INDEMNIFICATION AGREEMENT
LOST STOCK CERTIFICATE
THIS INDEMNIFICATION AGREEMENT made this 12th day of June, 2001 by and between
Westminster Securities Corp., a New York corporation with an office located at
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Westminster"), and Xxxxxxx Global
Corporation, a Delaware corporation with an address of 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "LGS").
WHEREAS, LGS is the owner of 997 shares of the Class A Common Stock of
Westminster, par value $1.00 per share, which amount equals 99.7% of the issued
and outstanding shares of common stock of Westminster (collectively, the
"Westminster Common Stock");
WHEREAS, Westminster wishes to purchase the Westminster Common Stock
from the LGS;
WHEREAS, LGS desires to sell the Westminster Common Stock to the
Westminster, upon the terms and conditions hereinafter set forth;
WHEREAS, the parties entered into an Amended and Restated Stock
Purchase Agreement dated June 7, 2001 (the "Agreement") which provided, among
other terms, for the sale of the Westminster Common Stock; and
WHEREAS, LGS has been unable to find the stock certificate representing
the Westminster Common Stock.
NOW, THEREFORE, in consideration of the mutual premises and the
representations, warranties, covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. ACCEPTANCE: Westminster agrees to accept, in lieu of the original stock
certificate representing the Westminster Common Stock (the "Share
Certificate") an affidavit of Lost Certificate from a duly authorized
officer of LGS in the form annexed hereto as Exhibit A.
2. DELIVERY OF INDEMNITY: The acceptance of such affidavit is subject to
LGS providing the indemnity set forth herein to Westminster.
3. INDEMNITY:
a. LGS hereby agrees to indemnify and hold Westminster, and its
employees, shareholders, officers, directors, permitted assignees and
licensees (jointly and severally
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referred to in this Paragraph as "Indemnitees") harmless from and
against any and all losses, damages, costs, claims, judgements,
penalties, fines and expenses (including reasonable attorney's fees) or
recoveries (including any amounts paid in settlement) arising out of or
connected with any action, suit, proceeding or claim by a third party,
whether civil, criminal or administrative in nature, which is reduced
to final judgment or settled with the written consent of LGS, which is
caused by or arises out of or is sustained or incured as a result of
any claim made by reason of that fact the Share Certificate, as a
result of the loss by LGS of the Share Certificate, may be in , or may
hereafter come into the possession of any person, firm or corporation,
or as a result of the fact that the Share Certificate has not been and
will not be delivered in accordance with the Agreement.
i. No such suit or other action shall be settled without
the prior written consent of LGS, who shall be held
responsible and which consent shall not be unreasonably
withheld, delayed or conditioned.
ii. The rights and remedies of the Indemnitees pursuant to
this Paragraph shall be in addition to any other rights or
remedies which they may have against LGS and shall be without
prejudice to same.
b. Notice for Indemnity: If the Indemnitees wish to assert their rights
to be defended and held harmless as set forth above they must:
i. Promptly notify LGS of any claim or legal proceeding
which gives rise to such right;
ii. Afford LGS the opportunity to participate and fully
control any compromise, settlement or other resolution or
disposition of such claim or proceeding; and
iii. Fully cooperate with the reasonable requests of LGS, at
the expense of LGS, in its participation in, and control,
compromise, settlement or resolution or other disposition of
such claim or proceeding.
4. TERM OF THIS INDEMNIFICATION AGREEMENT. This Indemnification Agreement
shall survive for a period of three (3) years from the date hereof.
5. ADVANCEMENT OF EXPENSES AND COSTS. All reasonable expenses and costs,
with respect to a claim covered by this Indemnification Agreement, incurred by
Indemnitees (including attorneys' fees, retainers and advances of disbursements
required of Indemnitees) shall be paid by LGS in advance of the final
disposition of such action, suit or proceeding at the request of any Indemnitee
within twenty days after the receipt by LGS of a statement or statements from
Westminster requesting such advance or advances from time to time. Indemnitees'
entitlement to such expenses shall include those incurred in connection with any
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proceeding by Indemnitees seeking an adjudication or award in arbitration
pursuant to this Indemnification Agreement. Such statement or statements shall
reasonably evidence the expenses and costs incurred by Indemnitees in connection
therewith and shall include or be accompanied by an undertaking, in form and
substance reasonably satisfactory to LGS, by or on behalf of such Indemnitee to
repay such amount if it is ultimately determined that such Indemnitee is not
entitled to be indemnified against such expenses and costs by LGS as provided by
this Indemnification Agreement or otherwise.
6. PLEDGE OF COLLATERAL.
a. As collateral for the prompt payment of all amounts to which
Indemnitees are entitled hereunder, whether in the form of an advancement or a
reimbursement of expenses, fees and costs, LGS hereby pledges all amounts due
under that certain Promissory Note executed by Westminster in favor of LGS in
connection with the Agreement in the principal amount of $300,000 ("Promissory
Note"). Where there is agreement or an adjudication of an obligation by LGS to
the Indemnitees hereunder, LGS hereby grants Westminster a right of set off
against any amount due and owing to LGS under the Promissory Note where LGS does
not otherwise make payment of such obligation.
b. Notwithstanding the foregoing, nothing herein shall relieve
Westminster of the obligation to make timely payment as provided in the
Promissory Note, it being understood that the pledge only extends to amounts due
under the Promissory Note as of the time of an actual claim hereunder. No
portion of the pledge shall be deemed retroactive and all payments under the
Promissory Note, once made, shall be the property of LGS without any specific
claim thereon.
7. NOTICES:
a. Any notice to be given hereunder shall be sent by registered or
certified mail, return receipt requested, by recognized overnight courier (e.g.
Federal Express), telecopy to a facsimile number provided by the respective
party, or by delivering the same personally to a party at the addresses first
set forth herein. Any party may designate a different address by notice so
given.
b. Any notice mailed, sent by courier or personally delivered as
aforesaid shall be deemed to have been given on the date of receipt; telecopies
shall be deemed received on the business day after being sent by telecopy.
8. MISCELLANEOUS:
a. Controlling Law: This Indemnification Agreement shall be
construed and interpreted in accordance with the law of the State of New York,
applicable to contracts entered into and to be performed fully therein without
reference to the principles of conflict of laws.
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b. Headings: Paragraph heading are used for convenience only and
shall not be referred to in the interpretation of this Indemnification
Agreement.
c. Entire Agreement: This Indemnification Agreement sets forth the
entire agreement between the parties relative to the indemnity described herein
and replaces and supersedes all other understandings, commitments and agreements
relating to the indemnity.
d. Modification, Amendment: This Indemnification Agreement cannot be
modified, altered, amended or otherwise changed except by an agreement in
writing signed by the parties hereto.
e. Binding Effect Of Indemnification Agreement: This Indemnification
Agreement shall be binding not only on the parties hereto, but also on their
heirs, executors, administrators, successors, and assigns.
f. Severability: The provisions of this Indemnification Agreement
are severable. To the extent any provision, portion or extent of this
Indemnification Agreement is determined to be invalid, illegal or otherwise
unenforceable, then that provision, portion or extent will be limited if
possible and only thereafter severed if necessary. Any such limitation or
severing shall only be to the extent necessary to render the Indemnification
Agreement valid and enforceable. The remaining provisions, portions and extent
of the Indemnification Agreement will be enforced to give effect to the
intention of the parties insofar as possible.
g. Effect of a Waiver: No waiver of a provision of this
Indemnification Agreement shall be deemed a waiver of any other provisions, nor
shall a waiver of the performance of a provision in one or more instances be
deemed a waiver of future performance thereof.
h. Counterparts: This Indemnification Agreement may be executed in
counterparts, all of which taken together shall be deemed one (1) original.
i. Additional Documents: The parties agree that they will execute,
or cause to be executed, such other documents as may be necessary to carry out
the purposes of this Indemnification Agreement.
j. Express & Implied Promises: The parties acknowledge that no other
party, or any agent or attorney of any other party, has made any promise,
representation or warranty whatsoever, express or implied, not contained herein
concerning the subject matter hereof, to induce them to execute this
Indemnification Agreement, and acknowledge that they have not executed this
instrument in reliance on any such promise, representation or warranty not
contained herein, and further acknowledge that there are no other agreements or
understandings between the parties relating to this Indemnification Agreement
that are not contained herein.
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IN WITNESS HEREOF the parties have executed this agreement as of the day and
year first set forth above.
XXXXXXX GLOBAL CORPORATION WESTMINSTER SECURITIES CORP.
By By
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Authorized Signator Authorized Signator
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