Exhibit 10.36
SCHEDULE I
This Schedule I is a part of and is incorporated into that certain
Agreement (together, the "Agreement") dated October 20, 1999 by and between
xxxxxxxxx.xxx, inc. (the "Company"); and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJ").
The Company will indemnify and hold harmless Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, its affiliates and its parent and its
affiliates, and the respective directors, officers, agents and employees of
DLJ, its affiliates and its parent and its affiliates (DLJ and each such
entity or person, an "Indemnified Person") from and against any losses,
claims, damages, judgments, assessments, costs and other liabilities
(collectively "Liabilities"), and will reimburse each Indemnified Person for
all fees and expenses(including the reasonable fees and expenses of counsel)
(collectively, "Expenses") as they are incurred in investigating, preparing,
pursuing or defending any claim, action, proceeding or investigation, whether
or not in connection with pending or threatened litigation and whether or not
any Indemnified Person is a party (collectively, "Actions"). (i) caused by,
or arising out of or in connection with, any untrue statement or alleged
untrue statement of a material fact contained in the Offering Materials
(including any amendments thereof and supplements thereto) or by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (other than untrue statements or alleged untrue statements in,
or omissions or alleged omissions from, information relating to an
Indemnified Person furnished in writing by or on behalf of such Indemnified
Person expressly for use in the Offering Materials) or (ii) otherwise arising
out of or in connection with advice or services rendered or to be rendered by
any Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any Indemnified Person's actions or inactions in
connection with any such advice, services or transactions; provided that, in
the case of clause (ii) only, the Company will not be responsible for any
Liabilities or Expenses of any Indemnified Person that are determined by a
judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from such Indemnified
Person's gross negligence, bad faith or willful misconduct in connection with
any of the advice, actions, inactions or services referred to above. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's
rights under this Agreement (including, without limitation, its rights under
this Schedule I).
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this Agreement, such Indemnified Person shall promptly notify the
Company in writing; provided that failure so to notify the Company shall not
relieve the Company from any liability which the Company may have on account
of this indemnity or otherwise, except to the extent the Company shall have
been materially prejudiced by such failure. The Company shall, if requested
by DLJ, assume the defense of any such Action including the employment of
counsel reasonably satisfactory to DLJ. Any Indemnified Person shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless: (i) the Company has failed
promptly to assume the defense and employ counsel or (ii) the named parties
to any such Action (including any impleaded parties) include such Indemnified
Person and the Company, and such Indemnified Person shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the Company; provided
that the Company shall not in such event be responsible hereunder for the
fees and expenses of more than one firm of separate counsel in connection
with any Action in the same jurisdiction, in addition to any local counsel.
The Company shall not be liable for any settlement of any Action effected
without its written consent (which shall
I-1
not be unreasonably withheld). In addition, the Company will not, without
prior written consent of DLJ, settle, compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened
Action in respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Person is a party thereto) unless
such settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Person from all Liabilities arising out of such
Action.
In the event that the foregoing indemnity is judicially determined to be
unavailable to an Indemnified Person (other than in accordance with the terms
hereof), the Company shall contribute to the Liabilities and Expenses paid or
payable by such Indemnified Person in such proportion as is appropriate to
reflect (i) the relative benefits to the Company and its shareholders, on the
one hand, and to DLJ, on the other hand, of the matters contemplated by this
Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by the applicable law, not only such relative
benefits but also the relative fault of the Company, on the one hand, and
DLJ, on the other hand, in connection with the matters as to which such
Liabilities or Expenses relate, as well as any other relevant equitable
considerations; provided that in no event shall the Company contribute less
than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by DLJ pursuant to this Agreement. For
purposes of this paragraph, the relative benefits to the Company and its
shareholders, on the one hand, and to DLJ, on the other hand of the matters
contemplated by this Agreement 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 the Company or the Company's shareholders, as
the case may be, in the transaction or transactions that are within the scope
of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid or to be paid to DLJ under this Agreement.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
the Company for or in connection with advice or services rendered or to be
rendered by any Indemnified Person pursuant to this Agreement, the
transactions contemplated hereby or any Indemnified Person's actions or
inactions in connection with any such advice, services or transactions except
for Liabilities (and related Expenses) of the Company that are determined by
a judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from such Indemnified
Person's gross negligence, bad faith or willful misconduct in connection with
any such advice, actions, inactions or services.
If any term, provision, covenant or restriction contained in this
Schedule I 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 contained in
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall apply to any modification of this Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person's services under or in connection with,
this Agreement.
I-2
