INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”)
is made and entered into as of November 18, 2008 between First
Blush, Inc., a Delaware corporation (the “Company”),
and Rose Hill
Gardens, LLC (“Indemnitor”).
WITNESSETH
THAT:
WHEREAS,
the Company is aware of loss contingencies related to claims by Xxxx Xxxxxxxx
against the Company (the “Claims”).
WHEREAS,
the Company and Indemnitor have agreed that, in the event that any of the Claims
are formally brought against the Company, Indemnitor will indemnify the Company
for any Expenses (as defined below) associated with such Claims.
NOW,
THEREFORE, in consideration of the Company’s purchase of the assets and
liabilities held by Indemnitor related to the business of the Company, the
parties hereto agree as follows:
1. Indemnity of
Company. Indemnitor hereby agrees to hold harmless and
indemnify the Company to the fullest extent permitted by law, as such may be
amended from time to time, if the Company shall be a party to or participant in
any Proceeding (as hereinafter defined) in connection with any of the Claims,
subject to the terms of this agreement. Provided Indemnitor has approved in
writing any and all costs and expenses presented to it in writing for
indemnification, the Company shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines, equity in the Company and
amounts paid in settlement actually and reasonably incurred by it, or on its
behalf, in connection with such Proceeding or any claim, subject to the terms of
this Agreement. The Company acknowledges and agrees that no binding settlement
of any claim or any Proceeding subject to this Agreement shall be entered into
by the Company with respect the Claims without Indemnitor’s prior written
consent in each instance.
2. Indemnification for Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that the Company is, in connection with any of the
Claims, a witness, or is made (or asked to) respond to discovery requests, in
any Proceeding to which the Company is not a party, the Company shall be
indemnified against all Expenses actually and reasonably incurred by it, or any
individual person representing it, in connection therewith.
3. Enforcement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
4. Definitions. For
purposes of this Agreement:
(a) “Expenses” shall include all
reasonable, third party, documented out of pocket outside attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding, or responding to, or objecting to, a request to
provide discovery in any Proceeding; provided, however, Indemnitor shall have
the right to approve in writing the selection of attorneys hired for such
matters and their respective terms of billing prior to such attorneys
being engaged to represent the Company with respect to any Claim, and the total
Expenses incurred or submitted for indemnification under this Agreement shall
not exceed $100,000 without the prior written consent of the
Indemnitor. Failure or refusal of Indemnitor to approve Expenses in
excess of $100,000 shall not be deemed a breach of this
Agreement. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding and any federal, state,
local or foreign taxes imposed on the Company as a result of the actual or
deemed receipt of any payments under this Agreement, including without
limitation the premium, security for, and other costs relating to any cost bond,
supersede as bond, or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by the Company or the
amount of judgments or fines against the Company.
(b) “Proceeding” includes any
threatened, pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether civil, criminal,
administrative or investigative, in which the Company was, is or will be
involved as a party or otherwise, in connection with the Claims.
5. Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision. Without
limiting the generality of the foregoing, this Agreement is intended to confer
upon Indemnitee indemnification rights to the fullest extent permitted by
applicable laws. In the event any provision hereof conflicts with any
applicable law, such provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such
conflict.
6. Modification and
Waiver. No supplement, modification, termination or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
7. Notice By the
Company. The Company agrees promptly to notify Indemnitor in
writing upon being served with or otherwise receiving any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify Indemnitor shall not relieve
Indemnitor of any obligation which it may have to the Company under this
Agreement or otherwise unless and only to the extent that such failure or delay
materially prejudices Indemnitor.
8. Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (c) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be
sent:
(a) To
Indemnitor at:
X.X. Xxx
0000
Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx
Xxxxxx
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(b)
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To
the Company at:
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X.X. Xxx
0000
Xxxxx
Xxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxxxxx
or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
9. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
10. Headings. The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
11. Governing Law and Consent to
Jurisdiction. This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in accordance with, the
laws of the State of California unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought
only in the Superior Court of the State of California (the “California
Court”), and not in any other state or federal court in the United States
of America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the California Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive any
objection to the laying of venue of any such action or proceeding in the
California Court, and (iv) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the California Court has been
brought in an improper or inconvenient forum.
SIGNATURE
PAGE TO FOLLOW
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
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INDEMNITOR
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By:
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/s/
Xxxxxxxx Xxxxxx
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Name:
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Xxxxxxxx
Xxxxxx
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Title:
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Managing
Member
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COMPANY
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By:
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/s/
Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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CEO
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