**Exhibit 10.23**

 

To:                              Change in Control Buyers(Exhibit A hereto)

 

Re:                               Share PurchaseAgreements (the “Agreements”) between David C. Merrell and certain other stockholdersof Two Moons Kachinas Corp., a Nevada corporation (respectively, “Two Moons”and the “Selling Stockholders”) and certain purchasers of such common stock of(respectively, the “Change in Control Buyers” and the “Change in ControlTransaction” [as defined in the Agreements])

 

Gentlemen:

 

In partial consideration of the Agreements and the Change in ControlTransaction and the Reorganization Transaction, and for the additional sumsoutlined in Exhibit A that is attached hereto and incorporated herein byreference, David C. Merrell (“Merrell”) agrees to pay and indemnify and holdthe Change in Control Buyers (as defined in the Share Purchase Agreements)harmless from and against any and all claims or past liabilities of any type ornature whatsoever of Two Moons existing or arising before the Closing of theAgreements and the Change in Control Transaction and the ReorganizationTransaction (as defined in the Share Purchase Agreements), while representingthat the information contained in the reports and/or registration statements ofTwo Moons that have been filed with the Securities and Exchange Commission (the“SEC Reports”) is true and correct in every material respect and do not containany misstatement of a material fact or omit to state a material fact requiredor necessary to be stated therein that would make the statements made thereinnot misleading:

 

1.                                       Merrell herebyagrees pay and to indemnify and hold the Change in Control Buyers, theirofficers, directors, employees and agents and each person, if any, who controlsthem within the meaning of Section 15 of the Securities Act of 1933, asamended (the “Securities Act”) or Section 20 of the Securities ExchangeAct of 1934, as amended (the “Exchange Act”), and, following the closing of theAgreements and the Change in Control Transaction, and the ReorganizationTransaction, harmless from and against any and all past claims or liabilitiesof any type or nature whatsoever of Two Moons existing or arising prior to orat such closing, which includes all expenses of Two Moons related to theAgreements and the Change in Control Transaction and the ReorganizationTransaction, and compromise and settlement of any amounts due and owing toMerrell for advances or otherwise that were incurred by Two Moons in thisrespect prior to the Closing; provided, however, such payment andindemnification shall include the payment of all pre-closing cash resources ofTwo Moons to Merrell, and the sale of all inventory of products to Merrell aspartial consideration of such payment and indemnification

 

2.                                       In case anyaction shall be commenced involving any person in respect of which indemnitymay be sought pursuant hereto (the “Indemnified Party”), the Indemnified Partyshall promptly notify the person against whom such indemnity may be sought (the“Indemnifying Party”) in writing.  Adelay in

 

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giving notice shall only relieve theIndemnifying Party of liability to the extent the Indemnifying Party suffersactual prejudice because of the delay.  TheIndemnifying Party shall have the right, at its option and expense, toparticipate in the defense of such a proceeding or claim, but not to controlthe defense, negotiation or settlement thereof, which control shall at alltimes rest with the Indemnified Party.  Theparties hereto agree to cooperate fully with each other in connection with thedefense, negotiation or settlement of any such proceeding or claim.

 

3.                                       The partiesagree that all of the representations and warranties contained herein shallsurvive the Closing and continue to be binding regardless of any investigationmade at any time by any party.

 

4.                                       At any time, andfrom time to time, each party will execute such additional instruments and takesuch action as may be reasonably requested by the other party to carry out theintent and purposes of this Agreement.

 

5.                                       Any failure onthe part of any party hereto to comply with any of its obligations, agreementsor conditions hereunder may be waived in writing by the party to whom suchcompliance is owed.

 

6.                                       All notices andother communications hereunder shall be in writing and shall be deemed to havebeen given if delivered in person or sent by prepaid first-class registered orcertified mail, return receipt requested, as follows:

 
| If to  Merrell:             |   | 9005 Cobble  Canyon Lane  Sandy, Utah 84093                     |
|-----------------------------|--------|-----------------------------------------------------------------|
|                        |   |                                                            |
| If to  Indemnified Parties: |   |                                                            |
|                        |   |                                                            |
|                        |   | To their  respective addresses in the Share Purchase Agreements |
|                        |   |                                                            |
| If to Two  Moons:           |   | 9005 Cobble  Canyon lane  Sandy, Utah 84093                     |

 

7.                                       This Agreementconstitutes the entire agreement between the parties and supersedes and cancelsany other agreement, representation or communication, whether oral or written,between the parties hereto relating to the transaction contemplated herein orthe subject matter hereof.

 

8.                                       This Agreementshall be governed by and construed and enforced in accordance with the laws ofthe State of Utah, without giving effect to principles of conflicts of laws;and any action brought to enforce the terms

 

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and provisions of this Agreement or otherwiserelated to this Agreement shall be brought only in the state and federal courtssituated in Salt Lake County, Utah.

 

9.                                       This Agreementshall inure to the benefit of, and be binding upon, the parties hereto and theirsuccessors and assigns.

 

10.                                 This Agreement may beexecuted simultaneously in two or more counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the sameinstrument.

 

11.                                 In the event ofdefault hereunder by either party, the non-defaulting party in any proceedingto enforce this Agreement shall be entitled to recover attorney’s fees andcosts and such other damages as may have been caused by the default of thedefaulting party.

 

 
| Dated: | l2-31-04 |   | /s/ David C.  Merrell |   |
|--------|----------|--------|-----------------------|--------|
|   |     |   | David C.  Merrell     |

 

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