June 15, 1998
Averil Associates, Inc.
833 17th Street, Suite Six
Santa Monica, CA 90403
Attn: Diana L. Maranon
Ladies and Gentlemen:
In connection with your engagement as our financial advisor pursuant to a
letter agreement, dated June 15, 1998 (as such agreement may be amended from
time to time, the "Agreement"), between you and us, we hereby agree to
indemnify and hold harmless you and your affiliates, and your respective
directors, officers, agents, employees and controlling persons, and each of
their respective successors and assigns (collectively, the "indemnified
persons"), to the full extent lawful, from and against all losses, claims,
damages, liabilities and expenses (or actions in respect thereof) that are
related to or arise out of (i) actions or alleged actions taken or omitted to
be taken (including any untrue statements made or any statements omitted to
be made) by us or any of our affiliates, directors, officers, employees or
agents, (ii) actions or alleged actions taken or omitted to be taken by an
indemnified person (including acts or omissions constituting ordinary
negligence) pursuant to the terms of, or in connection with services rendered
pursuant to or in accordance with the terms of, the Agreement or any
transaction or proposed transaction contemplated thereby or any indemnified
person's role in connection therewith, or (iii) any untrue statement or
alleged untrue statement of a material fact contained in any offering
materials or in any amendment or supplement thereto, or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading. We will not be responsible,
however, for any losses, claims, damages, liabilities or expenses pursuant to
clause (ii) of the preceding sentence that are finally judicially determined
to have resulted primarily from the gross negligence or willful misconduct of
the person seeking indemnification hereunder. We also agree that (i) no
indemnified person shall have any liability to us or any of our affiliates,
directors, officers, employees or agents except for losses, claims, damages,
liabilities or expenses incurred by us in connection with the transaction
that are finally judicially determined to have resulted primarily from the
gross negligence or willful misconduct of such indemnified person; and (ii)
in no event shall the indemnified persons' aggregate liability in connection
with such losses, claims, damages, liabilities and expenses exceed the fees
you actually receive from us pursuant to the Agreement.
Promptly after receipt by an indemnified person of notice of any complaint or
the commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such person will notify us in
writing of such complaint or of the commencement of such action or
proceeding. We will not, without the prior written consent of you, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not you
or any other indemnified person is an actual or potential party to such
claim, action, suit or proceeding).
We agree that if any indemnification sought by an indemnified person pursuant
to this letter agreement is held by a court to be unavailable for any reason
other than as specified in the second sentience of the first paragraph of
this letter agreement, then we will contribute to the losses, claims,
damages, liabilities and expenses for which such indemnification is held
unavailable (i) in such proportion as is appropriate to reflect the relative
benefits to us, on the one hand, and you, on the other hand, in connection
with your engagement referred to above, or (ii) if the allocation provided by
clause (i) above in this paragraph is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) in this paragraph, but also the relative fault of
us, on the one hand, and you, on the other hand, as well as any other
relevant equitable considerations; PROVIDED HOWEVER, that in any event the
aggregate contribution by all indemnified persons to all losses, claims,
damages, liabilities and expenses with respect to which contribution is
available hereunder will not exceed the amount of fees actually received by
you from us pursuant to your engagement referred to above. It is hereby
agreed that for purposes of this paragraph, the relative benefits to us, on
the one hand, and you, on the other hand, with respect to your engagement
shall be deemed to be in the same proportion as (i) the total value paid or
proposed to be paid or received by us or our stockholders, as the case may
be, pursuant to the transaction, whether or not
consummated, for which you are engaged to render financial advisory services,
bears to (ii) the fee paid or proposed to be paid to you in connection with
such engagement. It is agreed that it would not be just and equitable if
contribution pursuant to this paragraph were determined by pro rata
allocation or by any other method which does not take into account the
considerations referred to in this paragraph.
We further agree that we will promptly reimburse you and any other
indemnified person hereunder for all expenses (including fees and
disbursements of counsel) as they are incurred in connection with
investigating, preparing or defending any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder, whether or not in connection with
pending or threatened litigation in which any indemnified person is a party;
PROVIDED, HOWEVER; that we will have the right to mutually determine legal
counsel to represent you and any other indemnified person hereunder and will
have the right to manage any such legal process, so long as such management
does not adversely impair, hinder or otherwise jeopardize the rights or
defense of you or any other indemnified person hereunder.
Our indemnity, contribution and other obligations under this letter agreement
shall be in addition to any rights that you or any other indemnified person
may have at common law or otherwise, and shall be binding on our successors
and assigns.
We hereby consent to personal jurisdiction, service and venue in any court in
which any claim which is subject to, or which may give rise to a claim for
indemnification or contribution under, this letter agreement is brought
against you or any other indemnified person.
This letter agreement shall be deemed made in California. This letter
agreement and all controversies arising from or relating to performance under
this letter agreement shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to such state's
rules concerning conflicts of laws. ANY RIGHT TO TRIAL BY JURY WITH RESPECT
TO ANY CLAIM OR ACTION ARISING OUT OF THIS LETTER AGREEMENT OR ANY ENGAGEMENT
OF YOU IS HEREBY WAIVED.
It is understood that, in connection with your above-mentioned engagement,
you may also be engaged in writing to act in one or more additional
capacities, and that the terms of the original engagement or any such
additional engagement may be embodied in one or more separate written
agreements. The provisions of this letter agreement shall apply to the
original engagement, related activities prior to the date of the original
engagement, any such additional written engagement and any modification of
the original engagement or such additional written engagement and shall
remain in full force and effect following the completion or termination of
your engagement(s).
Sincerely,
FUTURE MEDIA PRODUCTIONS
By:
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Alex Sandel
Dated:
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Accepted:
AVERIL ASSOCIATES, INC.
By:
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Diana L. Maranon
Dated:
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