Preview of our top selling Intercompany Indemnification Agreement
FTD - FORM OF INTERCOMPANY INDEMNIFICATION AGREEMENT
Exhibit 10.4
INTERCOMPANY INDEMIFICATION AGREEMENT
This Intercompany Indemnification Agreement (this "Agreement") is being entered into as of the __ day of June, 1999 and is entered into by and among and Florists' Transworld Delivery, Inc., a Michigan corporation ("FTDI"), FTD Corporation, a Delaware corporation ("FTDC") and ftd.com inc., a Delaware corporation (the "Company").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Dispute Period" means the period ending 30 days following receipt by an Indemnifying Party of a Claim Notice (as hereinafter defined).
1.2 "Indemnified Party" means any party seeking indemnity under this Agreement.
1.3 "Indemnifying Party" means the party from whom indemnification is sought under this Agreement.
1.4 "Loss" means any and all actual costs or expenses (including, without limitation, counsel's fees billed at standard hourly rates and expenses as and when incurred, in connection with any action, claim or proceeding relating thereto), judgments, amounts paid in settlement, fines, penalties, assessments and taxes. Notwithstanding the foregoing, Loss shall be reduced to reflect any insurance proceeds actually recovered by the Indemnified Party relating to such claim, provided that this reduction will not be applied if to do so would excuse any insurer from any obligation to cover any loss. If the Indemnified Party receives insurance proceeds after it receives indemnity hereunder, then the Indemnified Party, within 10 days of receipt of such proceeds, will pay to the Indemnifying Party the amount by which the Indemnifying Party's payment would have been reduced if the insurance proceeds had been received before the indemnity payments.
1.5 "Person" means any natural person, legal entity or other organized group of persons or entities.
1.6 "Subsidiary" with respect to any Person means any corporation, partnership or other entity for which more than 50% of the voting securities are directly or indirectly owned by such Person, except that the Company and its Subsidiaries shall not be deemed to be Subsidiaries of FTDC or FTDI, as the case may be.
1.7 "Third Party Claim" means all claims, suits, actions, proceedings, judgments, deficiencies, damages, settlements, liabilities, and legal and other expenses as and when incurred asserted by a Person other than the Company, FTDC or FTDI or any of their respective affiliates in respect of which an Indemnified Party might seek indemnity.
2. INDEMNIFICATION
2.1 Indemnification by the Company, FTDC and FTDI.
(a) The Company agrees to indemnify and hold FTDC and FTDI and their respective officers, directors, employees, subsidiaries, affiliates and agents harmless against and in respect of any and all Losses and Third Party Claims arising out of or based upon (i) the negligence or willful misconduct of the Company or any of its Subsidiaries, (ii) any breach by the Company of any agreement between the parties hereto that is described in or filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 333-78857) as the same may be amended (the "Form S-1"), (iii) all liabilities of the parties and their respective Subsidiaries (whenever arising, whether prior to, at or following the Effective Date, as hereinafter defined) arising out of or in connection with or otherwise relating to the management or conduct before or after the Effective Date of the business of the Company after May 19, 1999 and (iv) the failure by the Company or any of its Subsidiaries to pay, perform or otherwise promptly discharge any of its or its Subsidiaries' liabilities (whenever arising whether prior to, at or following the Effective Date).
(b) FTDC agrees to indemnify and hold the Company and each of its officers, directors, employees, subsidiaries, affiliates and agents harmless against and in respect of any and all Losses and Third Party Claims arising out of or based upon (A) the negligence or willful misconduct of FTDC or any of its Subsidiaries (other than the Company), (B) any breach by FTDC of any agreement between the parties hereto that is described in or filed as an exhibit to the Form S-1, (C) all liabilities of the parties and their respective Subsidiaries (whenever arising, whether prior to, at or following the Effective Date) arising out of or in connection with or otherwise relating to the management or conduct before or after the Effective Date of the business of FTDC, other than the business of the Company after May 19, 1999 and (D) the failure by FTDC or any of its Subsidiaries (other than the Company) to pay, perform or otherwise promptly discharge any of its or its Subsidiaries' (other than the Company) liabilities (whenever arising whether prior to, at or following the Effective Date).
(c) FTDI agrees to indemnify and hold the Company and each of its officers, directors, employees, subsidiaries, affiliates and agents harmless against and in respect of any and all Losses and Third Party Claims arising out of or based upon (A) the negligence or willful misconduct of FTDI or any of its Subsidiaries (other than the Company), (B) any breach by FTDI of any agreement between the parties hereto that is described in or filed as an exhibit to the Form S-1, (C) all liabilities of the parties and their respective Subsidiaries (whenever arising, whether prior to, at or following the Effective Date) arising out of or in connection with or otherwise relating to the management or conduct before or after the Effective Date of the business of FTDI, other than the business of the Company after May 19, 1999 and (D) the failure by FTDI or any of its Subsidiaries (other than the Company) to pay, perform or otherwise promptly discharge any of its or its Subsidiaries' (other than the Company) liabilities (whenever arising whether prior to, at or following the Effective Date).
(d) FTDC agrees to indemnify and hold FTDI and the Company and each of their respective officers, directors, employees, subsidiaries, affiliates and agents harmless against and in respect of any and all Losses incurred by any of them by reason of, or arising out of (i) any liability for income and franchise taxes arising out of the inclusion of FTDI, the Company
and any of their respective Subsidiaries in any consolidated federal income tax return, or any consolidated, combined or unitary state or local tax return, of FTDC, except for any such liability as is directly attributable to the operations of FTDI, the Company and any of their respective Subsidiaries, as the case may be, and (ii) any liability or obligations of any entity, whether or not incorporated, which is or was part of a controlled group or under common control with FTDI or the Company or otherwise treated as a "single employer" with FTDI or the Company within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") or under Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (other than FTDI, the Company or any of their respective Subsidiaries), with respect to any "employee benefit plan" (as defined in Section 3(3) of ERISA) established, maintained, sponsored or contributed to by such entity, including, but not limited to (A) liabilities for complete and partial withdrawals under any "multiemployer plan" (as defined in Section 3(37) of ERISA) pursuant to Section 4203 or 4205 of ERISA, respectively, (B) liabilities to the Pension Benefit Guaranty corporation (including without limitation, liabilities for premiums and terminations), (C) liabilities under Section 4980B of the code or Part 6 of Subtitle B of Title I of ERISA, and (D) liabilities arising under Section 412 of the Code or Section 302(a)(2) of ERISA.
(e) FTDI agrees to indemnify and hold the Company and its officers, directors, employees, subsidiaries, affiliates and agents harmless against and in respect of any and all Losses incurred by any of them by reason of, or arising out of (a) any liability for income and franchise taxes arising out of the inclusion of the Company and any Subsidiaries in any consolidated federal income tax return, or any consolidated, combined or unitary state or local tax return, of FTDI, except for any such liability as is directly attributable to the operations of the Company and any Subsidiaries, and (b) any liability or obligations of any entity, whether or not incorporated, which is or was part of a controlled group or under common control with the Company or otherwise treated as a "single employer" with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") or under Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (other than the Company or any Subsidiary), with respect to any "employee benefit plan" (as defined in Section 3(3) of ERISA) established, maintained, sponsored or contributed to by such entity, including, but not limited to (i) liabilities for complete and partial withdrawals under any "multiemployer plan" (as defined in Section 3(37) of ERISA) pursuant to Section 4203 or 4205 of ERISA, respectively; (ii) liabilities to the Pension Benefit Guaranty corporation (including without limitation, liabilities for premiums and terminations); (iii) liabilities under Section 4980B of the code or Part 6 of Subtitle B of Title I of ERISA; and (iv) liabilities arising under Section 412 of the Code or Section 302(a)(2) of ERISA.
2.2 Limitations. Notwithstanding anything to the contrary contained in this Agreement none of the Company, FTDC or FTDI will be entitled to indemnification pursuant to Section 2 of this Agreement with respect to any claim for indemnification unless, and only to the extent that, the aggregate of all Losses to the Indemnified Party exceeds $100,000 whereupon the Indemnifying Party will be obligated to pay in full the aggregate amount of the Losses (including such first $100,000).
2.3 Indemnification Procedure. All claims for indemnification by an Indemnified Party will be asserted and resolved as follows:
(a) In the event any Third Party Claim in respect of which an Indemnified Party might seek indemnity is asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver a notice (a "Claim Notice") with reasonable promptness to the Indemnifying Party, which Claim Notice shall include the amount of Loss claimed, to the extent known. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party, and whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim.
(b) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings must be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or may be settled at the discretion of the Indemnifying Party; provided, however, that the Indemnifying Party shall not be permitted to effect any settlement without the written consent of the Indemnified Party unless (x) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party, (y) such settlement involves no finding or admission of any wrongdoing, violation or breach by any Indemnified Party of any right of any other Person or any laws, contracts or governmental permits, and (z) such settlement has no effect on any other claims that may be made against or liabilities of any Indemnified Party. After giving the notice referred to in the first sentence of this clause (b), the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof (except as provided in the preceding sentence); provided, however, that the Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (b), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (b) and except as provided in the first sentence of this clause (b) and the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity with respect to such Third Party Claim.
(c) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to this Section or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim (in each case in accordance with clause (b) above), or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (w...
View agreement details