EXHIBIT 2.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made as of August 1st,
2003, by and among CYBER HOLDINGS CO., LTD., a corporation organized and
existing under the laws of Japan ("Cyber"); FAN CLUB ENTERTAINMENT CO., LTD., a
corporation organized and existing under the laws of Japan ("Fan Club"); and IA
GLOBAL, INC., a corporation organized and existing under the laws of the State
of Delaware ("IAG").
PRELIMINARY STATEMENTS
A. Cyber and IAG have memorialized the Investment in that certain
Investment Agreement between them dated as of even date herewith (the "Share
Purchase Agreement").
B. Before giving effect to the Investment, Fan Club has a share capital of
One Hundred and Forty Four Million Japanese Yen ((Y)144,000,000) representing
Two Hundred and Eighty Eight Thousand (288,000) shares, each with a face value
of Fifty Thousand Japanese Yen ((Y)500). Cyber is the sole shareholder of Fan
Club Entertainment.
C. IAG has agreed with Cyber to invest One Hundred and Thirty Four Million
Japanese Yen ((Y)134,000,000) in Fan Club (the "Investment"), and to receive, in
consideration therefor, Two Hundred and Sixty Eight Thousand (268,000) shares of
Fan Club's Common Stock, each with a face value of Fifty Thousand Japanese Yen
((Y)500) (the "Purchased Shares");
D. Cyber will immediately after above stated C) transaction is completed,
subscribe to newly issued shares in Fan Club in the amount of Fifty Six Million
Japanese Yen ((Y)56,000,000) in return for One Hundred and Twelve Thousand
(112,000) shares of Fan Club's Common Stock, each with a face value of Fifty
Thousand Japanese Yen ((Y)500).
E. At this time, as a result of these transactions, the total issued shares
of Fan Club will be Four Hundred Thousand (400,000) shares, with IAG and Cyber
holding Two Hundred and Six Eight Thousand (268,000) and One Hundred and Thirty
Two Thousand (132,000) shares of Fan Club's Common Stock, each with a face value
of Fifty Thousand Japanese Yen ((Y)500), respectively.
F To induce IAG to enter into the Investment Agreement and to make the
Investment, Cyber desires to indemnify IAG from damages it may incur as a result
of Cyber's breach of the Investment Agreement or the inaccuracy of Cyber's
representations and warranties in the Investment Agreement.
E. Cyber, Fan Club and IAG desire to set forth in writing their agreements
and understandings with respect to such indemnification and to matters ancillary
thereto.
NOW, THEREFORE, for and in consideration of the premises, covenants, and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do
covenant, agree, represent, warrant, and stipulate as follows:
Agreement
1. INDEMNIFICATION
(A) SCOPE. Cyber hereby unconditionally agree to indemnify and hold IAG
harmless against, and will reimburse IAG on demand for, any payment, loss, cost,
liability, demand, damage, and expense, including reasonable attorneys' fees
(including reasonable attorney's fees and reasonable costs of investigation
incurred in defending against such payment, loss, cost or expense or claim
therefor) ("Losses") made or incurred by or asserted against IAG at any time
after the date hereof, in respect of any and all damage or deficiency resulting
from any omission, misrepresentation, breach of warranty, or nonfulfillment of
any term, provision, covenant or agreement on the part of Cyber contained in the
Investment Agreement, or from any misrepresentation in, or omission from, any
certificate or other instrument furnished to IAG pursuant to the Investment
Agreement.
1.2 LIMITATION ON INDEMNIFICATION OBLIGATION. The obligations of Cyber to
indemnify IAG pursuant to this Agreement shall only be applicable to Losses
arising within three (3) years from the date hereof.
2. MISCELLANEOUS
2.1 ASSIGNABILITY. IAG may assign or transfer its rights hereunder upon
prior written notice to Cyber.
2.2 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent by registered or certified mail
(return receipt requested and postage prepaid), transmitted by telecopier, or
delivered by hand, by messenger or by a recognized overnight delivery service,
addressed as follows, or to such other address as such party may have from time
to time furnished to the other party in writing:
If to Cyber: Cyber Holdings Co., Ltd.
0-00 Xxxxxx Xxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx
Xxxxx
If to Fan Club: Fan Club Entertainment, Co., Ltd.
0-00 Xxxxxx Xxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx
Xxxxx
If to IAG: IA Global, Inc.
000 Xxxxxxx Xxxx. Xxxxx 000
Xxxxxxxxxx, XX 00000
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given (i) if sent by registered or
certified mail, the earlier of receipt and five (5) business days after
dispatch, (ii) if transmitted by telecopier, on the business day of confirmed
receipt by the addressee thereof, and (iii) if delivered in person or by
overnight courier, on the business day delivered.
2.3 COUNTERPARTS. This Agreement may be executed in several counterparts,
and each executed copy shall constitute an original instrument, but all such
counterparts shall together constitute but one and the same instrument.
2.4 HEADINGS; CONSTRUCTION. The headings of the several sections, divisions
or subsections of this Agreement shall not be construed to constitute any part
or to affect the meaning of any such sections, divisions or subsections. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption of burden of proof shall arise favoring or not
favoring any party by virtue of the authorship of any of the provisions of this
Agreement.
2.5 SEVERABILITY. If any provision of this Agreement or portion of any
provision, or the application thereof to any person or circumstance, shall, to
any extent, be held invalid or unenforceable, the remainder of this Agreement or
the remainder of such provision and the application thereof to other persons or
circumstances, other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law.
2.6 GOVERNING LAW. This Agreement, all exhibits and amendments hereto,
shall be governed in all respects under the internal laws of the State of
Delaware applicable to agreements made and to be performed wholly in the State
of Delaware (excluding any such law which may direct the application of the laws
of any other jurisdiction). The parties hereby submit to the exclusive
jurisdiction of the state and federal courts of the State of Delaware and with
venue in Wilmington, Delaware for the confirmation and enforcement of any
arbitration award relating to any dispute arising from or in connection with
this Agreement, including the validity, execution, performance and enforcement
hereof, and any matter relating hereto or relating to the relationship between
the parties that was created or contemplated hereunder. The parties agree that
they will not resort to the courts or other governmental agencies of any other
jurisdiction for the resolution of any such dispute or controversy and agree to
service by mail and waives any requirements of personal service. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective corporate officers thereunto duly authorized
on the day and year first above written.
CYBER HOLDINGS CO., LTD.
By: /S/ Xxxxxxxx Xxx
----------------------------
Xxxxxxxx Xxx
FAN CLUB ENTERTAINMENT CO., LTD.
By: /S/ Xxxxxxxx Xxx
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Xxxxxxxx Xxx
IA GLOBAL, INC.
By: /S/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx, CEO
