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TO: Credit Suisse First Boston Corporation TO:
Xxxxxx Xxxxxxx Xxxxxx XXXX 00,
0000 Xxx Xxxx, Xxx Xxxx 00000-3629
In connection with your engagement (the "engagement") to advise and
assist us with the matters described in that separate letter agreement between
you and us, dated the date here of, we agree to indemnify and hold harmless
CREDIT SUISSE FIRST BOSTON CORPORATION ("CSFB" or "you") and its affiliates,
the respective directors, officers, partners, agents and employees of CSFB and
its affiliates, and each other person, if any, controlling CSFB or any of its
affiliates (collectively, "Indemnified Persons"), from and against, and we
agree that no Indemnified Person shall have any liability to us or our owners,
parents, affiliates, security holders or creditors for, any losses, claims,
damages or liabilities (including actions or proceedings in respect thereof)
(collectively "Losses") (A) related to or arising out of (i) our actions or
failures to act (including statements or omissions made, or information
provided, by us or our agents) or (ii) actions or failures to act by an
Indemnified Person with our consent or in reliance on our actions or failures
to act, or (B) otherwise related to or arising out of the engagement or your
performance thereof, bad faith, willful misconduct or gross negligence. If
such indemnification is for any reason not available or insufficient to hold
you harmless, we agree to contribute to the Losses involved in such proportion
as is appropriate to reflect the relative benefits received (or anticipated to
be received) by us and by you with respect to the engagement or, if such
allocation is judicially determined unavailable, in such proportion as is
appropriate to reflect other equitable considerations such as the relative
fault of us on the one hand and of you on the other hand; provided, however,
that, to the extent permitted by applicable law, the Indemnified Persons shall
not be responsible for amounts which in the aggregate are in excess of the
amount of all fees actually received by you from us in connection with the
engagement. Relative benefits to us, on the one hand, and you, on the other
hand, with respect to the engagement shall be deemed to be in the same
proportion as (i) the total value paid or proposed to be paid or received or
proposed to be received by us or our security holders, as the case may be,
pursuant to the transaction(s), whether or not consummated, contemplated by the
engagement bears to (ii) all fees actually received by you in connection with
the engagement.
We will reimburse each Indemnified Person for all expenses (including
without limitation reasonable fees and disbursements of counsel and expenses
incurred in connection with preparing for and responding to third party
subpoenas) as they are incurred by such Indemnified Person in connection with
investigating, preparing for or defending any action, claim, investigation,
inquiry, arbitration or other proceeding ("Action") referred to above (or
enforcing this agreement or any related engagement agreement), whether or not
in connection with pending or threatened litigation in which any Indemnified
Person is a party, and whether or not such Action is initiated or brought by
you. We further agree that we will not settle or compromise or consent to the
entry of any judgment in any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not an Indemnified Person
is a party therein) unless we have given you reasonable prior written notice
thereof and used all reasonable efforts, after consultation with you, to obtain
an unconditional release of each Indemnified Person from all liability arising
therefrom. You agree that you will not settle or compromise or consent to the
entry of any judgment in any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not an Indemnified Person
is a party therein) without our consent (which consent will not be unreasonably
withheld). In the event we are considering entering into one or a series of
transactions involving a merger or other business combination or a dissolution
or liquidation of all or a significant portion of our assets, we shall promptly
notify you in writing. If requested by CSFB, we shall then establish
alternative means of providing for our obligations set forth herein on terms
and conditions reasonably satisfactory to CSFB.
If multiple claims are brought against you in any Action with respect to
at least one of which indemnification is permitted under applicable law and
provided for under this agreement, we agree that any judgment, arbitration
award or other monetary award shall be conclusively deemed to be based on
claims as to which indemnification is permitted and provided for. Our
obligations hereunder shall be in addition to any rights that any Indemnified
Person may have at common law or otherwise. Solely for the purpose of
enforcing this agreement, we hereby consent to personal jurisdiction and to
service and venue in any court in which any claim which is subject to this
agreement is brought by or against any Indemnified Person. We acknowledge that
in connection with the engagement you are acting as an independent contractor
with duties owing solely to us. YOU HEREBY AGREE, AND WE HEREBY AGREE ON OUR
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF OUR
SECURITY HOLDERS, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT OF THE ENGAGEMENT, YOUR PERFORMANCE
THEREOF OR THIS AGREEMENT.
The provisions of this agreement shall apply to the engagement
(including related activities prior to the date hereof) and any modification
thereof and shall remain in full force and effect regardless of the completion
or termination of the engagement. This agreement and any other agreements
relating to the engagement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of law
principles.
Very truly yours,
XXXX MEDIA GROUP, INC.
Accepted and agreed to as of
the date hereof: By: /s/ XXXXXX X. XXXXX
---------------------------------
CREDIT SUISSE FIRST BOSTON Xxxxxx Xxxxx
CORPORATION Title: President and Chief Executive
Officer
By: /s/ XXXXX XXXXXX
----------------------------
Xxxxx Xxxxxx
Title: Managing Director
