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INDEMNIFICATION AND STOCK OPTION AGREEMENT

Indemnification Agreement

INDEMNIFICATION AND STOCK OPTION AGREEMENT | Document Parties: EMTA HOLDINGS, INC. | Burton Placement Services, Inc | ESSI, Inc | ETMA Holdings, Inc | Lumea, EMTA, Easy Staffing Services, Inc | Lumea, Inc You are currently viewing:
This Indemnification Agreement involves

EMTA HOLDINGS, INC. | Burton Placement Services, Inc | ESSI, Inc | ETMA Holdings, Inc | Lumea, EMTA, Easy Staffing Services, Inc | Lumea, Inc

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Title: INDEMNIFICATION AND STOCK OPTION AGREEMENT
Governing Law: Arizona     Date: 3/16/2009
Industry: Chemical Manufacturing     Sector: Basic Materials

INDEMNIFICATION AND STOCK OPTION AGREEMENT, Parties: emta holdings  inc. , burton placement services  inc , essi  inc , etma holdings  inc , lumea  emta  easy staffing services  inc , lumea  inc
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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.            Indemnification.

 

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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