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INDEMNIFICATION AGREEMENT
(XXXXXXX X. XXXX)
This Indemnification Agreement is made and entered into as of
___________, 1999 between xxxxxxx.xxx, Inc., a Delaware corporation (the
"Company") and Xxxxxxx X. Xxxx, an individual resident of the State of Ohio
("King").
WHEREAS, simultaneous with the execution of this Indemnification
Agreement, the Company, the Company's shareholders, Cafe Odyssey, Inc., a
Minnesota corporation ("Buyer"), King and Cafe Odyssey Acquisition Subsidiary,
Inc., a Delaware corporation and a wholly owned subsidiary of Buyer ("Merger
Subsidiary"), propose to enter into an Agreement and Plan of Merger
contemplating the merger of the Company with and into Merger Subsidiary (the
"Merger Agreement").
WHEREAS, the Company and King desire to enter into this Agreement
pursuant to which King agrees to indemnify and hold the Company and its
officers, directors, employees, affiliates and shareholders (collectively, the
"Indemnitees") harmless from and against any and all losses, damages or
deficiencies resulting to any of the Indemnitees from a claim brought by any
shareholder of Buyer relating to the negotiation, authorization, approval,
execution or consummation of the Merger Agreement on the terms and conditions
set forth below.
WHEREAS, King acknowledges that the execution of the Merger Agreement
by the Company and its shareholders is contingent upon the execution of this
Agreement and King's agreement to the terms hereof. The availability to the
Indemnitees of the protections afforded to them by this Agreement are important
considerations in the decision of the Company and its shareholders to enter into
the Merger Agreement, and the Company and its shareholders are unwilling to
consummate the Merger unless King executes and delivers this Agreement to the
Company.
NOW, THEREFORE, in consideration of the above recitals, the mutual
promises and undertakings contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and King agree as follows:
1. Indemnification of the Indemnitees.
(a) The undersigned agrees to defend, indemnify and hold
harmless each of the Indemnitees from, against and in respect of (i) any and all
losses, damages or deficiencies resulting to any of the Indemnitees from a claim
by any present or former shareholder of Buyer relating to the negotiation,
authorization, approval, execution or consummation of the Merger Agreement by
Buyer or Merger Subsidiary, the solicitation by Buyer of the authorization and
approval by its shareholders of the Merger Agreement and the Merger or any
public dissemination by Buyer of any information regarding the Company, the
Merger Agreement or the Merger; and (ii) and all costs and expenses incident to
any and all actions, suits, proceedings, claims, demands, assessments or
judgments in respect thereof regardless of the merit thereof, including
reasonable legal and accounting fees and
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expenses (whether incident to the foregoing or to an Indemnitee's enforcement of
said rights of defense and indemnity).
(b) It is the parties' intention that King's obligations to
defend, indemnify and hold harmless hereunder shall be without monetary limit.
The provisions regarding indemnification and the limitation on the survival of
the representations and warranties contained in Article 9 of the Merger
Agreement are hereby incorporated herein by this reference. Consequently, and
without limiting the generality of the foregoing, no claim for indemnification
may be made against King hereunder or otherwise unless notice of such claim is
delivered to King on or before the last day upon which such representation or
warranty survives under Section 9.01 of the Merger Agreement.
2. Procedure for Indemnification of the Indemnitees. If any action,
suit or proceeding shall be commenced against any of the Indemnitees or any
claim, demand or assessment be asserted against any of the Indemnitees in
respect of which any Indemnitee proposes to demand indemnification from King
hereunder, such Indemnitee against whom such a claim, demand or assessment is
made or who proposes to demand indemnification from King shall notify King and
Xxxxxx X. Xxxxxxxxx to that effect with reasonable promptness. King shall
thereafter reimburse any such Indemnitee for all of such Indemnitee's expenses
(as described herein) for such defense, as and when they are incurred.
3. Amendment and Waiver. This Agreement may not be amended or waived
except in a writing executed by the party against whom such amendment or waiver
is sought to be enforced. No course of dealing between or among any persons
having any interest in this Agreement will be deemed effective to modify or
amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
4. Third Party Beneficiaries. All Indemnitees who are not signatories
hereto are expressly intended to be third party beneficiaries of this Agreement.
5. Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or
mailed by first class mail, return receipt requested, or when receipt is
acknowledged, if sent by facsimile, telecopy, e-mail or other electronic
transmission device. Notices, demands and communications to Xxxxxx Xxxxxxxxx,
the other Indemnitees or King will, unless another address is specified in
writing, be sent to the address indicated below:
Notices to Xxxxxx Xxxxxxxxx and with a copy to:
the other Indemnitees: Xxxxxxxx & Knight, a Professional Corporation
xxxxxxx.xxx, Inc. 0000 Xxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, XX 00000
Xxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxx, Esq.
E-mail: XXXXXX@XXXXXXXXX.XXX E-mail: xxxxxxx@xxxxx.xxx
Fax: (000) 000-0000 Fax: (000) 000-0000
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Notices to King: with a copy to:
Xxxxxxx X. Xxxx Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
BaryCenter Capital Management 00 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxx, Esq.
E-mail: XXXXXXXXX@XXX.XXX E-mail: XXXXXX@XXXXXX.XXX
Fax: (000) 000-0000 Fax: (000) 000-0000
6. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
7. Complete Agreement. This Agreement and the Merger Agreement
contain the complete agreement between the parties and supersede any prior
understandings, agreements or representations by or between the parties, written
or oral, which may have related to the subject matter hereof in any way.
8. Counterparts. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
9. Governing Law. The internal law, without regard to conflicts of
laws principles, of the State of Minnesota will govern all questions concerning
the construction, validity and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement.
10. Arbitration. Any dispute between any of the Indemnitees and King
under this Agreement shall be resolved by arbitration by an arbitrator selected
under the rules of the American Arbitration Association (located in Minneapolis,
Minnesota) and the arbitration shall be conducted in that same location under
the rules of said Association. The Indemnitees and King shall each be entitled
to present evidence and argument to the arbitrator. The arbitrator shall have
the right only to interpret and apply the provisions of this Agreement and may
not change any of its provisions. The arbitrator shall permit reasonable
pre-hearing discovery of facts, to the extent necessary to establish a claim or
a defense to a claim, subject to supervision by the arbitrator. The
determination of the arbitrator shall be conclusive and binding upon the parties
and judgment upon the same may be entered in any court having jurisdiction
thereof. The arbitrator shall give written notice to the parties stating his
determination, and shall furnish to each party a signed copy of such
determination.
11. Capitalized Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXX.XXX, INC.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx,
President, Secretary and Treasurer
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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