Exhibit 10.52
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT (the "Agreement"), dated as of _____, 1999, by
and between 7TH LEVEL, INC., a Delaware corporation ("7th Level"), XXXXXXX X.
XXXXXXX, XXXXXX X. XXXXXXX and XXXXXX X. XXXXX, XX., (a/k/a Xxxxxx Xxxxx) (each
an "Indemnitee" and collectively, the "Indemnitees"). Any capitalized term which
is not defined in this Agreement shall have the meaning given such term in the
Merger Agreement (as defined below).
WHEREAS, pursuant to an agreement and plan of merger, dated as of the
date hereof (the "Merger Agreement"), by and among 7th Level, 7th Level Merger
Corporation ("Merger Corporation") and ViaGrafix Corporation, an Oklahoma
corporation ("ViaGrafix"), Merger Corporation shall be merged with and into
ViaGrafix (the "Merger") and the stockholders of ViaGrafix prior to the Merger
will receive 7th Level Common Stock;
WHEREAS, as an integral part of the Merger Agreement, 7th Level has
agreed to indemnify and hold harmless the Indemnitees from and against all
Losses (as defined herein), arising from the action entitled XXXXXX X.
VIAGRAFIX, ET AL (the "Suit"); and
WHEREAS, it is a condition precedent to the Merger that the parties
hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and representations,
warranties, covenants and agreements set forth herein, as well as other good and
valid consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. INDEMNITY. 7th Level agrees to indemnify and hold harmless each Indemnitee
from and against any and all judgments, debts, losses, claims, liabilities,
damages, penalties, interest, obligations, demands and expenses, including
attorney's fees and expenses and amounts paid in settlement ("Losses") arising
from the Suit.
2. CERTAIN REPRESENTATIONS OF THE INDEMNITEES. Each Indemnitee represents and
warrants to 7th Level that the prospectus dated March 4, 1998 of ViaGrafix, at
the time it became effective under the Securities Act of 1933, as amended, and
each other document which the plaintiffs allege forms the factual basis for the
Suit, did not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. COOPERATION. Each Indemnitee shall provide such assistance to 7th Level as
7th Level may reasonably request in connection with the defense of the Suit.
4. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, together with Sections 6.11 and
6.15 of the Merger Agreement, constitutes the entire Agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(b) AMENDMENTS, WAIVERS ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except upon
the execution and delivery of a written Agreement executed by the parties
hereto.
(c) NOTICES. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing (including facsimile or
similar writing) and shall be deemed to have been duly given (a) on the date of
service if personally served, (b) on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered, return
receipt requested, postage prepaid, (c) on the next day after sending, if sent
by overnight service, or (d) on the date sent if sent by facsimile, to the
parties at the following addresses or facsimile numbers with a copy sent by mail
as aforesaid on the same date (or at such other address or facsimile number for
a party as shall be specified by like notice):
If to 7th Level:
7th Level, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to any Indemnitee, at his address set forth on the
signature page hereto.
(d) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
(e) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
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(f) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with terms hereof, shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
(g) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(h) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(i) JURISDICTION AND FORUM. Each party hereto irrevocably submits to
the exclusive jurisdiction of the courts in the State of Oklahoma or any federal
court sitting in the State of Oklahoma in any action, suit or proceeding arising
in connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on FORUM NON CONVENIENS or any other objection to venue therein). Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(j) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning of interpretation of this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in two or more
counterparts and each of which shall be deemed to be an original and all of
which shall be considered one and the same Agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the day and year first above written.
7TH LEVEL, INC.
By:
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Name:
Title:
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XXXXXXX X. XXXXXXX
Address:
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XXXXXX X. XXXXXXX
Address:
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XXXXXX X. XXXXX, XX.
Address:
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