As of March 27, 2000
INDEMNIFICATION AGREEMENT
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PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
In connection with that certain Financial Advisory Services Agreement,
dated of even date herewith (the "Advisory Agreement") between Prudential
Securities Incorporated ("Prudential Securities") and meVC Xxxxxx Xxxxxx
Jurvetson Fund I, Inc. (the "Company"), the Company hereby agrees to indemnify
and hold harmless Prudential Securities and its affiliates, their respective
directors, officers, controlling persons (within the meaning of Section 15 of
the Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of
1934), if any, agents and employees of Prudential Securities or any of
Prudential Securities' affiliates (collectively, "Indemnified Persons" and
individually, an "Indemnified Person") from and against any and all claims,
liabilities, losses, damages and expenses incurred by any Indemnified Person
(including fees and disbursements of Prudential Securities and counsel to an
Indemnified Person) which (A) are related to or arise out of (i) actions taken
or omitted to be taken (including any untrue statements made or any statements
omitted to be made) by the Company or (ii) actions taken or omitted to be taken
by an Indemnified Person with the Company's consent in conformity with the
Company's instructions or (B) are otherwise related to or arise out of
Prudential Securities' engagement as set forth in the Advisory Agreement, and
will reimburse Prudential Securities and any other Indemnified Person for all
costs and expenses, including those incurred by Prudential Securities and
counsel to an Indemnified Person, as they are incurred, in connection with
investigating, preparing for, or defending any action, formal or informal claim,
investigation, inquiry or other proceeding, whether or not in connection with
pending or threatened litigation, caused by or arising out of or in connection
with Prudential Securities acting pursuant to paragraph 2 of the Advisory
Agreement, whether or not Prudential Securities or any Indemnified Person is
named as a party thereto and whether or not any liability results therefrom. The
Company will not, however, be responsible for any claims, liabilities, losses,
damages or expenses pursuant to the preceding sentence which are finally
judicially determined to have resulted primarily from Prudential Securities' bad
faith, gross negligence or willful misconduct. The Company also agrees that
neither Prudential Securities nor any other Indemnified Person shall have any
liability to the Company for or in connection with such Advisory Agreement
except for any such liability for claims, liabilities, losses, damages or
expenses incurred by the Company which are finally judicially determined to have
resulted primarily from Prudential Securities' bad faith, gross negligence or
willful misconduct. The Company further agrees that the Company will not,
without the prior written consent of Prudential Securities, 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 may be sought
hereunder (whether or not Prudential Securities or any Indemnified Person is an
actual or potential party to such claim,
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action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of Prudential Securities and each other
Indemnified Person hereunder from all liability arising out of such claim,
action, suit or proceeding.
In order to provide for just and equitable contribution, if a claim
for indemnification is made pursuant to these provisions but is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason (except, with respect
to indemnification sought solely pursuant to clause (B), the reasons specified
in the second sentence of the first paragraph thereof), even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and Prudential Securities, on the other hand, shall contribute to
such claim, liability, loss, damage or expense for which such indemnification or
reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to the Company, on the one hand, and Prudential
Securities, on the other hand, in connection with the transactions contemplated
by the Advisory Agreement, subject to the limitation that in any event
Prudential Securities' aggregate contribution to all losses, claims, damages,
liabilities and expenses to which contribution is available hereunder shall not
exceed the amount of fees actually received by Prudential Securities pursuant to
the Advisory Agreement.
The foregoing right to indemnity and contribution shall be in addition
to any rights that Prudential Securities and/or any other Indemnified Person may
have at common law or otherwise and shall remain in full force and effect
following the completion or any termination of the Advisory Agreement. The
Company hereby consents to personal jurisdiction and to service and venue in any
court in which any claim which is subject to this agreement (the
"Indemnification Agreement") is brought against Prudential Securities or any
other Indemnified Person. The Company hereby designates and appoints CT
Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx as its agent to receive on
its behalf service of all process in any action, suit or proceeding on such
claim in any such court, such service being hereby acknowledged by the Company
to be effective and binding service in every respect. The Company hereby
irrevocably waives and agrees not to assert, in any action or proceeding with
respect to this Indemnification Agreement, any claim that (a) it is not
personally subject to the jurisdiction of the aforesaid courts, (b) it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process, (c) the action or proceeding is brought in an inconvenient forum
or (d) the venue of the action or proceeding is improper.
EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS
INDEMNIFICATION AGREEMENT.
It is understood that, in connection with Prudential Securities'
engagement pursuant to the Advisory Agreement, Prudential Securities may also be
engaged to act for the Company in one or more additional capacities, and that
the terms of this engagement or any such additional engagement may be embodied
in one or more separate written agreements. This Indemnification Agreement shall
apply only to the engagement set forth in Advisory Agreement
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and any modification thereto and shall remain in full force and effect following
the completion or termination of said engagement.
The benefits of this Indemnification Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their respective successors, assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and assigns. This Indemnification Agreement may not be
assigned without the prior written consent of the nonassigning party.
This Indemnification Agreement may not be amended or modified except
in a writing signed by the party against whom enforcement is sought and shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
The Company further understands that if a public offering of the
Company's Common Shares occurs and Prudential Securities participates therein,
the underwriting agreement relating thereto will provide for indemnification and
contribution as described in that agreement and this Indemnification Agreement
(a) insofar as it relates to Prudential Securities' engagement set forth in the
Advisory Agreement and any modification thereto, shall survive and (b) insofar
as it relates to such public offering, shall be superseded by the provisions of
such underwriting agreement.
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Very truly yours,
MEVC XXXXXX XXXXXX JURVETSON
FUND I, INC.
By:
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Name
Title:
AGREED AND ACCEPTED:
PRUDENTIAL SECURITIES INCORPORATED
By:
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Name
Title:
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