1
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
April 26, 2000
CONFIDENTIAL
NetRadio Corporation
Riverplace Exposition Hall
00 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Chief Executive Officer and President
Ladies and Gentlemen:
This letter agreement (the "Agreement") will confirm the understanding
between NetRadio Corporation, a Minnesota corporation (the "Company"), and
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc. ("GKM"), pursuant to which the Company has
retained GKM to render financial advisory services to the Company as described
below.
1. Retention. Subject to Section 2(e) hereof, the Company hereby retains
GKM and, GKM agrees to act, as the exclusive financial advisor to the Company
in connection with the issuance of debt or equity securities of the Company
(the "Securities") to a strategic or financial partner or other institution or
party (a "Purchaser"), the formation of a joint venture between the Company and
any Purchaser, and any Business Combination (as defined below) (each and
collectively, a "Transaction"), during the term of this Agreement. GKM will
assist in analyzing, structuring, negotiating and effecting the Transaction, as
more fully described below. As appropriate, GKM will:
(a) advise the Company with respect to the structure, terms and
timing of the Transaction;
(b) assist the Company in preparing the required Transaction
documents (including a letter intent and definitive agreement) to the extent
such documents relate to the terms of the Transaction or the terms of
securities being offered in the Transaction; and
(c) render such other financial advisory services as may from time to
time be agreed upon by the Company and GKM, including, if so requested by
2
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
NetRadio Corporation
April 26, 2000
Page 2
the Company, the rendering of an opinion (an "Opinion") as to the fairness of
a Transaction from a financial standpoint to the Company's stockholders.
It is understood that GKM is being engaged hereunder solely
to provide the services described in this Section 1 to the Company, and that
GKM is not acting as an agent or fiduciary of, and shall have no duties or
liability to, the equity holders of the Company or any other third party in
connection with its engagement hereunder.
2. Compensation. As compensation for GKM's services
hereunder, the Company shall pay GKM the fees set forth hereto:
(a) A retainer fee of $100,000, of which $50,000 will
be due within 5 business days of the date of this letter, and $50,000 will be
due on or before June 30, 2000. Such retainer fee shall be credited against any
future cash transaction fees received by Xxxxxx Xxxxxx in connection with a
Transaction.
(b) A transaction fee of (x) 6.5% with respect to
equity Securities or Securities convertible or exchangeable into equity
Securities and (y) 3% with respect to debt Securities which are not convertible
or exchangeable into equity Securities, of the Aggregate Consideration (as
defined below), but not less than $400,000, received at any time by the Company
in connection with a Transaction (other than a Business Combination), payable
in cash or by certified check on the date on which such Aggregate Consideration
is paid, unless the Aggregate Consideration is deposited into an escrow account
pending the closing of the Offering, in which case GKM's fee will be paid
immediately upon the disbursement of funds from the escrow account; provided,
that in lieu of the amounts specified above, if such transaction is a Business
Combination, GKM shall receive the transaction fee provided for in Section 3
hereof.
The Aggregate Consideration, for purposes of calculating GKM's fee above,
shall include the total gross proceeds from Securities issued by the Company or
sold by Navarre Corporation or any other 10% to a Purchaser in connection with
a Transaction, including any amounts paid in escrow, any amounts payable in the
future, whether or not subject to any contingency in connection therewith, and
any amounts payable upon conversion or exchange of any Securities issued or
sold in the Transaction (it being understood that GKM's fee shall only be due
and payable when such amounts are received by the Company, Navarre Corporation
or such other stockholder). If the Aggregate Consideration is paid in whole or
in part in the form of securities or other noncash consideration, such
consideration shall be valued at the fair market value thereof on the day prior
to the closing date of the Transaction; provided that, to the extent that such
consideration consists of securities with an existing public trading market,
the value thereof shall be determined by an average of the closing sales price
for such securities on the five trading days prior to the closing date of the
Transaction.
3
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
NetRadio Corporation
April 26, 2000
Page 3
(c) In addition to the compensation to be paid to GKM as provided
in Sections 2 and 3 hereof, the Company shall pay to, or on behalf of,
GKM, promptly as billed, all reasonable out-of-pocket expenses incurred by
GKM in connection with its services to be rendered hereunder, including
all reasonable fees, disbursements and other charges of GKM's counsel.
(d) The term of this agreement shall extend from the date hereof
until December 31, 2000, unless earlier terminated by either of the
parties hereto. GKM may resign for any reason, or the Company may for any
reason terminate the services of GKM, upon thirty days' prior written
notice to the other. If GKM resigns or the Company terminates GKM's
services for any reason other than for Cause (as defined below), GKM and
its counsel shall be entitled to receive only the amounts provided for in
Sections 2(a) and 2(c) hereof and then only those amounts accrued and
unpaid up to and including the effective date of such termination or
resignation, as the case may be; provided, however, that if GKM's services
are terminated for any reason by the Company, other than for Cause, and
the Company thereafter consummates a Transaction within twelve (12) months
from the date of this Agreement, GKM shall also be entitled to receive in
full the transaction fees provided for in Sections 2(b) and 3 hereof. For
purposes hereof, "Cause" shall mean gross negligence, willful malfeasance,
illegal actions or other acts or omissions of similar gravity.
3. Business Combination. If a Business Combination involving the
Company or any of its subsidiaries is consummated, or the Company enters into
an agreement providing for a Business Combination, (i) during the term of this
Agreement, as amended or extended, with any party or (ii) during the 12-month
period after the expiration of such term, with any party identified to the
Company by GKM during such term, with any party as to which GKM advised the
Company during such term, or with any party with which the Company or GKM had
discussions during such term, then the Company shall pay GKM a transaction fee
in an amount calculated in accordance with the following schedule as a
percentage of the Transaction Value (as hereinafter defined) of the Business
Combination, but not less than $650,000, which shall be payable in cash on the
closing date of such transaction; provided, however, that no such payment shall
be due if the Company enters into such an agreement but no Business Combination
of any kind is at any time consummated.
Fee Percentage Transaction Value
-------------- -----------------
1.5% First $25 million
2.0% Excess over $25 million up
to $50 million
4
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
Net Radio Corporation
April 26, 2000
Page 4
Fee Percentage Transaction Value
-------------- -----------------
2.5% Excess over $50 million
If a Business Combination is consummated with any party previously identified
in writing to GKM with whom the Company has had substantive discussions
regarding a Business Combination within the 90-day period prior to the date of
this agreement, then GKM's fee shall be one-half of the amount calculated
above, but in no event less than $250,000. If an Opinion is requested by the
Company and rendered by GKM, the Company shall pay a cash fee to GKM upon
delivery of such Opinion (whether or not a Transaction is subsequently
consummated), such fee to be mutually agreed upon by the Company and GKM at
such time and provided for in a separate agreement as a addendum hereto.
As used in this Agreement, the term "Business Combination" means, whether
effected in one transaction or a series of transactions: (a) any merger,
consolidation, reorganization or other business combination pursuant to which
the Company or the business of the Company is acquired by a Purchaser, (b) the
acquisition, directly or indirectly, by a Purchaser of a substantial portion of
the total voting power or capital stock outstanding or a substantial portion of
the assets of the Company by way of a negotiated purchase or otherwise, or
(c) the acquisition, directly or indirectly, by a Purchaser of control of the
Company or the ability to effect such control, or the ability to influence
significantly the decisions made by the Company.
For purposes of the preceding paragraph, "Transaction Value" shall include
the total proceeds and other consideration paid or received in connection with
a Business Combination (including amounts paid in escrow), including: (i) cash;
(ii) notes, securities and other property; (iii) liabilities for indebtedness
(other than trade payables) assumed or extinguished; (iv) payments made in
installments; (v) contingent payments (whether or not related to future
earnings or operations); and (vi) dividends and distributions to stockholders
and other equity holders in anticipation of a Business Combination and cash and
other current assets (net of current liabilities) retained in connection with a
Business Combination. If the Transaction Value is paid in whole or in part in
the form of securities or other non-cash consideration, such consideration
shall be valued at the fair market value thereof on the day prior to the
closing date of the Business Combination; provided that, to the extent such
consideration consists of securities with an existing public trading market,
the value thereof shall be determined by the average of the closing sales price
for such securities on the five trading days prior to the closing date of the
Business Combination. All amounts payable pursuant to the preceding paragraph
are due and payable to GKM, in cash or by certified check, at the closing of
such Business Combination, and to the extent any portion of the Transaction
Value is paid subsequent to such closing, the applicable fee relating thereto
shall be paid when such amounts of the Transaction Value are actually paid or
received.
5
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
NetRadio Corporation
April 26, 2000
Page 5
4. Indemnity. The Company agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached hereto, the
provisions of which are incorporated herein by reference.
5. Representations, Warranties and Covenants of Company. The
Company represents and warrants to, and covenants with, GKM that:
(a) (i) The Company has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder, and all consents, authorizations, approvals and orders required
in connection with the execution, delivery and performance hereof have
been obtained; (ii) this Agreement is a valid and binding obligation of
the Company, enforceable in accordance with its terms, except to the
extent that the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors
generally and general principles of equity; and (iii) the execution,
delivery and performance of this Agreement will not conflict with, result
in a breach of any of the terms or provisions of, or constitute a
violation or a default under, any material agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound.
(b) The Company shall furnish GKM with such information as GKM
believes appropriate to its assignment hereunder (all such information so
furnished being the "Information"). The Company recognizes and confirms
that GKM (i) will use, and rely primarily on, the Information and
information available from generally recognized public sources (the "Other
Information") in rendering its services without having independently
verified the same, (ii) does not assume responsibility for the accuracy or
completeness of the Information and such Other Information, (iii) will not
make an appraisal of any assets of the Company and (iv) will provide its
advice hereunder based on the Information and the Other Information. The
Information to be furnished by the Company, when delivered, will be true
and correct in all material respects and will not contain any misstatement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. The
Company shall promptly notify GKM of any material inaccuracy or
misstatement in, or material omission from, any Information theretofore
delivered to GKM.
(c) During the term of this Agreement, the Company will give
GKM prompt notice of any material change in the assets, liabilities,
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, as well as such other information concerning the business and
financial condition of the Company as GKM may from time to time reasonably
request.
6
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
NetRadio Corporation
April 26, 2000
Page 6
6. Survival of Certain Provisions. The expense, indemnification,
reimbursement and contribution obligations contained in the Indemnification
Agreement, the Company's obligation to pay any compensation earned pursuant
hereto, the representations and warranties of the Company contained in Section
5 hereof and the provisions of Sections 2 and 3 shall remain operative and in
full force and effect regardless of (a) any withdrawal, termination or
consummation of or failure to initiate or consummate the Transaction, (b) any
investigation made by or on behalf of GKM or any other Indemnified Party (as
defined in the Indemnification Agreement) or (c) any termination of this
Agreement, resignation of GKM hereunder or the termination of GKM's services
hereunder, and shall be binding upon, and shall inure to the benefit of, any
successors, assigns, heirs and personal representatives of the Company, GKM and
the Indemnified Parties (as defined in the Indemnification Agreement). Nothing
herein requires the Company to consummate the Transaction or any other
transaction contemplated hereby.
7. Confidentiality. Any financial advice rendered by GKM pursuant
to this Agreement may not be disclosed publicly in any manner without GKM's
prior written approval, except as may be required by law or regulation or
court order but subject to the limitation below. If the Company is required or
reasonably expects to be required by legal or regulatory process or requirement
to disclose any of such advice, the Company shall provide GKM with prompt
notice thereof so that GKM may seek a protective order or other appropriate
remedy or take other appropriate action. If a protective order or other remedy
is obtained, the Company shall use all reasonable efforts to assure that all of
such advice disclosed will be covered by such order or other remedy. Whether or
not such a protective order or other remedy is obtained, the Company shall
disclose only that portion of such advice which the Company is required to
disclose by such legal or regulatory process or requirement.
8. Use of Name. The Company understands that GKM has not consented
to being identified as financial advisor to the Company, and except as
required by law, rule or regulation of any federal, state or local government
or regulatory body, or by any securities exchange, the Company agrees that any
direct or indirect references to GKM or any affiliate of GKM in any document,
or any other release or communication, except as a result or a disclosure
required by law or regulation or court order, shall be subject to GKM's prior
approval.
9. Notices. Notices given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) if to the
Company, at its principal office at NetRadio Corporation, Riverplace Exposition
Hall, 00 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Chief Executive Officer and President, and (b)
if to GKM, at the office of Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc., 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx.
7
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
Net Radio Corporation
April 26, 2000
Page 7
10. Future Advertisements. The Company agrees that GKM has the right to
place advertisements describing its services to the Company under this Agreement
in financial and other newspapers and journals at its own expense following the
date upon which the Transaction closes.
11. Miscellaneous.
(a) This Agreement (including the attached Indemnification
Agreement) sets forth the entire agreement between the parties, supersedes and
merges all prior written or oral agreements with respect to the subject matter
hereof, may only be amended in writing and shall be governed by the laws of the
State of New York applicable to agreements made and to be performed entirely
within such State. Each party hereto hereby irrevocably submits for purposes of
any action arising from this Agreement brought by the other party hereto to the
jurisdiction of the courts of New York State located in the Borough of
Manhattan and the U.S. District Court for the Southern District of New York.
(b) The Company (for itself, anyone claiming through it or in its
name, and on behalf of its equity holders) and GKM each hereby irrevocably
waive 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.
(c) This Agreement may not be assigned by either party without the
prior written consent of the other party.
(d) If any provision of this Agreement is determined to be invalid
or unenforceable in any respect, such determination will not effect such
provision in any other respect or any other provision of this Agreement, which
will remain in full force and effect.
8
[GKM XXXXXX XXXXXX XXXXXXXX XXXXXXXXXX]
NetRadio Corporation
April 26, 2000
Page 8
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to GKM the enclosed duplicate copy of this Agreement.
Very truly yours,
XXXXXX XXXXXX XXXXXXXX & CO., INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Senior Managing Director
Accepted and agreed to as of
the date first written above
NETRADIO CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx,
Chief Executive Officer and President
9
NETRADIO CORPORATION
RIVERPLACE EXPOSITION HALL
00 XXXX XXXXXX XXXXXXXXX, XXXXX 000
XXXXXXXXXXX, XXXXXXXXX 00000
April 26, 2000
CONFIDENTIAL
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Senior Managing Director
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
("GKM") by NetRadio Corporation (the "Company"), as more fully set forth in
the engagement letter dated April 26, 2000 (the "Financial Services
Agreement"), and further recognizing that GKM's role is as agent, the Company
agrees to indemnify and hold harmless GKM and its affiliates, the respective
officers, directors, agents, representatives and employees of each of the
foregoing, and each other person controlling GKM 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 all claims,
damages, expenses and liabilities (and, subject to the fourth paragraph of this
letter, all actions, suits, proceedings and investigations in respect thereof),
relating to or based upon any transaction contemplated by the Financial
Services Agreement or any breach of any agreement, representation or warranty
of the Company contained in the Financial Services Agreement or warranty of the
Company contained in the Financial Services Agreement as they are incurred.
Subject to the fifth paragraph of this letter, the Company will also promptly
reimburse any Indemnified Party for all expenses (including the reasonable
fees, disbursements and other charges of legal counsel) as they are incurred in
connection with the investigation of, preparation for or defense of any pending
or threatened claim, action, suit, proceeding or investigation relating to,
arising in any manner from or based upon any transaction contemplated by the
Financial Services Agreement.
Notwithstanding the foregoing, the Company shall not be liable hereunder
for any 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 indirect, in contract or tort or
otherwise) to the Company for or in connection with GKM's engagement under the
Financial Services Agreement except for the portion or share of any claims,
damages, liabilities or expenses that a court of competent jurisdiction shall
have determined by final judgment resulted primarily from the gross negligence
or willful misconduct of such Indemnified Party.
10
Xxxxxx Xxxxxx Xxxxxxxx & Co. Inc.
April 26, 2000
Page 2
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, investigation or proceeding.
The Company further agrees that it will not without the prior written consent
of GKM settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit, investigation or proceeding in
respect of which indemnification may be sought hereunder unless such
settlement, compromise or consent includes the unconditional release of GKM and
each other Indemnified Party hereunder from all liability arising from such
claim, action, suit, investigation or proceeding.
If multiple claims are brought against GKM in 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. 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 such Claim with counsel reasonably satisfactory to such Indemnified Party,
which consent shall not be unreasonably withheld. Upon assumption by the
Company of the defense of such Claim, such Indemnified Party shall have the
right to participate in the defense of such Claim and to retain its own 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 reasonably satisfactory to such
Indemnified Party in a timely manner or (iii) such Indemnified Party shall have
reasonably determined (based upon written advice of counsel) that
representation of such Indemnified Party by counsel provided by the Company
pursuant to this paragraph 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; provided, however, that the
Company shall only be liable for the reasonable fees and expenses of one counsel
(other than local counsel) retained by all Indemnified Parties with respect to
a claim under clauses (ii) and (iii) of this sentence. 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).
11
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
April 26, 2000
Page 3
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 claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative benefits to the Company, on the one hand, and GKM, on the
other hand, in connection with the transaction to which such indemnification or
reimbursement relates. The Company and GKM hereby agree that the relative
benefits to the Company, on the one hand, and GKM, on the other hand, with
respect to such transaction shall be deemed to be in the same proportion as
(i) the total amount or value paid to the Company or its stockholders,
subsidiaries, creditors or affiliates in connection with such transaction
(before deducting expenses), whether or not consummated, bears to (ii) the fees
actually paid to GKM in connection with such transaction. 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 the Indemnified Party 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 GKM, on the other hand, in connection with the
matters as to which such 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 GKM
pursuant to the Financial Services Agreement (excluding any amounts received as
reimbursement of expenses incurred by GKM). 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 claims,
damages, liabilities or expenses to the extent that 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 or from a breach on the part of GKM 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
the assigns, 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. THE COMPANY HEREBY CONSENTS, SOLELY FOR THE PURPOSE OF
ALLOWING AN INDEMNIFIED PARTY TO ENFORCE ITS RIGHTS HEREUNDER, TO PERSONAL
JURISDICTION AND SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM (FOR WHICH
INDEMNIFICATION, REIMBURSEMENT OR CONTRIBUTION MAY BE SOUGHT HEREUNDER) IS
BROUGHT AGAINST GKM OR ANY OTHER INDEMNIFIED PARTY. The Company also hereby
irrevocably waives any right it may have to trial by jury in respect of any
claim based upon or arising out of the Agreement or the transactions
contemplated hereby. This Agreement may not be amended or otherwise modified
except by an
12
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
April 26, 2000
Page 4
instrument signed by both the Company and GKM. 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. 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
GKM's engagement thereunder.
Very truly yours,
NETRADIO CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer and President
Acknowledged and Agreed to as of
the date first written above
XXXXXX XXXXXX XXXXXXXX & CO., INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
Senior Managing Director
