EXHIBIT 10
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement ("Agreement") is entered into between
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz ▇▇▇▇▇") and Command
Systems, Inc. ("Command"), Phoenix Home Life Mutual Insurance Company, a New
York mutual life insurance company, and PHL Global Holding Co., a Mauritius
Company (collectively, "Phoenix"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇")
(collectively, the "Parties").
WHEREAS, Mintz ▇▇▇▇▇, a professional corporation duly organized under
the laws of the State of Massachusetts, provided certain professional legal
services to Command; and
WHEREAS, Command, a Delaware corporation, may be liable to certain
third parties as a result of the provision of those legal services rendered by
▇▇▇▇▇ ▇▇▇▇▇; and
WHEREAS, Phoenix may be liable to certain third parties as a result of
the provision of those legal services rendered by ▇▇▇▇▇ ▇▇▇▇▇ to Command; and
WHEREAS, ▇▇▇▇▇▇ may be liable to certain third parties as a result of
the provision of those legal services rendered by ▇▇▇▇▇ ▇▇▇▇▇ to Command;
NOW, THEREFORE, and intending to be legally bound, the Parties agree as
follows;
1. Indemnification. ▇▇▇▇▇ ▇▇▇▇▇ agrees to indemnify and hold harmless
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Command, and its officers, directors, and employees as of the date hereof,
Phoenix and its officers, directors, and employees as of the date hereof, and
▇▇▇▇▇▇ for (i) all reasonable costs and expenses (including, but not limited to,
reasonable attorney's fees, reasonable accountant's fees, and reasonable fees or
costs incurred as a result of any additional Registration Statement or post-
effective amendment to a Registration Statement filed with the Securities and
Exchange Commission) relating to, and (ii) any amounts paid to settle any claims
or to satisfy any judgment or judicial or administrative order arising from,
any liability caused by reason of:
a. The failure to file a Registration Statement with the
Securities and Exchange Commission pursuant to Rule 462(b) under the
Securities Act of 1933 covering 345,000 shares of Command common stock
sold in March 1998, which shares were not covered by a registration
statement ordered effective by the Commission or its staff; and
b. The statements made in response to Item 2(c) and (d)(4)(iv)
of Part II of the Form 10-Q filed by Command with the Securities and
Exchange Commission on May 15, 1998, and other deficiency in the Form
10-Q caused by the failure to file the Rule 462(b) Registration
Statement, as described in subparagraph a. above; and
c. The failure before June 17, 1998, to disclose any contingent
liabilities arising from the matters identified in subparagraphs
a. and b. above.
This indemnity is limited to liabilities caused by the acts and omissions
identified in subparagraphs a. through c. above.
2. Required Notices to ▇▇▇▇▇ ▇▇▇▇▇. Command, Phoenix, and
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▇▇▇▇▇▇ will promptly notify ▇▇▇▇▇ ▇▇▇▇▇ in writing of any allegation, claim,
suit, proceeding, or investigation relating to the matters identified in
paragraph 1. Command, Phoenix, and ▇▇▇▇▇▇ shall not retain counsel or
accountants in connection with any such allegation, claim, suit, proceeding, or
investigation without the approval of ▇▇▇▇▇ ▇▇▇▇▇, which approval shall not be
unreasonably withheld. Command, Phoenix, and ▇▇▇▇▇▇ will fully and promptly
advise ▇▇▇▇▇ ▇▇▇▇▇ of the progress and developments in any such allegation,
claim, suit, proceeding, or investigation. Command, Phoenix, and ▇▇▇▇▇▇ will
fully and promptly comply with any reasonable request of ▇▇▇▇▇ ▇▇▇▇▇ for
information about the status of any such allegations, claim, suit, proceeding,
or investigation. Command, Phoenix, and ▇▇▇▇▇▇ shall not enter into any
settlement without written approval of ▇▇▇▇▇ ▇▇▇▇▇, which approval shall not be
unreasonably withheld.
3. Payment and Repayment. ▇▇▇▇▇ ▇▇▇▇▇ will pay all amounts
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indemnifiable under this Agreement promptly on receipt of satisfactory
documentation from Command, Phoenix, or ▇▇▇▇▇▇.
4. Representations and Warranties of ▇▇▇▇▇ ▇▇▇▇▇. ▇▇▇▇▇
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▇▇▇▇▇ represents and warrants to Command, Phoenix, and ▇▇▇▇▇▇ that it is duly
organized, validly existing, and in good standing as a professional corporation
under the laws of the State of Massachusetts; that it has the full power and
authority to execute, deliver, and perform its obligations under this
Agreement; and that this Agreement is the legal, valid and binding obligation of
▇▇▇▇▇ ▇▇▇▇▇ and is enforceable against it in accordance with its terms.
5. Representations and Warranties of Command. Command
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represents and warrants to ▇▇▇▇▇ ▇▇▇▇▇ that it is duly organized, validly
existing, and in good standing as a corporation in the State of Delaware; that
it has the full power and authority to execute, deliver, and perform its
obligations under this Agreement; and that this Agreement is the legal, valid
and binding obligation of Command and is enforceable against it in accordance
with its terms.
6. Representations and Warranties of Phoenix. Phoenix
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represents and warrants to ▇▇▇▇▇ ▇▇▇▇▇ that it is duly organized, validly
existing, and in good standing as a New York mutual life insurance company; that
it has the full power and authority to execute, deliver, and perform its
obligations under this Agreement; and that this Agreement is the legal, valid
and binding obligation of Phoenix and is enforceable against it in accordance
with its terms.
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7. Dispute Resolution. The Parties will seek to resolve any dispute
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arising under this Agreement by good faith negotiation. In the event negotiation
fails, the dispute shall be resolved by arbitration before a panel of three
arbitrators under the Commercial Arbitration Rules of the American Arbitration
Association, by which the Parties agree to be bound, or by such other
alternative dispute mechanism to which the Parties otherwise agree in writing.
8. Binding Effect: Successors. This Agreement shall be binding on
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and inure to the benefit of the Parties and their respective successors and
assigns.
9. Authority to Execute. Each person executing this Agreement on
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behalf of the Parties represents that he or she is authorized to agree to its
terms by the Party on whose behalf he or she is acting.
10. No Third Party Rights. This Agreement does not create rights
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in third parties, including, without limitation, third party beneficiary rights.
11. Counterpart Originals. This Agreement may be executed in its
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original version or in copies, counterparts, or other such duplicate versions.
All signatures to this Agreement need not appear on the same version, and the
signatories may execute different versions, so long as they contain identical
provisions, and all such executed versions shall together constitute the
complete Agreement. The Agreement is complete and binding upon its execution
by all signatories.
12. Entire Agreement. This Agreement is the complete understanding
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and agreement of the Parties with respect to the subject matter of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Indemnification
Agreement by their duly authorized representatives.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
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Command Systems, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
Phoenix Home Life Mutual Insurance Company
By: /s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
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Name:
Title: Vice President
PHL Global Holding Co.
By: /s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
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Name:
Title: Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
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