Indemnification Agreement - Gerard Klauer Mattison & Co. Inc., Entertainment Universe Inc. and Brad Greenspan
February 24, 1999
CONFIDENTIAL
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Gerard Klauer Mattison & Co., Inc.
529 Fifth Avenue
NewYork, NY 10017
Attention: Dominic A. Petito Senior Managing Director
Ladies and Gentlemen:
In connection with the engagement of Gerard Klauer Mattison & Co., Inc. ("Gerard
Klauer") by Entertainment Universe, Inc. and Brad Greenspan (collectively the
"Company"), as more fully set forth in the engagement agreement dated February
24, 1999 (the "Financial Services Agreement"), and further recognizing that
Gerard Klauer's, role is as agent, the Company agrees to indemnify and hold
harmless Gerard Klauer and its affiliates, the respective officers, directors,
agents, representatives and employees of each of the foregoing, and each other
person controlling Gerard Klauer or any of its affiliates, within the meaning of
either Section 15 of the Securities Act of 1933, as amended, or Section 20 of
the Securities Exchange Act of 1934, as amended (collectively, the "Indemnified
Parties"), from and against any losses, claims, damages, expenses and
liabilities (or actions in respect thereof), joint or several, relating to,
arising in any manner from, or based upon, any transaction contemplated by the
Financial Services Agreement or Gerard Klauer's engagement thereunder, as they
are incurred. The Company will also promptly reimburse any Indemnified Party
for all expenses (including the fees, disbursements and other charges of legal
counsel) as incurred in connection with the investigation of, preparation for or
defense of any pending or threatened claim relating to, arising in any manner
from, or based upon, any transaction contemplated by the Financial Services
Agreement or Gerard Klauer's engagement thereunder, or any investigation or
proceeding arising therefrom, whether or not such claim, investigation or
proceeding is brought or initiated by the Company or a third party.
Notwithstanding the foregoing, the Company shall not be liable hereunder for
any losses, claims, damages, liabilities or expenses to the extent the same are
determined, in a final judgment by a court having competent jurisdiction, to
have resulted primarily from the gross negligence or willful misconduct of an
Indemnified Party. The Company further agrees that no Indemnified Party shall
have any liability (whether direct or
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Gerard Klauer Mattison & Co., Inc.
February 24, 1999
Page 2
indirect, in contract or tort or otherwise) to the Company for or in connection
with Gerard Klauer's engagement under the Financial Services Agreement except
for the portion or share of any losses, claims, damages, liabilities or
expenses that a court of competent jurisdiction shall have determined by final
judgment resulted solely from the gross negligence or willful misconduct of
such Indemnified Party. In no event shall the Indemnified Parties' aggregate
liability to the Company exceed the fees actually received by Gerard Klauer
from the Company pursuant to the Financial Services Agreement unless there is a
final judicial determination of willful misconduct (as described in the prior
sentence) by an Indemnified Party.
The Company agrees that the indemnification and reimbursement obligations
set forth in this Agreement shall apply whether or not such Indemnified Party
is a formal party to any such claim, action, suit or proceeding. The Company
further agrees that it will not without the prior written consent of Gerard
Klauer, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not Gerard Klauer or any
Indemnified Party is a named party or potential party to such claim, action,
suit or proceeding) unless such settlement, compromise or consent includes the
unconditional release of Gerard Klauer and each other, Indemnified Party
hereunder from all liability I arising from such claim, action, suit or
proceeding.
If multiple claims are brought against Gerard Klauer an arbitration
proceeding, and indemnification is permitted under applicable law and is
provided for under this Agreement with respect to at least one such claim, the
Company agrees that any arbitration award shall be conclusively deemed to be
based on claims as to which indemnification is permitted and provided for,
except to the extent the arbitration award expressly states that the award, or
any portion thereof, is based solely on a claim as to which indemnification is
not available.
Promptly after receipt by an Indemnified Party of notice of its involvement
in any claim, action, suit, proceeding or investigation (a "Claim"), such
Indemnified Party shall, if a Claim in respect thereof is to be made against
the Company for indemnification, notify the Company in writing of such
involvement. Failure by such Indemnified Party to so notify the Company shall
not relieve the Company from its obligation to indemnify any Indemnified
Parties under this Agreement, except to the extent that such failure to notify
results in the forfeiture by the Company of substantive rights or defenses, and
shall not relieve the Company from its obligation to provide reimbursement and
contribution to the Indemnified Parties. If an Indemnified Party seeks
indemnification hereunder with respect to any Claim brought by a third party,
the Company shall be entitled to assume the defense of any such Claim with
counsel satisfactory to such Indemnified Party. Upon assumption by the Company
of the defense of any such Claim, such Indemnified Party shall have the right
to participate in the defense of such Claim and to retain its own
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Gerard Klauer Mattison & Co., Inc.
February 24, 1999
Page 3
counsel but the Company shall not be liable for any legal fees or expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof, unless (i) the Company has agreed to pay such fees and expenses, (ii)
the Company shall have failed to employ counsel satisfactory to such Indemnified
Party in a timely manner or (iii) such Indemnified Party shall have reasonably
determined that representation of such Indemnified Party by counsel provided by
the Company pursuant to the foregoing would be inappropriate due to actual or
potential conflicting interests between the Company and such Indemnified Party,
including, without limitation, situations in which there are one or more legal
defenses available to such Indemnified Party that are different from or
additional to those available to the Company. The Company shall not be liable
for any settlement of any Claim effected without its written consent (which
consent shall not be unreasonably withheld or delayed).
The Company agrees that, except as provided in the last sentence of this
paragraph, if any indemnification or reimbursement sought pursuant to this
Agreement were for any reason not to be available to any Indemnified Party or
were insufficient to hold it harmless, then the Company shall contribute to the
amount paid or payable by the Indemnified Party as a result of the losses,
claims, damages, liabilities and expenses in such proportion as is appropriate
to reflect the relative benefits to the Company on the one hand, and Gerard
Klauer on the other hand, in connection with any transaction to which such
indemnification or reimbursement relates. The Company and Gerard Klauer hereby
agree that the relative benefits to the Company on the one hand and Gerard
Klauer the other hand, with respect to Gerard Klauer's engagement, shall be
deemed to be in the same proportion as (i) the total amount or value paid or
proposed to be paid to the Company in connection with the transaction
contemplated by the Financial Services Agreement (before deducting expenses),
whether or not consummated, bear to (ii) the fees actually paid to Gerard Klauer
in connection With the transaction to which such contribution relates. If,
however, the allocation provided by the first sentence of this paragraph is not
permitted by applicable law, then the Company shall contribute to such amount
paid or payable by Gerard Klauer in such proportion as is appropriate to reflect
not only such relative benefits, but also the relative fault of the Company on
the one hand and Gerard Klauer on the other hand in connection with the matters
as to which such losses, claims, damages, liabilities or expenses relate and
other equitable considerations. In no event shall the aggregate amount payable
by the Indemnified Parties exceed the amount of fees actually received by Gerard
Klauer pursuant to the Financial Services Agreement (excluding any amounts
received as reimbursement of expenses incurred by Gerard Klauer.) The parties
hereby agree that it would not be just or equitable if the contribution governed
by this paragraph were determined by pro rata allocation or any other method
that does not take into account the considerations taken into account by this
paragraph. Notwithstanding the foregoing, the Company shall not be liable for
any losses, claims, damages, liabilities or expenses to the extent the same are
determined, in a final judgment by a court having competent jurisdiction, to
have resulted primarily from
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Gerard Klauer Mattison & Co., Inc.
February 24, 1999
Page 4
the gross negligence or willful misconduct of an Indemnified Party or from a
breach on the part of Gerard Klauer under the Financial Services Agreement.
The rights accorded to Indemnified Parties hereunder shall be in addition to
any rights that any Indemnified Parties may have at common law, by separate
agreement or otherwise, and shall be binding upon and inure to the benefit of
any successors, heirs and personal representatives of the Company or any
Indemnified Party, as the case may be.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY IN SUCH STATE. Any controversy arising between the parties hereto, or
any person claiming under either of them, relating to this Agreement or the
performance or breach thereof, shall be settled and determined by arbitration in
New York, New York, before a single arbitrator in accordance with the commercial
arbitration rules of the American Arbitration Association and the provisions of
the New York Code of Civil Procedure governing such arbitrations, and judgment
upon the reward rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The Company and Gerard Klauer each hereby irrevocably
waives any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified except by an instrument
signed by both the Company and Gerard Klauer.. If any provision hereof shall be
determined to be invalid or unenforceable in any respect, such determination
shall not affect such provision in any other respect or any other provision of
this Agreement, which shall remain in full force and effect. If there are more
indemnitors than one hereunder, each indemnifying person agrees that its
liabilities hereunder shall be joint and several.
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Gerard Klauer Mattison & Co., Inc.
February 24, 1999
Page 5
This Agreement, and the indemnification, reimbursement and contribution
obligations hereunder, shall remain operative and in full force and effect,
notwithstanding (i) any withdrawal, termination or consummation of or failure to
initiate or consummate any transaction referred to in the Financial Service
Agreement, (ii) any investigation made by or on behalf of any Indemnified Party
or (iii) any termination, completion or expiration of the Financial Services
Agreement or Gerard Klauer's engagement thereunder.
Very truly yours,
ENTERTAINMENT UNIVERSE, INC.
By________________________________
Name: Brad Greenspan
Title: President
__________________________________
Brad Greenspan
Acknowledged and Agreed to
GERARD KLAUER MATTISON & CO., INC.
By_________________________________
Name: Dominic A. Petito
Title: Senior Managing Director