Exhibit 10.2
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INDEMNIFICATION AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of August
1, 2005, between Metromedia International Group, Inc., a Delaware corporation
(the "Indemnitor"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Indemnitee").
WHEREAS, the Indemnitor has entered into that certain Share Purchase
Agreement (as amended, supplemented or modified from time to time in accordance
with its terms, the "Purchase Agreement"), dated as of February 17, 2005, by and
among the Indemnitor, First National Holding S.A., a societe anonyme organized
under the laws of Luxembourg ("FNH"), Emergent Telecom Ventures S.A., a societe
anonyme organized under the laws of Switzerland ("ETV"), and Pisces Investment
Limited, a company organized under the Companies Law of Cyprus and wholly-owned
subsidiary of FNH and ETV, pursuant to which the Company has agreed to sell its
entire interest in NWE Capital (Cyprus), Ltd., a company organized under the
Companies Law of Cyprus whose sole asset is a 71% interest in PeterStar ZAO, a
closed joint stock company organized under the laws of the Russian Federation
("PeterStar");
WHEREAS, in connection with the closing of the transaction contemplated
by the Purchase Agreement, FNH and PeterStar have requested that the Indemnitee
remain as a director of PeterStar;
WHEREAS, to induce the Indemnitee remain as a director of PeterStar,
the Indemnitor desires to provide Indemnitee with full indemnification against
litigation risks and expenses; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing to serve as a director of PeterStar.
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Indemnitor and the Indemnitee do hereby covenant and agree
as follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served as a Director, including as a member of any committee of
the board of directors of PeterStar.
(b) "Director" shall mean a member of the board of directors
of PeterStar.
(c) "Expenses" shall mean all fees, costs and expenses
incurred in connection with any Proceeding (as defined below), including,
without limitation, reasonable attorneys' fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Sections 4 and 6(b) of this Agreement), fees
and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers),
court costs, transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges, postage,
delivery services, secretarial services and other disbursements and expenses.
Indemnification Agreement - Page 2
(d) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in settlement.
(e) "Proceeding" shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other proceeding,
whether civil, criminal, administrative, arbitrative or investigative, whether
formal or informal, including a proceeding initiated by Indemnitee pursuant to
Section 6 of this Agreement to enforce Indemnitee's rights hereunder.
2. Agreement to Indemnify. The Indemnitor agrees to indemnify
Indemnitee as follows:
If Indemnitee was or is a party or is threatened to be made a
party to any Proceeding by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Indemnitor against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding (referred to
herein as "Indemnifiable Expenses" and "Indemnifiable Liabilities",
respectively, and collectively as "Indemnifiable Amounts").
3. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Indemnitor a written request specifying the Indemnifiable Amounts
for which Indemnitee seeks payment under Section 2 of this Agreement. The
Indemnitor shall pay such Indemnifiable Amounts to Indemnitee within ten (10)
calendar days of receipt of the request.
4. Agreement to Advance Expenses. The Company shall pay to Indemnitee
all Indemnifiable Expenses incurred by Indemnitee in connection with any
Proceeding, including a Proceeding by or in the right of the Company, in advance
of the final disposition of such Proceeding, as the same are incurred.
5. Procedure for Advance Payment of Expenses. Indemnitee shall submit
to the Indemnitor a written request specifying the Indemnifiable Expenses for
which Indemnitee seeks an advancement under Section 4 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 4 shall
be made no later than ten (10) calendar days after the receipt of such request
by the Indemnitor.
6. Reduction for Amounts Paid by Others. The Indemnitor's obligation to
indemnify or advance Indemnifiable Amounts hereunder to Indemnitee shall be
reduced by any amount Indemnitee has actually received as indemnification or
advancement of expenses from FNH or PeterStar or otherwise pursuant to that
certain Indemnification Agreement, entered into as of August 1, 2005, between
FNH, PeterStar and Indemnitee (the "FNH/PeterStar Indemnity Agreement"). To the
extent the Indemnitor indemnifies or advances Indemnifiable Amounts hereunder to
Indemnitee that are subsequently indemnified or advanced to Indemnitee pursuant
to the FNH/PeterStar Indemnity Agreement, Indemnitee shall promptly notify
Indemnitor and return such Indemnifiable Amounts to Indemnitor in accordance
with instructions provided by Indemnitor promptly following such notification.
Indemnification Agreement - Page 3
7. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee
makes a request for payment of Indemnifiable Amounts under Sections 2 and 3
above or a request for an advancement of Indemnifiable Expenses under Sections 4
and 5 above and the Indemnitor fails to make such payment or advancement in a
timely manner pursuant to the terms of this Agreement, Indemnitee may petition a
court of law to enforce the Indemnitor's obligations under this Agreement.
(b) Expenses. The Indemnitor agrees to reimburse Indemnitee in
full for any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 7(a) above, or in connection with any claim or
counterclaim brought by the Indemnitor in connection therewith.
(c) Validity of Agreement. The Indemnitor shall be precluded
from asserting in any Proceeding, including, without limitation, an action under
Section 7(a) above, that the provisions of this Agreement are not valid, binding
and enforceable or that there is insufficient consideration for this Agreement
and shall stipulate in court that they are each bound by all the provisions of
this Agreement.
8. Representations and Warranties of the Indemnitor. The Indemnitor
hereby represents and warrants to Indemnitee as follows:
(a) Authority. The Indemnitor has all necessary power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Indemnitor.
(b) Enforceability. This Agreement, when executed and
delivered by the Indemnitor in accordance with the provisions hereof, shall be a
legal, valid and binding obligation of the Indemnitor, enforceable against the
Indemnitor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors' rights generally.
9. Fees and Expenses. During the term of the Indemnitee's service as a
Director, the Indemnitor shall promptly reimburse the Indemnitee for all
expenses incurred by Indemnitee in connection with his service as a Director or
member of any committee of the board of directors of PeterStar or otherwise in
connection with PeterStar's business.
10. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, PeterStar's by-laws or
certificate of incorporation, or any other agreement, vote of stockholders or
the board of directors of PeterStar (or any committee thereof), or otherwise,
both as to action in Indemnitee's official capacity or Indemnitee's Corporate
Status and as to action in any other capacity as a result of Indemnitee's
serving as a Director.
Indemnification Agreement - Page 4
11. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Indemnitor (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Indemnitor and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
12. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
13. Modifications and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by each of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
14. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If to Indemnitee, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Metromedia International Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to the Indemnitor, to:
Metromedia International Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Board of Directors
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Indemnification Agreement - Page 6
or to such other address as may have been furnished in the same manner by any
party to the others.
15. Governing Law; Jurisdiction. Each of the parties hereto: (a)
irrevocably and unconditionally submits to the exclusive jurisdiction of the
courts of the State of New York and of the federal courts sitting in the State
of New York with respect to all actions and proceedings arising out of or
relating to this letter agreement and the transactions contemplated hereby; (b)
agrees that all claims with respect to any such action or proceeding shall be
heard and determined in such courts and agrees not to commence any action or
proceeding relating to this letter agreement or the transactions contemplated
hereby except in such courts; (c) irrevocably and unconditionally waives any
objection to the laying of venue of any action or proceeding arising out of this
letter agreement or the transactions contemplated hereby and irrevocably and
unconditionally waives the defense of an inconvenient forum; and (d) irrevocably
appoints The Corporation Trust Company in the case of the Indemnitor as its
agent for the sole purpose of receiving service of process or other legal
summons in connection with any such dispute, litigation, action or proceeding
brought in such courts and agrees that it will maintain The Corporation Trust
Company in the case of the Indemnitor at all times as its duly appointed agent
in the State of New York for the service of any process or summons in connection
with any such dispute, litigation, action or proceeding brought in such courts
and, if it fails to maintain such an agent during any period, any such process
or summons may be served on it by mailing a copy of such process or summons to
it in accordance with, and in the manner provided in, Section 13 of this
Agreement, with such service deemed effective on the fifth day after the date of
such mailing.
16. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. This Agreement, to the extent signed
and delivered by means of a facsimile machine or electronic mail in .pdf file
format, will be treated in all manner and respects as an original agreement and
will be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person.
Signature Page to Director Indemnification Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
METROMEDIA INTERNATIONAL GROUP, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Chief Financial Officer
INDEMNITEE
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇