇ BANK, N.A. BORROWERS:
By: Illegible MICROVISION MEDICAL
-------------------------- SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
President
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(Title)
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STATE OF California
COUNTY OF Orange
The foregoing was acknowledged before me this 24th day of December, 1996 by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ as President of MICROVISION MEDICAL SYSTEMS, INC., a
Delaware corporation, on behalf of said corporation, who is personally known to
me or who provided valid Cal. Driver's license as identification and who did
take an oath.
My Commission expires: 11/19/96 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
▇▇▇▇ ▇. ▇▇▇▇▇▇
Commission # 1077821
Notary Public - California
Orange County
My Comm. Expires Nov. 19, 1999
