INDEMNIFICATION AND STOCK OPTION AGREEMENT
Exhibit
10.4
INDEMNIFICATION
AND STOCK OPTION AGREEMENT
THIS
AGREEMENT (the "Agreement")
is made and entered into as of March 1, 2009 by and among Lumea, Inc., a Nevada
corporation ("Lumea"),
EMTA Holdings, Inc., a Nevada corporation ("EMTA") and ▇▇▇▇▇ ▇▇▇▇▇ ("Indemnitee").
RECITALS
Lumea and
EMTA are parties to an Asset Purchase Agreement dated as of the date of this
Agreement (the "Asset Purchase
Agreement") by and among Lumea, EMTA, Easy Staffing Services, Inc., a
Delaware corporation ("Easy"), and Easy's subsidiaries ESSI, Inc., a Delaware
corporation ("ESSI"), and Easy
Staffing Solutions, Inc., an Illinois corporation f/k/a ▇▇▇▇▇▇ Placement
Services, Inc. ("▇▇▇▇▇▇").
Indemnitee
is a personal guarantor on various obligations of each of Easy, ESSI and ▇▇▇▇▇▇.
Pursuant to the Asset Purchase Agreement, Lumea assumed some, but not all, of
the liabilities of Easy, ESSI and ▇▇▇▇▇▇ as part of its acquisition of the
assets of each company. Under the Asset Purchase Agreement, Lumea will issue to
Easy a Promissory Note in an amount substantially equal to the non-assumed
liabilities (the "Promissory
Note").
Lumea and
EMTA agreed to indemnify Indemnitee from and against certain liabilities arising
out of the transactions contemplated by the Asset Purchase Agreement, as well as
continuation of various personal guarantees provided by Indemnitee, and to grant
to Indemnitee an option to purchase shares of common stock of EMTA while the
Promissory Note remains unpaid and the personal guarantees exist.
AGREEMENT
1.
Indemnification.
1.1.
Lumea and EMTA, jointly and severally (referred to as the "Indemnitor") shall defend,
indemnify and hold Indemnitee harmless from and against all claims, liabilities,
costs and expenses (including, but not limited to, those related to death or
personal injury) arising from or connected with Lumea's failure to timely pay
when due, or perform, any of the debts or obligations arising out of the Assumed
Liabilities or the Contracts assigned to Lumea under the Asset Purchase
Agreement.
1.2.
Indemnifiable
Loss. An Indemnifiable Loss means the aggregate of Losses and Litigation
Expenses where:
(i) "Losses"
means any liability, loss, claim, settlement payment, cost and expense,
interest, award, judgment, damages (including punitive damages to the extent
permitted by applicable law), diminution in value, fines, fees and penalties or
other charge, other than a Litigation Expense; and
(ii)
"Litigation Expense" means any court filing fee, court cost, arbitration fee or
cost, witness fee, and each other fee and cost of investigating and defending or
asserting any claim for indemnification under this Agreement, including, without
limitation, in each case, attorney's fees, and other professional's fees, and
disbursements.
1.3. Claims Procedure. All
claims for indemnification of Indemnitee to Indemnitor to provide shall be
asserted and resolved as follows:
(i) In
the event that any claim or demand for which Indemnitor would be liable to
Indemnitee hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify Indemnitor in
writing of such claim or demand, specifying the nature of such claim or demand
and the amount or the estimated amount thereof to the extent then feasible
(which estimate shall not be conclusive of the final amount of such claim or
demand) (collectively the "Claim Notice").
Indemnitor shall notify Indemnitee promptly (A) whether or not Indemnitor
disputes the liability of Indemnitor to Indemnitee hereunder with respect to
such claim or demand and (B)
whether or not Indemnitor desires, at the sole cost and expense of
Indemnitor, to defend Indemnitee against such claim or demand. Subject to
Section 1.3(ii) below, in the event that Indemnitor notifies Indemnitee that
Indemnitor will defend Indemnitee against such claim or demand, Indemnitor shall
have the right to defend by appropriate proceedings, provided that Indemnitor
and its counsel (which counsel must be approved by Indemnitee, such approval not
to be unreasonably withheld) shall proceed with diligence and good faith with
respect thereto. If Indemnitee desires to participate in, but not control, any
such defense or settlement, Indemnitee may do so at its sole cost and expense.
Indemnitor shall not settle such claim or demand without prior reasonable
consultation with Indemnitee and without the prior written consent of Indemnitee
(which consent shall not be unreasonably withheld).
(ii) If,
in the reasonable opinion of Indemnitee, notice of which shall be given in
writing to Indemnitor, (A) any such claim or demand described in Section 1.3(i)
above seeks material prospective relief which could have a material adverse
effect on the assets, liabilities, financial condition, results of operations,
public image, business or business prospects of Indemnitee, or (B) Indemnitee
reasonably determines in good faith that its interests with respect to such
claim or demand cannot appropriately be represented by Indemnitor, then
Indemnitee shall have the right to assume control of the defense of such claim
or demand and the amount of any judgment or settlement together with the
reasonable costs and expenses of defense shall be included as part of the
indemnification obligations of Indemnitor hereunder; provided, however,
that no settlement of such claim or demand may be made without prior
reasonable consultation with Indemnitor and without the prior written consent of
Indemnitor (which consent shall not be unreasonably withheld). If Indemnitee
should elect to exercise the right under this Section, Indemnitor shall have the
right to participate in, but not control, the defense of such claim or demand at
the sole cost and expense of Indemnitor.
(iii) Regardless
of which party is controlling the defense of any claim, (A) both Indemnitor and
Indemnitee shall act in good faith, (B) the controlling party shall
deliver, or cause to be delivered, to the other party, copies of all
correspondence, studies, reports, pleadings, motions, briefs, appeals or other
written statements relating to or submitted in connection with the third-party
claim or demand and with the defense of any such claim or demand, and timely
notices of, and the right to participate in (as an observer), any hearing or
other court proceeding relating to such claim or demand, and (C) the other party
shall cooperate fully with the controlling party with respect to access to
individuals, books, records, or other documentation within such other party's
direct or indirect control, if deemed necessary or appropriate by the
controlling party in the defense of any claim or demand.
(iv) If
Indemnitor does not elect under Section 1.3(i) above to defend Indemnitee, or if
Indemnitor elects to defend Indemnitee but does not proceed with diligence and
in good faith, then Indemnitee shall have the right to take over control of any
defense and settlement of such claim or demand (and shall, so long as any legal
rights are not jeopardized, notify Indemnitor not less than ten (10) days in
advance of the reasons for the defense being taken over), and the reasonable
costs and expenses of defense shall be included as part of the indemnification
obligations of Indemnitor hereunder.
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2.
Option to
Purchase EMTA Shares for Continuing Personal Guarantees and Promissory
Note.
2.1.
Option. Subject to the terms and conditions
hereinafter set forth, EMTA grants to the Indemnitee the right and option (the
"Option")
to purchase from EMTA all
or any part of an aggregate number of 2,500,000 shares of common stock,
authorized but unissued or, at the option of EMTA, treasury stock if available
(the "Optioned
Shares").
2.2.
Vesting.
Subject to the last sentence of this Section, the Option will vest in equal
amounts of 150,000 on the last day of each calendar quarter over the five year
period commencing on the date of this Agreement. For clarification, the Option
may be exercised to purchase the first 150,000 Optioned Shares on or after June
30, 2009. Notwithstanding the foregoing, on and after the date on which (i) all
Obligations under the Promissory Note have been fully and finally paid, and (ii)
all of the Personal Guarantees of Indemnitee have been released, where "Personal
Guarantees" means ▇▇▇▇▇ ▇▇▇▇▇'▇ personal guarantee of any of the debts or
obligations arising out of the Assumed Liabilities or the contracts assigned to
Lumea under the Asset Purchase Agreement, all vesting will cease.
2.3.
Exercise Of
Option. Subject to the terms and conditions of this Agreement, the Option
may be exercised by completing and signing a written notice in substantially the
following form: "I hereby exercise the Option granted to me by
__________________________, and elect to purchase ________ shares of common
stock of
by _____________________, for the purchase price to be determined under
Paragraph 2.4 of the Stock Option Agreement dated the
________ day
of _______________________." (each an "Option
Notice").
2.4.
Purchase Price.
The price to be paid for the Optioned Shares (the "Purchase
Price") shall be equal to Eighty Percent (80%) of the average closing
price of shares of common stock of EMTA over the twenty (20) trading days prior
to the date of this Agreement.
2.5.
Payment Of Purchase
Price. Payment of the Purchase Price may be made as follows:
(i)
In United States dollars in cash or by check, bank draft or money order payable
to EMTA; or
(ii) At
the discretion of the Board of Directors (the "Board"),
through the delivery of shares of common stock with an aggregate fair
market value at the date of such delivery, equal to the Purchase Price;
or
(iii) By
a combination of both (a) and (b) above; or
(iv) In
the manner provided in paragraph 2.6 below.
The Board
shall determine acceptable methods for tendering common stock as payment upon
exercise of an Option and may impose such limitations and conditions on the use
of common stock to exercise an Option as it deems appropriate.
2.6.
Loans or
Guarantees. The Board may, in its absolute discretion and without any
obligation to do so, assist Indemnitee in the exercise of this Option
by:
(i)
authorizing the extension of a loan of Indemnitee from EMTA; or
(ii) authorizing
a guaranty by EMTA of a third-party loan to Indemnitee.
The terms
of any loan, installment, method of payment or guaranty (including the interest
rate and terms of repayment) shall be established by the Board, in its sole
discretion.
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2.7. Termination Of
Option. Except as otherwise provided herein, the Option, to the extent
not heretofore exercised, shall terminate on the eighth (e) anniversary date of
this Agreement.
2.8. Adjustments. In the
event of any stock split, reverse stock split, stock dividend, combination or
reclassification of shares of common stock or any other increase or decrease in
the number of issued shares of common stock, the number and kind of Optioned
Shares and the Purchase Price per share shall be proportionately and
appropriately adjusted without any change in the aggregate Purchase Price to be
paid therefor upon exercise of the Option.
3.
Miscellaneous
Provisions.
3.1. Assignment;
Delegation. No party may assign any of its rights under this Agreement,
or delegate any performance under this Agreement, in whole or in part, whether
they are voluntary, involuntary, by merger, consolidation, dissolution,
operation of law, or any other manner, except with the prior written consent of
the other party, which consent may be withheld for any reason or no reason. For
purpose of this Section: (i) a change of control or a change of ownership is
deemed an assignment of rights; and (ii) "merger" refers to any merger in which
a party participates, regardless of whether it is the surviving or disappearing
corporation. Any purported assignment of rights or delegation of performance in
violation of this Section is null and void.
3.2. Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors, heirs, representatives
and assigns, as the case may be; provided, however, that no party shall assign
or delegate this Agreement or any of the rights or obligations created hereunder
without the prior written consent of the other party. This Agreement shall not
confer upon any person not a party to this Agreement, or the legal
representative of such person any rights or remedies of any nature or kind
whatsoever under or by reason of this Agreement.
3.3. Expenses. Except as
otherwise expressly provided in this Agreement, the parties hereto shall bear
their respective expenses incurred in connection with the preparation, execution
and performance of this Agreement and the transactions contemplated hereby,
including, without limitation, all fees and expenses of agents, representatives,
counsel and accountants.
3.4. Notices. All notices
and other communications given or made pursuant hereto shall be in writing and
shall be deemed to have been given or made, if delivered personally or
transmitted by telex, telecopy or telegram, on the date so delivered or
transmitted, if sent by Federal Express or other reputable national overnight
carrier, on the next business day after the date so sent, or if mailed by
registered or certified mail
(postage prepaid, return receipt requested), on the fifth business day after the
date so mailed, to the parties at the following addresses.
if to Sellers,
to: ▇▇▇▇▇
▇▇▇▇▇
________________________
________________________
if to Lumea or
ETMA: ETMA Holdings,
Inc.
Lumea, Inc
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other persons or at such other addresses as shall be
furnished by any party by like notice to the other, and such notice or
communication shall be deemed to have been given or made as of the date so delivered
or transmitted, on the next business day after the date so sent by overnight
courier or on the fifth business day after the date so mailed.
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3.5. Entire Agreement.
This Agreement, together with the Annexes and Exhibits attached hereto,
represents the entire agreement and understanding of the parties hereto with
reference to the transactions set forth herein, and no representations,
warranties or covenants have been made in connection with this Agreement, either
express or implied, other than those expressly set forth herein, in the Annexes
or in the certificates, agreements and other documents delivered in connection
with the transactions contemplated hereby. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement
and all prior drafts of this Agreement, all of which are merged into this
Agreement.
3.6. Third Parties. No
term or provision of this Agreement is for the benefit of any person who is not
a party hereto, and no such party will have any right or cause of action
hereunder.
3.7. Waivers, Amendments and
Remedies. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by Sellers and Lumea or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor shall any waiver on
the. part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or
privilege.
3.8. Section Headings. The
Section headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this Agreement
or of any term or provision hereof.
3.9. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement.
3.10. Facsimile and Electronic
Signatures. Signatures received via facsimile or other electronic means,
including in a digitally produced format (.tif, .pdf, .doc, .gif., etc.), will
be deemed originals, unless otherwise expressly set forth in a clear and
conspicuous manner elsewhere on the page or file that contains the facsimile or
electronic signature.
3.11. Enforcement Costs. If
either party institutes an action or proceeding to enforce any rights arising
under this Agreement, the party prevailing in such action or proceeding will be
paid all reasonable attorneys' fees and costs to enforce such rights by the
other party, such fees and costs to be set by the court, not by a jury, and to
be included in the judgment entered in such proceeding.
3.12. Governing Law. This
Agreement is made in and shall be governed by and construed in accordance with
the laws of the State of Arizona without giving effect to the principles of
conflicts of law thereof.
3.13. Annexes, Exhibits and
Schedules. The Annexes, Exhibits and Schedules attached hereto are a part
of this Agreement as if fully set forth herein. All references herein to
Sections, Clauses, Annexes, Exhibits and Schedules shall be deemed references to
such parts of this Agreement, unless the context shall otherwise require. Any
description or disclosure set forth in any attachment hereto shall be deemed
incorporated in all other attachments hereto to the extent
applicable.
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IN
WITNESS WHEREOF, Lumea, EMTA and Indemnitee have caused this Agreement to be
duly executed as of the 10th day of
March, 2009.
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LUMEA,
INC.,
a Nevada corporation
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INDEMNITEE
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President | ▇▇▇▇▇ ▇▇▇▇▇ | ||||
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a Nevada
corporation
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By:
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/s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President | |||||
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