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EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made as of July 9, 1998, by and between PC Flowers &
Gifts, Inc., a Delaware corporation (the "Corporation") and Xxxxxxx X. Xxxxx, an
individual (the "Executive").
WITNESSETH:
WHEREAS, the Corporation, the Executive and Fingerhut Companies, Inc., a
Minnesota corporation, have have entered into an Investor Subscription Agreement
dated the date hereof (the "Investment Agreement"); and
WHEREAS, in order to induce the Executive to enter into the Investment
Agreement and certain other agreements contemplated thereby the Corporation has
agreed to indemnify the Executive with respect to certain liabilities, as
hereinafter provided;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the parties hereto hereby agree as follows:
Section 1. Indemnification of the Executive by the Corporation.
The Corporation shall reimburse, indemnify and hold harmless the Executive
from, against and in respect of the following ("Claim(s)"): (i) any and all
damage, loss, liability, claim or deficiency resulting from, or which exists or
arises due to the purchase by the Executive or the Corporation of Common Stock
of the Corporation at any time subsequent to June 1, 1996; and (ii) any and all
actions, suits, claims, proceedings, investigations, audits, demands,
assessments, fines, judgments, costs and other expenses (including, without
limitation, reasonable audit and legal fees) resulting from the circumstances
described in clause (i).
Section 2. Method of Asserting Claims. The Executive will give prompt
written notice to the Corporation of any Claims which he discovers or of which
he receives notice after the date hereof and which might give rise to a Claim
stating the nature, basis and (to the extent known) amount thereof. In case of
any Claim arising from a suit by a third party or by any governmental body, or
any legal, administrative or arbitration proceeding with respect to which the
Corporation may have liability hereunder, the Corporation shall be entitled to
control the defense thereof upon giving of notice to the Executive of its intent
to do so. Each of the Corporation and the Executive will render to each other
such assistance as may reasonably be required of each other in order to insure
proper and adequate defense of any such suit or proceeding which may give rise
to a Claim.
Section 3. Notices. All notices, requests, other communications and
distributions to any party hereunder shall be in writing (including prepaid
overnight courier, telex, facsimile transmission or similar writing) and shall
be given to such party at its address or telecopy number set forth below or at
such other address or telecopy number as such party may hereafter specify for
the purpose by notice to the other parties.
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If to the Corporation:
PC Flowers & Gifts, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Executive:
Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
In each case with a copy to:
Fingerhut Companies, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Each such notice, request or other communication shall be effective (i) if given
by telex or telecopy, when such telex or telecopy is transmitted to the telex or
telecopy number specified on the signature pages hereof and the appropriate
answerback is received (in the case of telex) or telephonic confirmation of
receipt thereof is obtained (in the case of telecopy) or (ii) if given by mail,
prepaid overnight courier or any other means, when received at the address
specified on the signature pages hereof or when delivery at such address is
refused.
Section 4. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
Section 5. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Corporation and their respective successors and assigns.
Section 6. Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Corporation and
the Investor.
Section 7. Applicable Law. This Agreement shall be interpreted under the
internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
PC FLOWERS & GIFTS, INC.
By /s/ Xxxxxxx X. Xxxxx, President
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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