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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
(LegacyMaker, Inc.)
This Indemnification Agreement is made and entered into as of
_____________, 1999 between Cafe Odyssey, Inc., a Minnesota corporation
("Buyer") and LegacyMaker, Inc., a Delaware corporation ("LegacyMaker").
WHEREAS, simultaneous with the execution of this Indemnification
Agreement, Buyer, Stephen D. King ("King"), popmail.com, Inc., a Delaware
corporation (the "Company"), the Company's shareholders and Cafe Odyssey
Acquisition Subsidiary, Inc., a Delaware corporation and a wholly owned
subsidiary of Buyer ("Merger Subsidiary"), propose to enter into an Agreement
and Plan of Merger contemplating the merger of the Company with and into Merger
Subsidiary (the "Merger Agreement").
WHEREAS, Buyer and LegacyMaker desire to enter into this Agreement
pursuant to which LegacyMaker agrees to indemnify and hold Buyer and its
officers, directors, employees, affiliates and shareholders (collectively, the
"Indemnitees") harmless from and against any and all losses, damages or
deficiencies resulting to any of the Indemnitees from (i) a breach of the
Company's representations, warranties and covenants contained in the Merger
Agreement or (ii) a claim brought by any shareholder of the Company relating to
the negotiation, authorization, approval, execution or consummation of the
Merger Agreement, in each case on the terms and conditions set forth below.
WHEREAS, LegacyMaker acknowledges that the execution of the Merger
Agreement by Buyer and King is contingent upon the execution of this Agreement
and LegacyMaker's agreement to the terms hereof. The availability to the
Indemnitees of the protections afforded to them by this Agreement are important
considerations in the decision of Buyer and King to enter into the Merger
Agreement, and Buyer and King are unwilling to consummate the Merger unless
LegacyMaker executes and delivers this Agreement to Buyer.
NOW, THEREFORE, in consideration of the above recitals, the mutual
promises and undertakings contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and LegacyMaker agree as follows:
1. Indemnification of the Indemnitees.
(a) The undersigned agrees to defend, indemnify and hold
harmless each of the Indemnitees from, against and in respect of (i) any and all
losses, damages or deficiencies resulting to any of the Indemnitees from (A) a
breach of the Company's representations, warranties, covenants or other terms
contained in the Merger Agreement or in any exhibit or schedule thereto or (B) a
claim by any present or former shareholder of the Company relating to the
negotiation, authorization, approval, execution or consummation of the Merger
Agreement by the Company, the solicitation by the Company of the authorization
and approval by its shareholders of the Merger Agreement and the Merger or any
public dissemination by the Company of any information regarding Buyer, the
Merger Agreement or the Merger; and (ii) and all costs and expenses incident to
any and all actions, suits, proceedings, claims, demands, assessments or
judgments in respect thereof regardless of the merit thereof, including
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reasonable legal and accounting fees and expenses (whether incident to the
foregoing or to an Indemnitee's enforcement of said rights of defense and
indemnity).
(b) It is the parties' intention that LegacyMaker's
obligations to defend, indemnify and hold harmless hereunder shall be without
monetary limit. The provisions regarding indemnification and the limitation on
the survival of the representations and warranties contained in Article 9 of the
Merger Agreement are hereby incorporated herein by this reference. Consequently,
and without limiting the generality of the foregoing, no claim for
indemnification in respect of the breach by the Company of a representation or
warranty set forth in the Merger Agreement may be made against LegacyMaker
hereunder or otherwise unless notice of such claim is delivered to LegacyMaker
on or before the last day upon which such representation or warranty survives
under Section 9.01 of the Merger Agreement.
2. Procedure for Indemnification of the Indemnitees. If any
action, suit or proceeding shall be commenced against any of the Indemnitees or
any claim, demand or assessment be asserted against any of the Indemnitees in
respect of which any Indemnitee proposes to demand indemnification from
LegacyMaker hereunder, such Indemnitee against whom such a claim, demand or
assessment is made or who proposes to demand indemnification from LegacyMaker
shall notify LegacyMaker to that effect with reasonable promptness. LegacyMaker
shall thereafter reimburse such Indemnitee for all of such Indemnitee's expenses
(as described herein) for such defense, as and when they are incurred.
3. Covenants of LegacyMaker. For so long as any of the Company's
representations, warranties and covenants contained in the Merger Agreement
survive, LegacyMaker shall not take any action for the purpose of avoiding, or
which could reasonably be expected to render it incapable of meeting, its
obligations hereunder to satisfy claims for indemnification, if any.
4. Amendment and Waiver. This Agreement may not be amended or
waived except in a writing executed by the party against whom such amendment or
waiver is sought to be enforced. No course of dealing between or among any
persons having any interest in this Agreement will be deemed effective to modify
or amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
5. Third Party Beneficiaries. All Indemnitees who are not
signatories hereto are expressly intended to be third party beneficiaries of
this Agreement.
6. Notices. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when personally delivered or
mailed by first class mail, return receipt requested, or when receipt is
acknowledged, if sent by facsimile, telecopy, e-mail or other electronic
transmission device. Notices, demands and communications to the Indemnitees and
LegacyMaker will, unless another address is specified in writing, be sent to the
address indicated below:
Notices to the Indemnitees: with a copy to:
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Cafe Odyssey, Inc. Maslon Edelman Borman & Brand, LLP
4801 West 81st Street, Suite 112 90 South Seventh Street
Bloomington, MN 55437 Minneapolis, MN 55402
Attention: Stephen D. King Attention: William M. Mower, Esq.
E-mail: steveking@pol.com E-mail: wmower@maslon.com
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Fax: (612) 837-9916 Fax: (612) 672-8397
Notices to LegacyMaker: with a copy to:
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LegacyMaker, Inc. Thompson & Knight, P.C.
1333 Corporate Drive, Suite 350 1700 Pacific Avenue, Suite 3300
Irving, TX 75038 Dallas, TX 75201
Attention: Toni Bryan, Attention: David L. Emmons, Esq.
Business Manager E-mail: emmonsd@tklaw.com
E-mail: tbryan@equitymedia.com Fax: (214) 969-1751
Fax: (972) 550-5517
7. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
8. Complete Agreement. This Agreement and the Merger Agreement
contain the complete agreement between the parties and supersede any prior
understandings, agreements or representations by or between the parties, written
or oral, which may have related to the subject matter hereof in any way.
8. Counterparts. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
9. Governing Law. The internal law, without regard to conflicts
of laws principles, of the State of Texas will govern all questions concerning
the construction, validity and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement.
10. Arbitration. Any dispute between any of the Indemnitees and
LegacyMaker under this Agreement shall be resolved by arbitration by an
arbitrator selected under the rules of the American Arbitration Association
(located in Dallas, Texas) and the arbitration shall be conducted in that same
location under the rules of said Association. The Indemnitees and LegacyMaker
shall each be entitled to present evidence and argument to the arbitrator. The
arbitrator shall have the right only to interpret and apply the provisions of
this Agreement and may not change any of its provisions. The arbitrator shall
permit reasonable pre-hearing discovery of facts, to the extent necessary to
establish a claim or a defense to a claim, subject to supervision by the
arbitrator. The determination of the arbitrator shall be conclusive and binding
upon the parties and judgment upon the same may be entered in any court having
jurisdiction thereof. The arbitrator shall give written notice to the parties
stating his determination, and shall furnish to each party a signed copy of such
determination.
11. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CAFE ODYSSEY, INC.
By:/s/ Ronald K. Fuller
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Ronald K. Fuller, President
LEGACYMAKER, INC.
By: signature illegible
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Name:
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Title:
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