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MILGRAY ELECTRONICS, INC.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
October 25, 1996
Xxxx Xxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
This letter will confirm that we have engaged Xxxx Xxxxx & Co., Inc. to advise
and assist us in connection with the matters referred to in our letter
agreement dated October 25, 1996 (the "Engagement Letter"). In consideration
of your agreement to act on our behalf in connection with such matters, we
agree to indemnify and hold harmless you and your affiliates and your and their
respective officers, directors, employees and agents and each person being an
"Indemnified Person" from and against any losses, claims, damages or
liabilities related to, arising out of or in connection with the engagement
(the "Engagement") under the Engagement Letter, and will reimburse each
Indemnified Person for all expenses (including fees and expenses of counsel) as
they are incurred in connection with investigating, preparing, pursuing or
defending any action, claim, suit, investigation or proceeding related to,
arising out of or in connection with the Engagement, whether or not pending or
threatened and whether or not any Indemnified Person is a party. We will not,
however, be responsible for any losses, claims, damages, or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of any Indemnified Person. We
also agree that no Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to us for or in connection with
the Engagement except for any such liability for losses, claims, damages or
liabilities incurred by us that are finally judicially determined to have
resulted from the bad faith or gross negligence of such Indemnified Person.
We will not, without your prior written consent, settle, compromise, consent to
the entry of any judgment in or otherwise seek to terminate any action, claim,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such action, suit or
proceeding. No Indemnified Person seeking indemnification, reimbursement or
contribution under this agreement will, without our prior written consent,
settle, compromise, consent to the entry of any judgment in or otherwise seek to
terminate any action, claim, suit, investigation or proceeding referred to in
the preceding paragraph.
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Xxxx Xxxxx & Co., Inc.
October 25, 1996
Page Two
If the indemnification provided for in the first paragraph of this agreement is
judicially determined to be unavailable (other than in accordance with the terms
hereof) to an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to herein, then, in lieu of indemnifying such Indemnified
Person hereunder, we shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(and expenses relating thereto) (i) in such proportion as is appropriate to
reflect the relative benefits to you, on the one hand, and us, on the other
hand, of the Engagement or (ii) if the allocation provided by clause (i) above
is not available, in such proportion as is appropriate to reflect not only the
relative benefits referred to in such clause (i) but also the relative fault of
each of you and us, as well as any other relevant equitable considerations;
provided, however, in no event shall your aggregate contribution to the amount
paid or payable exceed the aggregate amount of fees actually received by you
under the Engagement Letter. For the purposes of this agreement, the relative
benefits to us and you of the Engagement shall be deemed to be in the same
proportion as (a) the total value paid or contemplated to be paid or received or
contemplated to be received by us or our stockholders, as the case may be, in
the transaction or transactions that are the subject of the Engagement, whether
or not any such transaction is consummated, bears to (b) the fees paid or to be
paid to you under the Engagement Letter.
The provisions of this agreement shall apply to the Engagement and any
modification thereof and shall remain in full force and effect regardless of any
termination or the completion of your services under the Engagement Letter.
This agreement and the Engagement Letter shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
executed in and to be performed in that state.
Very truly yours,
MILGRAY ELECTRONICS, INC.
By: /s/ XXXX XXXXXXXXX
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Title: Vice President-Finance
Accepted:
XXXX XXXXX & CO., INC.
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Vice President and Managing Director
Dated: 10/25/96
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