Exhibit 10.5 

 

**INDEMNIFICATION AGREEMENT**

 

This INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as of February 18, 2003 between TDK Mediactive, Inc., a Delawarecorporation (the “Company”), and Vincent J. Bitetti (“Indemnitee”), an officer and director of the Company. 

 

**RECITALS**

 

**WHEREAS**, the Company is aware that because of the increased exposure to litigation subjecting employees, officers and directors to expensivelitigation risks, talented and experienced persons are increasingly reluctant to serve or continue to serve as employees, directors and officers of corporations unless they are appropriately indemnified; 

 

**WHEREAS**, the Company is also aware that statutes and judicialdecisions regarding the duties of employees, directors and officers are often difficult to apply, ambiguous or conflicting and therefore fail to provide directors with adequate guidance regarding the proper course of action; 

 

**WHEREAS**, the Company desires to attract and retain the services ofhighly experienced and capable individuals, such as Indemnitee, to serve as employees, officers and directors of the Company and to indemnify its employees, officers and directors so as to provide them with the maximum protection permitted by law;and 

 

**WHEREAS**, the Company believes that it is fair andproper to protect the Company’s employees, officers and directors from the risk of judgments, settlements and other expenses which may occur as a result of their service to the Company, even in cases in which such persons received no personalprofit or were not otherwise culpable. 

 

**NOW, THEREFORE**,in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Indemnitee, intending to be legally bound, hereby agree as follows: 

 

**AGREEMENT**

 

SECTION 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below:

 

(a) “*Change of Control*”shall be deemed to have occurred in any one of the following circumstances occurring after the date hereof: (i) there shall have occurred an event required to be reported with respect to the Company in response to Item (6)(e) of Schedule 14A ofRegulation 14A (or in response to any similar item or any similar schedule or form) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), regardless of whether the Company is then subject to such reportingrequirement; (ii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) shall have become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, ofsecurities of the Company representing 15% or more of the combined voting power of the Company’s then outstanding voting securities; (iii) the Company is a party to a merger, consolidation, sale of assets or other 

reorganization, or a proxy contest, as a consequence of which members of the board in office immediatelyprior to such transaction or event constitute less than a majority of the board thereafter; (iv) all or substantially all the assets of the Company are sold or disposed of in a transaction or series of related transactions; or (v) the individualswho on the date hereof constitute the Board (including, for this purpose, any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still inoffice who were directors on the date hereof) cease for any reason to constitute at least a majority of the Board. 

 

(b) “*Enterprise*” means any Person of which Indemnitee is or was a Fiduciary. 

 

(c) “*Expenses*” means all direct andindirect costs (including, without limitation, attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery servicefees, and all other disbursements or out-of-pocket expenses) actually, reasonably and customarily incurred in connection with (i) any Proceeding, (ii) establishing or enforcing any right to indemnification or advancement of expenses under thisAgreement, applicable law, any other agreement or provision of the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or otherwise, or (iii) the review and preparation of this Agreement on behalf of Indemnitee;*provided, however,* that “Expenses” shall not include any Liabilities. 

 

(d) “*Fiduciary*” means an individual serving as a director, officer, trustee, general partner, managing member, fiduciary,board of directors’ committee member, employee or agent of (i) the Company, (ii) any resulting corporation in connection with a consolidation or merger to which the Company is a party, or (iii) any other Person (including an employee benefitplan) at the request of the Company, including any service with respect to an employee benefit plan, its participants or its beneficiaries. 

 

(e) “*Independent Counsel*” means a nationally recognized law firm, or a member of a nationally recognized law firm, thatis experienced in matters of corporate law and neither currently is, nor in the five years previous to its selection or appointment has been, retained to represent (i) the Company or an Indemnitee in any matter material to either such party (otherthan with respect to matters concerning the rights of Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements) or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.For the avoidance of doubt, any law firm or member of a law firm that shall have advised either party with respect to the review and preparation of this Agreement shall not be Independent Counsel for the purposes of this Agreement. 

 

(f) “*Liabilities*” means liabilities of anytype whatsoever incurred by reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii) any action taken (or failure to act) by him or on his behalf in his capacity as a Fiduciary, including, but not limited to, any judgments, fines(including any excise taxes assessed on Indemnitee with respect to an employee benefit plan), ERISA excise taxes and penalties, and penalties and 

 

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amounts paid in settlement of any Proceeding (including all interest, assessments and other charges paidor payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement). 

 

(g) “*Person*” means any individual, partnership, joint venture, firm, corporation, association, limited liability company,trust, estate, governmental unit or other enterprise or entity. 

 

(h) “*Proceeding*” shall mean any threatened, pending or completed investigation, civil or criminal action, third-party action, derivative action, claim, suit, arbitration, counterclaim, cross claim,alternative dispute resolution, mechanism, inquiry, administrative hearing or any other proceeding whether civil, criminal, administrative, legislative or investigative, formal or informal, including any appeal therefrom, in which Indemnitee wasinvolved as a party or witness or otherwise by reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii) any action taken (or failure to act) by him or on his behalf in his capacity as a Fiduciary. 

 

(i) “*Subsidiary*” means any Person of whicha majority of the outstanding voting securities or other voting equity interests are owned, directly or indirectly, by the Company. 

 

SECTION 2. Indemnification. 

 

(a) Indemnification. Subject to the further provisions of this Agreement, the Company hereby agrees to and shall indemnifyIndemnitee and hold him harmless from and against any and all Expenses and Liabilities incurred by Indemnitee or on Indemnitee’s behalf, to the fullest extent permitted by applicable law in effect on the date hereof, and to such greater extentas applicable law may thereafter permit or authorize. 

 

(b) Presumptions. 

 

(i) Uponmaking any request for indemnification or advancement of Expenses under this Agreement, Indemnitee shall be presumed to be entitled to such indemnification or advancement of Expenses, as the case may be, under this Agreement and, in connection withany determination with respect to entitlement to indemnification under Section 3(c) hereof, the Company shall have the burdens of coming forward with evidence and of persuasion to overcome that presumption in connection with the making by any Personof any determination contrary to that presumption. Neither the failure of any Person to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances becauseIndemnitee has met the applicable standard of conduct, nor an actual determination by any Person that Indemnitee has not met any applicable standard of conduct, shall be a defense to any such action by Indemnitee or create a presumption thatIndemnitee has not met the applicable standard of conduct. 

 

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(ii) For purposes of any determination of good faith, Indemnitee shall be deemed to haveacted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the officers, directors or employees of such Enterprise in thecourse of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by suchEnterprise. The provisions of this Section 2(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct as set forth in thisAgreement. 

 

(iii) If the Person empowered orselected under Section 3(c) hereof to determine whether Indemnitee is entitled to indemnification shall not have made a determination within twenty (20) calendar days after receipt by the Company of the request thereof, the requisite determinationof entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (A) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to makeIndemnitee’s statement not materially misleading, in connection with the request for indemnification, or (B) a prohibition of such indemnification under applicable law. 

 

(iv) The knowledge and/or actions, or failure to act, of any other Fiduciary shall not be imputed toIndemnitee for purposes of determining any right to indemnification under this Agreement. 

 

(c) Effect of Certain Proceedings. The termination of any Proceeding by judgment, order, settlement, conviction or upon a plea of*nolo contendere* or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Company, and with respect to anycriminal Proceeding, that Indemnitee had reason to believe his or her conduct was unlawful. 

 

SECTION 3. Expenses: Indemnification Procedure. 

 

(a) Advancement of Expenses. The Company shall advance all Expenses incurred by Indemnitee or on Indemnitee’s behalf, withoutregard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Indemnitee hereby undertakes to repay such amounts advanced if, and only to the extent that, it shall be determined by a final judgmentor other final adjudication, not subject to further appeal or review, that Indemnitee is not entitled to be indemnified by the Company as authorized hereby, or under applicable law or otherwise. The advances to be made hereunder shall be paid by theCompany to Indemnitee within twenty (20) calendar days following delivery of any written request, from time to time, by Indemnitee to the Company. Any overdue amount of such Expenses to be paid by the Company hereunder shall bear interest,compounded monthly, at a rate of 8% per annum. 

 

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Advances payable hereunder shall include any and all reasonable Expenses incurred pursuing an action toenforce this right of advancement, including Expenses incurred preparing and forwarding any statements to the Company to support the advances claimed. 

 

(b) Notice by Indemnitee. To obtain indemnification under this Agreement, Indemnitee shall, as promptly as reasonably practicableunder the circumstances, notify the Company in writing upon being serviced with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or any other matter which may be subject toindemnification of Liabilities or advancement of Expenses covered by this Agreement; *provided, however*, that any delay or failure to so notify the Company shall relieve the Company of its obligations hereunder only to the extent, if at all,that the Company is actually and materially prejudiced by reason of such delay or failure. Notice to the Company shall be directed to the Corporate Secretary of the Company, with a copy to the Company’s outside counsel, at the addresses shownon the signature page of this Agreement (or such other address as the Company shall designate in writing to Indemnitee) in accordance with Section 17 hereof. 

 

(c) Determination of Entitlement to Indemnification. Upon the receipt of any notice pursuant to Section 3(b) hereof, adetermination, if expressly required by applicable law, with respect to Indemnitee’s entitlement to indemnification hereunder shall be made within twenty (20) calendar days (i) by a majority vote of the Board who are not parties to theProceeding in respect of which indemnification is sought by Indemnitee, even though less than a quorum, (ii) by a committee of such directors designated by majority vote of such directors even though less than a quorum, or (iii) if there are no suchdirectors, or if such directors so direct, by Independent Counsel in a written opinion to the Board (a copy of which opinion shall be delivered to Indemnitee); *provided, however,* that if there has been a Change of Control at or prior to thetime of such notice by Indemnitee, Indemnitee’s entitlement to indemnification shall be determined within the foregoing time period by Independent Counsel selected by Indemnitee, such determination to be set forth in a written opinion to theBoard (a copy of which opinion shall be delivered to Indemnitee). The Company agrees to pay the reasonable fees of any Independent Counsel and fully to indemnify such Independent Counsel against any and all Expenses, claims, liabilities and damagesarising out of or relating to this Agreement or its engagement pursuant thereto. If, pursuant to the foregoing, it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) calendar daysfrom the date of notice by Indemnitee pursuant to Section 3(b) hereof. Indemnitee shall reasonably cooperate in the making of such determination, including providing upon reasonable advance request any documentation or information which is notprivileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. For the avoidance of doubt, any costs or expenses (including attorney’s fees and disbursements)incurred by Indemnitee in so cooperating with the Person making such determination shall be included as Expenses for the purposes of this Agreement. Nothing in this Section 3(c) shall be construed to limit or modify the presumptions in favor ofIndemnitee set forth in Section 2(b). 

 

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(d) Notice to Insurers. If, at the time of the receipt of any notice of anyProceeding pursuant to Section 3(b) hereof, the Company has directors’ and officers’ liability insurance in effect, then the Company shall give prompt notice of the commencement of such Proceeding to the directors’ and officers’liability insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or appropriate action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a resultof such Proceeding in accordance with the terms of such policies. The failure or refusal of such insurers to pay any such amount shall not affect or impair the obligations of the Company under this Agreement. 

 

(e) Control of Defense; Counsel Costs; Settlement. Inconnection with paying the Expenses of any Proceeding against Indemnitee under Section 3(a), the Company shall be entitled to elect to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not beunreasonably withheld, by the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company shall not be liableto Indemnitee under this Agreement for any fees of separate counsel subsequently incurred by Indemnitee with respect to the same Proceeding; *provided, however*, that Indemnitee shall have the right to employ counsel in any such Proceeding atIndemnitee’s expense; and *provided further*, that if either (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there is an actual conflict of interestbetween the Company and the Indemnitee in the conduct of any such defense, or (iii) the Company shall not have employed counsel to assume the defense of such Proceedings, then in any such event the fees and expenses of Indemnitee’s counselshall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought in the name of or on behalf of the Company or as to which Indemnitee shall have made the conclusion provided for in (ii) above.Notwithstanding the foregoing, if at any time the Company fails to pay any Expenses with respect to any Proceeding in accordance with Section 3(a) hereof, Indemnitee shall immediately be entitled to assume and control his own defense in suchProceeding with counsel of his own choice (by notice to the Company), and will have all rights to indemnification of those counsel Expenses hereunder. The Company shall not settle any action or claim in any manner that would impose any limitation orunindemnified penalty on Indemnitee without Indemnitee’s written consent, which consent shall not be unreasonably withheld. 

 

SECTION 4. Remedies of Indemnitee. 

 

(a) In the event that (i) a determination is made pursuant to Section 3(c) of this Agreement that Indemnitee is not entitled toindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 3(a) hereof, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 3(c) hereof within twenty (20)calendar days after receipt by the Company of notice pursuant to Section 3(b) hereof, or (iv) payment of indemnification is not made pursuant to the third last sentence of Section 3(c) hereof within twenty (20) calendar days after the date of noticeby Indemnitee pursuant to Section 3(b) hereof, then in any such event Indemnitee shall be entitled to an adjudication by the Delaware Court 

 

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of Chancery or other court of competent jurisdiction of his entitlement to such indemnification,advancement of Expenses, or to recover damages for breach of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication. 

 

(b) In the event that a determination shall have been made pursuant to Section 3(c) of this Agreement thatIndemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 4 shall be conducted in all respects as a *de novo* trial and Indemnitee shall not be prejudged by reason of that adverse determination.In any judicial proceeding commenced pursuant to this Section 4 the Company shall have the burdens of coming forward with evidence and of persuasion to prove that Indemnitee is not entitled to indemnification or advancement of Expenses, as the casemay be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 3(c) of this Agreement adverse to Indemnitee for any purpose. If a determination shall have been made pursuant to Section 3(c) hereof thatIndemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 4, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a materialfact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. 

 

(c) In the event that Indemnitee, pursuant to this Section4, seeks a judicial adjudication to enforce his rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expensesactually and reasonably incurred by him in such judicial adjudication. If it shall be determined in said judicial adjudication that Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, theIndemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses reasonably incurred by Indemnitee in connection with such judicial adjudication. 

 

(d) The Company shall be precluded from asserting in anyjudicial proceeding commenced pursuant to this Section 4 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of thisAgreement. 

 

SECTION 5. Nonexclusivity. Theindemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under any employment agreement between the Company and Indemnitee, the Company’s Certificate of Incorporation, the Company’sBylaws, any agreement, any vote of shareholders or disinterested directors, the General Corporation Law of the State of Delaware (the “DGCL”) or otherwise, both as to action in Indemnitee’s official capacity and as to action inanother capacity while holding such office. 

 

SECTION 6.Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses or Liabilities actually or reasonably incurred by Indemnitee in investigation,defense, 

 

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appeal or settlement of any Proceeding, but not, however, for the total amount thereof, the Company shall neverthelessindemnify Indemnitee for the portion of such Expenses and Liabilities to which Indemnitee is entitled. 

 

SECTION 7. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in certain instances, U.S. Federal law or applicable publicpolicy may prohibit the Company from advancing expenses or indemnifying its directors, officers or employees under this Agreement or otherwise. Indemnitee understands and acknowledges that the Company may be required in the future to undertake withthe Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s right under public policy to indemnify Indemnitee. Any action taken pursuant to the termsof this Section 7 shall not constitute a breach of this Agreement. 

 

SECTION 8. Directors’ and Officers’ Liability Insurance. The Company shall use its best efforts to obtain and maintain on an ongoing basis a policy or policies of insurance on commercially reasonably terms with reputableinsurance companies providing liability insurance for Fiduciaries, including Indemnitee, in respect of acts or omissions occurring while serving in such capacity, and to ensure the Company’s performance of its indemnification obligations underthis Agreement, on terms with respect to coverage and amount (including with respect to the payment of Expenses) no less favorable than those of such policy or policies of insurance in effect on the date hereof. To the extent that the Companymaintains a policy or policies of insurance pursuant to this Section 8, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any Fiduciary under such policyor policies. 

 

SECTION 9. Severability. If this Agreementor any portion hereof shall be invalidated or ruled to be unenforceable on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the full extent permitted by applicable law and the court isexpressly requested and authorized to construe this Agreement in order, as closely as possible, to provide the benefits to Indemnitee intended by this Agreement. 

 

SECTION 10. Duration of Agreement. The indemnification provided under this Agreement shall continue as to theIndemnitee for any action taken or not taken while serving as a Fiduciary even though Indemnitee may have ceased to serve in such capacity at the time of any action or other covered proceeding. 

 

SECTION 11. Exceptions. Any other provision herein to the contrarynotwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee as follows: 

 

(a) Excluded Acts. No indemnification shall be made for any acts or omissions or transactions of Indemnitee in his capacity asdirector, if and to the extent that it shall be determined by a final judgment or other final adjudication, not subject to further appeal or review, that a director or officer may not be relieved of liability arising from any such acts or omissionsor transactions under the DGCL; 

 

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(b) Indemnitee Liable to Company. No indemnification shall be made in respect ofany Proceeding, claim, issue or matter as to which it shall have been determined by a final judgment or other final adjudication, not subject to further appeal or review, that Indemnitee is liable to the Company unless and only to the extent thatsuch final judgment or other final adjudication shall determine that, despite the adjudication of liability but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as the courtdeems proper and then only to the extent that the court shall determine; 

 

(c) Claims Initiated by Indemnitee. No indemnification or advance of Expenses to Indemnitee shall be made with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way ofdefense, except with respect to such Proceedings brought to establish or enforce a right to indemnification or advancement of Expenses under this Agreement or any other statute or applicable law or otherwise as required under Section 145(c) of theDGCL or any other provision of the Certificate of Incorporation or Bylaws of the Company, unless (i) the Board of Directors has approved the initiation or bringing of such Proceedings (or any part of any Proceeding) or (ii) the Company provides theindemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; 

 

(d) Lack of Good Faith. No indemnification shall be made to indemnify Indemnitee for any Expenses or Liabilities incurred byIndemnitee with respect to any Proceedings instituted by Indemnitee to enforce or interpret this Agreement, if it shall be determined by a final judgment or other final adjudication, not subject to further appeal or review, that each of the materialassertions made by Indemnitee in such proceeding was not made in good faith or was frivolous; 

 

(e) Insured Claims. No indemnification shall be made to indemnify Indemnitee for Expenses or Liabilities of any type whatsoever if,but only to the extent that, Indemnitee shall have actually received payment with respect to any such Expenses or Liabilities from an insurer under any policy of directors’ and officers’ liability insurance maintained by the Company, andany such payment shall not be recovered (in whole or in part) from Indemnitee by such insurer; 

 

(f) Claims Under Section 16(b). No indemnification shall be made under this Agreement for Expenses, Liabilities and the payment ofprofits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Exchange Act or any similar state or local law with respect to the disgorgement of “short swing” profits; or 

 

(g) Unauthorized Settlements. No indemnificationshall be made under this Agreement for any amounts paid in settlement of any Proceedings covered hereby without the prior consent of the Company to such settlement, which consent shall not be unreasonably withheld; 

 

*provided*, *however,*that nothing in this Section 11 shall beconstrued to limit or modify the presumptions in favor of Indemnitee set forth in Section 2(b). 

 

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SECTION 12. Effectiveness of Agreement. The indemnification permitted hereunder shall be effectiveas of the date hereof, and shall apply to acts or omissions of Indemnitee which occurred prior to such date if Indemnitee was a Fiduciary at the time such act or omission occurred. 

 

SECTION 13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitutean original, and all of which shall constitute one and the same agreement. 

 

SECTION 14. Successors and Assigns. 

 

(a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns (including any direct or indirect successor by purchase, merger,consolidation or otherwise to all or substantially all of the business and/or assets of the Company), spouses, heirs and executors, administrators, personal and legal representatives. The Company shall require and cause any successor (whether director indirect by purchase, merger, consolidation or otherwise) to all or substantially all, or a substantial part of the business or assets of the Company, by written agreement in the form and substance satisfactory to Indemnitee, expressly to assumeand agree to perform this Agreement in the manner and to the same extent that the Company would be required to perform if no such succession had taken place. 

 

(b) The indemnification and advancement of Expenses provided by, or granted pursuant to, this Agreement shall continue as to any personwho has ceased to be a Fiduciary. If the Indemnitee is deceased and is entitled to indemnification under any provision of this Agreement, when requested in writing by the spouse of the Indemnitee, and/or the Indemnitee’s heirs, executors,administrators, legatees or assigns, the Company shall provide appropriate evidence of the Company’s agreement set out herein to indemnify the Indemnitee against and to itself assume such Expenses. 

 

SECTION 15. Modification and Waiver. No supplement, modification oramendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively orprospectively) by the party entitled to enforce such term only by a writing signed by the party against which such waiver is to be asserted. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of anyother provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 

 

SECTION 16. Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given(i) if delivered by hand or by courier and receipted for by the party addressee, on the date of such receipt, (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third business day after the date postmarked or (iii)if sent by facsimile transmission and fax confirmation is received, on the next business day following the date on which such facsimile transmission was sent. Addresses 

 

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for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by writtennotice. 

 

SECTION 17. Subrogation. In the event ofpayment under this Agreement, the Company shall be subrogated to the extent of such payments to all of the rights of recovery of the Indemnitee, who shall, at the Company expense, execute all documents required and do all acts that may be necessaryto secure such rights and to enable the Company effectively to bring suit to enforce such rights. 

 

SECTION 18. Evidence of Coverage. Upon request by Indemnitee, the Company shall provide copies of any and all directors’ and officers’liability insurance policies obtained and maintained in accordance with Section 8 of this Agreement. The Company shall promptly notify Indemnitee of any changes in the Company’s directors’ and officers’ liability insurance coverage.

 

SECTION 19. Governing Law. The parties agree that thisAgreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without application of the conflict of laws principles thereof. 

 

SECTION 20. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably consent to the jurisdictionand venue of the Bankruptcy court and the courts of the State of California for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement. 

 

SECTION 21. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreementbetween the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are superseded by this Agreement. 

 

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**IN WITNESS WHEREOF**, the parties hereto have executed this Agreement, or caused this Agreement tobe executed by their duly authorized representative, as of the day and year first above written. 

 
**COMPANY**TDK MEDIACTIVE, INC.
By:
   
Vincent J. Bitetti

Chief Executive Officer

TDK Mediactive, Inc.

4373 Park Terrace Drive

Westlake Village, CA 91361

 
**INDEMNITEE**  
Vincent J. Bitetti

c/o TDK Mediactive, Inc.

4373 Park Terrace Drive

Westlake Village, CA 91361

 

**Counsel to the Company:**

 

Swidler Berlin Shereff Friedman, LLP

3000 K Street, N.W. Suite 300 

Washington, DC 20007 

Attn: Sean P. McGuinness 

 

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