Exhibit 10.4
INDEMNIFICATION AND STOCK OPTION
AGREEMENT
THIS AGREEMENT (the "Agreement") is made
and entered into as of March 1, 2009 by and among Lumea,
Inc., a Nevada corporation ("Lumea"), EMTA Holdings,
Inc., a Nevada corporation ("EMTA") and Cliff Blake
("Indemnitee").
RECITALS
Lumea and EMTA are parties to an Asset Purchase
Agreement dated as of the date of this Agreement (the "Asset
Purchase Agreement") by and among Lumea, EMTA, Easy Staffing
Services, Inc., a Delaware corporation ("Easy"), and Easy's
subsidiaries ESSI, Inc., a Delaware corporation ("ESSI"),
and Easy Staffing Solutions, Inc., an Illinois corporation
f/k/a Burton Placement Services, Inc. ("Burton").
Indemnitee is a personal guarantor on various
obligations of each of Easy, ESSI and Burton. Pursuant to the Asset
Purchase Agreement, Lumea assumed some, but not all, of the
liabilities of Easy, ESSI and Burton as part of its acquisition of
the assets of each company. Under the Asset Purchase Agreement,
Lumea will issue to Easy a Promissory Note in an amount
substantially equal to the non-assumed liabilities (the
"Promissory Note").
Lumea and EMTA agreed to indemnify Indemnitee
from and against certain liabilities arising out of the
transactions contemplated by the Asset Purchase Agreement, as well
as continuation of various personal guarantees provided by
Indemnitee, and to grant to Indemnitee an option to purchase shares
of common stock of EMTA while the Promissory Note remains unpaid
and the personal guarantees exist.
AGREEMENT
1.1.
Lumea and EMTA, jointly and severally (referred to as the
"Indemnitor") shall defend, indemnify and hold Indemnitee
harmless from and against all claims, liabilities, costs and
expenses (including, but not limited to, those related to death or
personal injury) arising from or connected with Lumea's failure to
timely pay when due, or perform, any of the debts or obligations
arising out of the Assumed Liabilities or the Contracts assigned to
Lumea under the Asset Purchase Agreement.
1.2.
Indemnifiable Loss. An Indemnifiable Loss means the
aggregate of Losses and Litigation Expenses where:
(i) "Losses"
means any liability, loss, claim, settlement payment, cost and
expense, interest, award, judgment, damages (including punitive
damages to the extent permitted by applicable law), diminution in
value, fines, fees and penalties or other charge, other than a
Litigation Expense; and
(ii)
"Litigation Expense" means any court filing fee, court cost,
arbitration fee or cost, witness fee, and each other fee and cost
of investigating and defending or asserting any claim for
indemnification under this Agreement, including, without
limitation, in each case, attorney's fees, and other professional's
fees, and disbursements.
1.3.
Claims Procedure. All claims for indemnification of
Indemnitee to Indemnitor to provide shall be asserted and resolved
as follows:
(i) In
the event that any claim or demand for which Indemnitor would be
liable to Indemnitee hereunder is asserted against or sought to be
collected from Indemnitee by a third party, Indemnitee shall
promptly notify Indemnitor in writing of such claim or demand,
specifying the nature of such claim or demand and the amount or the
estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of such claim
or demand) (collectively the "Claim Notice"). Indemnitor
shall notify Indemnitee promptly (A) whether or not Indemnitor
disputes the liability of Indemnitor to Indemnitee hereunder with
respect to such claim or demand and (B) whether or not Indemnitor
desires, at the sole cost and expense of Indemnitor, to defend
Indemnitee against such claim or demand. Subject to Section 1.3(ii)
below, in the event that Indemnitor notifies Indemnitee that
Indemnitor will defend Indemnitee against such claim or demand,
Indemnitor shall have the right to defend by appropriate
proceedings, provided that Indemnitor and its counsel (which
counsel must be approved by Indemnitee, such approval not to be
unreasonably withheld) shall proceed with diligence and good faith
with respect thereto. If Indemnitee desires to participate in, but
not control, any such defense or settlement, Indemnitee may do so
at its sole cost and expense. Indemnitor shall not settle such
claim or demand without prior reasonable consultation with
Indemnitee and without the prior written consent of Indemnitee
(which consent shall not be unreasonably withheld).
(ii) If,
in the reasonable opinion of Indemnitee, notice of which shall be
given in writing to Indemnitor, (A) any such claim or demand
described in Section 1.3(i) above seeks material prospective relief
which could have a material adverse effect on the assets,
liabilities, financial condition, results of operations, public
image, business or business prospects of Indemnitee, or (B)
Indemnitee reasonably determines in good faith that its interests
with respect to such claim or demand cannot appropriately be
represented by Indemnitor, then Indemnitee shall have the right to
assume control of the defense of such claim or demand and the
amount of any judgment or settlement together with the reasonable
costs and expenses of defense shall be included as part of the
indemnification obligations of Indemnitor hereunder; provided,
however, that no settlement of such claim or demand may be made
without prior reasonable consultation with Indemnitor and without
the prior written consent of Indemnitor (which consent shall not be
unreasonably withheld). If Indemnitee should elect to exercise the
right under this Section, Indemnitor shall have the right to
participate in, but not control, the defense of such claim or
demand at the sole cost and expense of Indemnitor.
(iii) Regardless
of which party is controlling the defense of any claim, (A) both
Indemnitor and Indemnitee shall act in good faith, (B) the
controlling party shall deliver, or cause to be delivered, to the
other party, copies of all correspondence, studies, reports,
pleadings, motions, briefs, appeals or other written statements
relating to or submitted in connection with the third-party claim
or demand and with the defense of any such claim or demand, and
timely notices of, and the right to participate in (as an
observer), any hearing or other court proceeding relating to such
claim or demand, and (C) the other party shall cooperate fully with
the controlling party with respect to access to individuals, books,
records, or other documentation within such other party's direct or
indirect control, if deemed necessary or appropriate by the
controlling party in the defense of any claim or demand.
(iv) If
Indemnitor does not elect under Section 1.3(i) above to defend
Indemnitee, or if Indemnitor elects to defend Indemnitee but does
not proceed with diligence and in good faith, then Indemnitee shall
have the right to take over control of any defense and settlement
of such claim or demand (and shall, so long as any legal rights are
not jeopardized, notify Indemnitor not less than ten (10) days in
advance of the reasons for the defense being taken over), and the
reasonable costs and expenses of defe
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