INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is entered into as of the 5th day of July,
2006 among ENTERTAINMENT IS US, INC., a Delaware corporation (the "Company"),
SUNKYO CORPORATION, a Japanese corporation and a wholly owned subsidiary of the
Company (the "Subsidiary"), and the Indemnitee identified on the signature page
hereto (collectively with his Affiliated Persons, as defined below, the
"Indemnitee").
RECITALS
A. The Company desires to appoint the Indemnitee to serve as a director of
the Company. As part of the duties of the Indemnitee as a director of the
Company, the Indemnitee will oversee the Company's ownership of the Subsidiary
and the Subsidiary's operations.
B. The Indemnitee has indicated that he would not be willing to serve as a
director of the Company in the absence of indemnification by the Company in
addition to that provided in the Certificate of Incorporation and the By-Laws of
the Company, and unconditional guarantee by the Subsidiary of the Company's
indemnification obligations.
AGREEMENTS
NOW, THEREFORE, the Company and the Indemnitee hereby agree as follows:
1. Indemnification.
(a) Indemnification of Expenses. Subject to the provisions of Section
1(b), the Company shall indemnify and hold harmless the Indemnitee (including
all of his Affiliated Persons (as defined below)) to the fullest extent
permitted by law if such Indemnitee was or is or becomes a party to or witness
or other participant in, or is threatened to be made a party to or witness or
other participant in, any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any hearing, inquiry
or investigation that such Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a "Claim") by reason of (or arising in part out of) any event
or occurrence related to the fact that Indemnitee is or was (or is alleged to be
or to have been) a director, officer, employee, controlling person, fiduciary or
other agent or affiliate of the Company, or any subsidiary of the Company, or is
or was (or is alleged to be or to have been) serving at the request of the
Company as a director, officer, employee, controlling person, fiduciary or other
agent or affiliate of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of such
Indemnitee while serving (or allegedly serving) in such capacity including,
without limitation, any and all losses, claims, damages, expenses and
liabilities, joint or several (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit proceeding or any claim asserted) under the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, or other federal or
state statutory law or regulation, at common law or otherwise, which relate
directly or indirectly to the registration, purchase, sale or ownership of any
securities of the Company or to any fiduciary obligation owed with respect to
the Company and its stockholders (hereinafter an "Indemnification Event"),
against any and all expenses (including attorneys' fees and all other costs,
expenses and obligations incurred in connection with investigating, defending a
witness in or participating in (including on appeal), or preparing to defend, be
a witness in or participate in, any such action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation), judgments,
fines, penalties and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this Agreement
(collectively, hereinafter "Expenses"), including all interest, assessments and
other charges paid or payable in connection with or in respect of such Expenses.
Such payment of Expenses shall be made by the Company as soon as practicable but
in any event no later than ten days after written demand by the Indemnitee
therefor is presented to the Company.
(b) Independent Legal Counsel. Notwithstanding the foregoing, (i) the
obligations of the Company under Section 1(a) shall be subject to the condition
that the Independent Legal Counsel (as defined in Section 10(d) hereof) shall
not have determined in a written opinion that Indemnitee would not be permitted
to be indemnified under applicable law, and (ii) the obligation of the Company
to make an advance payment of Expenses to Indemnitee pursuant to Section 2(a)
(an "Expense Advance") shall be subject to the condition that, if, when and to
the extent that the Independent Legal Counsel determines that Indemnitee would
not be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Independent
Legal Counsel that Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding and Indemnitee shall not be required to
reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee's obligation to reimburse
the Company for any Expense Advance shall be unsecured and no interest shall be
charged thereon. If there has been no determination by the Independent Legal
Counsel or if the Independent Legal Counsel determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such determination by
the Independent Legal Counsel or any aspect thereof, including the legal or
factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Independent Legal
Counsel otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Contribution. If the indemnification provided for in Section l(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then the Company, in lieu of indemnifying
such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitee, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Indemnitee in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with the registration of the Company's
securities, the relative benefits received by the Company and the Indemnitee
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Company and the
Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and the Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section l(c) were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. In connection with the registration of the Company's
securities, in no event shall an Indemnitee be required to contribute any amount
under this Section l(c) in excess of the lesser of (i) that proportion of the
total of such losses, claims, damages or liabilities indemnified against equal
to the proportion of the total securities sold under such registration statement
which is being sold by such Indemnitee or (ii) the proceeds received by such
Indemnitee from its sale of securities under such registration statement. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
2
(d) Survival Regardless of Investigation. The indemnification and
contribution provided for in this Section 1 will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnitee or any
officer, director, employee, agent or controlling person of the Indemnitee.
(e) Mandatory Payment of Expenses. Notwithstanding any other provision
of this Agreement other than Section 9 hereof, to the extent that Indemnitee has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any action, suit,
proceeding, inquiry or investigation referred to in Section 1(a) hereof or in
the defense of any claim, issue or matter therein, such Indemnitee shall be
indemnified against all Expenses incurred by such Indemnitee in connection
therewith.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses
incurred by the Indemnitee. The advances to be made hereunder shall be paid by
the Company to the Indemnitee as soon as practicable but in any event no later
than ten days after written demand by such Indemnitee therefor to the Company.
(b) Notice/Cooperation by Indemnitee. The Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, the Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
3
(c) No Presumptions; Burden of Proof. For purposes of this Agreement,
the termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contende, or its
equivalent, shall not create a presumption that the Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Independent Legal Counsel to have made a
determination as to whether an Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Independent Legal Counsel that the Indemnitee has not met such standard of
conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that the Indemnitee
should be indemnified under applicable law, shall be a defense to the
Indemnitee's claim or create a presumption that the Indemnitee has not met any
particular standard of conduct or did not have any particular belief. In
connection with any determination by the Independent Legal Counsel or otherwise
as to whether the Indemnitee is entitled to be indemnified hereunder, the burden
of proof shall be on the Company to establish that the Indemnitee is not so
entitled.
(d) Notice to Insurers. If, at the time of the receipt by the Company of
a notice of a Claim pursuant to Section 2(b) hereof, the Company has liability
insurance in effect which may cover such Claim, the Company shall give prompt
notice of the commencement of such Claim to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such action, suit,
proceeding, inquiry or investigation in accordance with the terms of such
policies.
(e) Selection of Counsel. In the event the Company shall be obligated
hereunder to pay the Expenses of any Claim, the Company shall be entitled to
assume the defense of such Claim, with counsel approved by the applicable
Indemnitee, which approval shall not be unreasonably withheld, upon the delivery
to such Indemnitee of written notice of its election to do so. After delivery of
such notice, approval of such counsel by the Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to such Indemnitee
under this Agreement for any fees of counsel subsequently incurred by such
Indemnitee with respect to the same Claim; provided that, (i) the Indemnitee
shall have the right to employ such Indemnitee's counsel in any such Claim at
the Indemnitee's expense and (ii) if [a] the employment of counsel by the
Indemnitee has been previously authorized by the Company, [b] such Indemnitee
shall have reasonably concluded that there is a conflict of interest between the
Company and such Indemnitee in the conduct of any such defense, or [c] the
Company shall not continue to retain such counsel to defend such Claim, then the
fees and expenses of the Indemnitee's counsel shall be at the expense of the
Company. The Company shall have the right to conduct such defense as it sees fit
in its sole discretion, including the right to settle any claim against the
Indemnitee without the consent of such Indemnitee.
4
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification may
not be specifically authorized by the other provisions of this Agreement, the
Company's Certificate of Incorporation, the Company's By-Laws or by statute. In
the event of any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation to indemnify a
member of its Board of Directors or an officer, employee, controlling person,
agent or fiduciary, it is the intent of the parties hereto that the Indemnitee
shall enjoy by this Agreement the greater benefits afforded by such change. In
the event of any change in any applicable law, statute or rule which narrows the
right of a Delaware corporation to indemnify a member of its Board of Directors
or an officer, employee, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be applied to this Agreement,
shall have no effect on this Agreement or the parties' rights and obligations
hereunder except as set forth in Section 8(a) hereof.
(b) Nonexclusivity. The indemnification provided by this Agreement shall
be in addition to any rights to which the Indemnitee may be entitled under the
Company's Certificate of Incorporation, its By-Laws, any agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise. The indemnification provided under this
Agreement shall continue as to the Indemnitee for any action such Indemnitee
took or did not take while serving in an indemnified capacity even though the
Indemnitee may have ceased to serve in such capacity.
4. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against the
Indemnitee to the extent such Indemnitee has otherwise actually received payment
(under any insurance policy, Certificate of Incorporation, By-Law or otherwise)
of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for any portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses to which such Indemnitee is entitled.
5
6. Mutual Acknowledgment. The Company and the Indemnitee acknowledge that
in certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, controlling
persons, fiduciaries or other agents or affiliates under this Agreement or
otherwise. The Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's rights under public
policy to indemnify the Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, control persons,
fiduciaries or other agents and affiliates, the Indemnitee shall be covered by
such policies in such a manner as to provide to the Indemnitee the same rights
and benefits as are accorded to the most favorably insured of the Company's
directors.
8. Exceptions. Any other provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of the this Agreement:
(a) Excluded Action or Omissions. To indemnify the Indemnitee for such
Indemnitee's acts, omissions or transactions from which the Indemnitee is
prohibited from receiving indemnification under this Agreement or under
applicable law; provided, however, that notwithstanding any limitation set forth
in this Section 8(a) regarding the Company's obligation to provide
indemnification, Indemnitee shall be entitled under Section 2(a) to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that the Indemnitee has engaged in acts, omissions or transactions for
which Indemnitee is prohibited from receiving indemnification under this
Agreement or applicable law;
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to
the Indemnitee with respect to Claims initiated or brought voluntarily by such
Indemnitee and not by way of defense, except (i) with respect to actions or
proceedings to establish or enforce a right to indemnification under this
Agreement or any other agreement or insurance policy or under the Company's
Certificate of Incorporation or By-Laws now or hereafter in effect relating to
Claims for Indemnification Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the Delaware General Corporation Law,
regardless of whether such Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance recovery, as the case
may be;
6
(c) Lack of Good Faith. To indemnify the Indemnitee for any expenses
incurred by such Indemnitee with respect to any proceeding instituted by
Indemnitee on the Company to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions made by
the Indemnitee in such proceeding was not made in good faith or was frivolous;
or
(d) Claims Under Section 16(b). To indemnify the Indemnitee for expenses
and the payment of profits arising from the purchase and sale by such Indemnitee
of securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended or any similar successor statute; provided, however, that
notwithstanding any limitation set forth in this Section 8(d) regarding the
Company's obligation to provide indemnification, Indemnitee shall be entitled
under Section 2 to receive Expense Advances hereunder with respect to any such
Claim unless and until a court having jurisdiction over the Claim shall have
made a final judicial determination (as to which all rights of appeal therefrom
have been exhausted or lapsed) that the Indemnitee has liability arising from
the purchase and sale by such Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended or any similar
successor statute.
9. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against the
Indemnitee, such Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however , that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
10. Construction of Certain Phrases.
(a) For the purposes of this Agreement, an "Affiliated Person" of an
Indemnitee shall include any director, officer, employee, controlling person
(within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended), agent or
fiduciary of the Indemnitee, any stockholder of the Company for whom Indemnitee
serves as a director, officer, employee, controlling person, agent or fiduciary,
and any partnership, corporation, limited liability company, association, joint
stock company, trust or joint venture controlling, controlled by or under common
control with such a stockholder. For these purposes, "control" means the
possession, directly or indirectly, of the power to direct management and
policies of a person or entity, whether through the ownership of voting
securities, contract or otherwise.
7
(b) For purposes of this Agreement, references to the "Company" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify is directors, officers, employees, agents, fiduciaries
and other Affiliated Persons, so that if Indemnitee is or was a director,
officer, employee, agent, control person, fiduciary or an Affiliated Person of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, control person, agent
or fiduciary or another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, such Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting or
surviving corporation as such Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(c) For purposes of this Agreement, references to "fines" shall include
any excise taxes assessed on the Indemnitee with respect to an employee benefit
plan; and references to "serving at the request of the Company" shall include
any service as a director, office, employee, agent or fiduciary of the Company
which imposes duties on, or involves services by, such director, officer,
employee, agent, fiduciary or other Affiliated Person with respect to an
employee benefit plan, its participants or its beneficiaries; and if the
Indemnitee acted in good faith and in a manner such Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, such Indemnitee shall be deemed to have acted in a manner
"not opposed to the best interests of the Company" as referred to in this
Agreement.
(d) For purposes of this Agreement, "Independent Legal Counsel" shall
mean an attorney or firm of attorneys, selected by the Indemnittee and approved
by the Company (which approval shall not be unreasonably withheld or delayed),
who shall not have otherwise performed services for the Company or the
Indemnitee within the last three years (other than with respect to matters
concerning the right of the Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns, including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, and personal and
legal representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect with
respect to Claims relating to Indemnification Events regardless of whether the
Indemnitee continues to serve as a director, officer, employee, agent,
controlling person, or fiduciary of the Company or of any other enterprise at
the Company's request.
8
13. Attorneys' Fees. In the event that any action is instituted by an
Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof or
thereof, the Indemnitee shall be entitled to be paid all Expenses incurred by
such Indemnitee with respect to such action, regardless of whether such
Indemnitee is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of such
action, a court of competent jurisdiction over such action determines that each
of the material assertions made by such Indemnitee as a basis for such action
was not made in good faith or was frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, the Indemnitee shall be entitled
to be paid all Expenses incurred by such Indemnitee in defense of such action
(including costs and expenses incurred with respect to Indemnitee counterclaims
and cross-claims made in such action), and shall be entitled to the advancement
of Expenses with respect to such action, unless, as a part of such action, a
court having jurisdiction over such action determines that each of such
Indemnitee's material defenses to such action was made in bad faith or was
frivolous.
14. Notice. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall, in any
event be deemed to be given (a) five (5) days after deposit with the U.S. Postal
Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposited with Federal Express or similar overnight
courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if deliverable by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to an Indemnitee,
at the Indemnitee's address as set forth beneath the Indemnitee's signature to
this Agreement, and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as such party may
designate by ten days' advance written notice to the other party hereto.
9
15. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. Choice of Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of Delaware, as
applied to contracts between Delaware residents, entered into and to be
performed entirely within the State of Delaware, without regard to the conflict
of laws principles thereof.
18. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all documents required and shall
do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suite to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by all 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.
20. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
10
21. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving the Indemnitee any right to be retained
in the employ of the Company or any of its subsidiaries.
22. Subsidiary Guarantee. The Subsidiary irrevocably and unconditionally
agrees to pay in full to the Indemnitee all amounts due to Indemnitee by the
Company (without duplication of amounts theretofore paid by the Company), as and
when due, regardless of any defense (except the defense of payment by the
Company), right of set-off or counterclaim that the Company may have or assert.
[Remainder of page intentionally left blank. Signature page to follow.]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
ENTERTAINMENT IS US, INC.,
a Delaware corporation
BY /s/ Xxxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxxx Xxxxxxxx, Chief Executive
Officer
Address: One Magnificent Mile
000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SUBSIDIARY:
SUNKYO CORPORATION, a Japanese
corporation
BY /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxxx Xxxxxxxx, Chief Executive
Officer
Address: 0-0 Xxxxx-xxxxx, Xxx-xx,
Xxxxxxxx, Xxxxxxxx
Xxxxx 420-0852
INDEMNITEE:
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
Address: 00 Xxxxxx xx Xxxxxxxxxx
00000 Xxxxx
Xxxxxx
