EXHIBIT 10.48
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of the 18th day of February, 2002, by and between Sunrise Television
Corp., a Delaware corporation (including any successors thereto by merger,
consolidation or otherwise, the "Company"), and Xxxxxx X. Xxxxx ("Indemnitee").
RECITALS:
1. Competent and experienced persons are reluctant to serve or to
continue to serve corporations as directors, officers, or in other capacities
unless they are provided with adequate protection through insurance or
indemnification (or both) against claims and actions against them arising out of
their service to and activities on behalf of those corporations.
2. The current uncertainties relating to the availability of
adequate insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
3. The Board of Directors of the Company (the "Board") has
determined that the continuation of present trends in litigation will make it
more difficult to attract and retain competent and experienced persons, that
this situation is detrimental to the best interests of the Company's
stockholders, and that the Company should act to assure its directors and
officers that there will be increased certainty of adequate protection in the
future.
4. It is reasonable, prudent, and necessary for the Company to
obligate itself contractually to indemnify its directors and officers to the
fullest extent permitted by applicable law in order to induce them to serve or
continue to serve the Company.
5. Indemnitee is willing to serve and continue to serve the
Company on the condition that he be indemnified to the fullest extent permitted
by law.
6. Concurrently with the execution of this Agreement, Indemnitee
is agreeing to serve or to continue to serve as a director or officer of the
Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises,
Indemnitee's agreement to serve or continue to serve as a director or officer of
the Company, and the covenants contained in this Agreement, the Company and
Indemnitee hereby covenant and agree as follows:
1. Certain Definitions.
For purposes of this Agreement:
(a) Affiliate: shall mean any Person that directly, or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with the Person specified.
(b) Change of Control: shall mean the occurrence of any
of the following events:
(i) The acquisition after the date of this
Agreement by any individual, entity, or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either (x) the then
outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this paragraph (i), the following acquisitions shall not
constitute a Change of Control: (1) any acquisition directly from the Company or
any Subsidiary thereof, (2) any acquisition by the Company or any Subsidiary
thereof, (3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary of the Company or (4)
any acquisition by any one or more members of the HMC Group;
(ii) Individuals who, as of the date of this
Agreement, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date of this Agreement (x) who
is a member of the HMC Group or (y) whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board, shall in either case be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(iii) Consummation of a sale, lease, exchange, or
other disposition of all or substantially all of the assets of the Company
(including the capital stock or assets of its subsidiaries) to any Person, other
than one or more members of the HMC Group.
(c) Claim: shall mean any threatened, pending, or
completed action, suit, or proceeding (including, without limitation, securities
laws actions, suits, and proceedings and also any cross claim or counterclaim in
any action, suit, or proceeding), whether civil, criminal, arbitral,
administrative, or investigative in nature, or any inquiry or investigation
(including discovery), whether conducted by the Company or any other Person,
that Indemnitee in good faith believes might lead to the institution of any
action, suit, or proceeding.
(d) Expenses: shall mean all costs, expenses (including
attorneys' and expert witnesses' fees), and obligations paid or incurred in
connection with investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in
2
(including on appeal), or preparing to defend, be a witness in, or participate
in, any Claim relating to any Indemnifiable Event.
(e) HMC Group: shall mean Hicks, Muse, Xxxx & Xxxxx
Incorporated, its Affiliates and their respective employees, officers, and
directors (and members of their respective families and trusts for the primary
benefit of such family members).
(f) Indemnifiable Event: shall mean any actual or alleged
act, omission, statement, misstatement, event, or occurrence related to the fact
that Indemnitee is or was a director, officer, agent, or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, trustee, agent, or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, or by reason of any
actual or alleged thing done or not done by Indemnitee in any such capacity. For
purposes of this Agreement, the Company agrees that Indemnitee's service on
behalf of or with respect to any Subsidiary or employee benefits plan of the
Company or any Subsidiary of the Company shall be deemed to be at the request of
the Company.
(g) Indemnifiable Liabilities: shall mean all Expenses
and all other liabilities, damages (including, without limitation, punitive,
exemplary, and the multiplied portion of any damages), judgments, payments,
fines, penalties, amounts paid in settlement, and awards paid or incurred that
arise out of, or in any way relate to, any Indemnifiable Event.
(h) Potential Change of Control: shall be deemed to have
occurred if (i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change of Control; (ii) any Person
(including the Company) publicly announces an intention to take or to consider
taking actions that, if consummated, would constitute a Change of Control; or
(iii) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change of Control has occurred.
(i) Reviewing Party: shall mean (i) a member or members
of the Board who are not parties to the particular Claim for which Indemnitee is
seeking indemnification or (ii) if a Change of Control has occurred and
Indemnitee so requests, or if the members of the Board so elect, or if all of
the members of the Board are parties to such Claim, Special Counsel.
(j) Special Counsel: shall mean special, independent
legal counsel selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise performed
material services for the Company or for Indemnitee within the last three years
(other than as Special Counsel under this Agreement or similar agreements).
(k) Subsidiary: shall mean, with respect to any Person,
any corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
that Person.
2. Indemnification and Expense Advancement.
(a) The Company shall indemnify Indemnitee and hold
Indemnitee harmless to the fullest extent permitted by law, as soon as
practicable but in any event no later than 30
3
days after written demand is presented to the Company, from and against any and
all Indemnifiable Liabilities. Notwithstanding the foregoing, the obligations of
the Company under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in any case in
which Special Counsel is involved) that Indemnitee is not permitted to be
indemnified under applicable law. Any determination under this Section 2(a)
shall be made promptly by the Reviewing Party.
(b) If so requested by Indemnitee, the Company shall
advance to Indemnitee all reasonable Expenses incurred by Indemnitee to the
fullest extent permitted by law (or, if applicable, reimburse Indemnitee for any
and all reasonable Expenses incurred by Indemnitee and previously paid by
Indemnitee) within ten business days after such request (an "Expense Advance").
The Company shall be obligated from time to time at the request of Indemnitee to
make or pay an Expense Advance in advance of the final disposition or conclusion
of any Claim. In connection with any request for an Expense Advance, if
requested by the Company, Indemnitee or Indemnitee's counsel shall submit an
affidavit stating that the Expenses to which the Expense Advances relate are
reasonable. Any dispute as to the reasonableness of any Expense shall not delay
an Expense Advance by the Company. If, when, and to the extent that the
Reviewing Party determines that (i) Indemnitee would not be permitted to be
indemnified with respect to a Claim under applicable law or (ii) the amount of
the Expense Advance was not reasonable, the Company shall be entitled to be
reimbursed by Indemnitee and Indemnitee hereby agrees to reimburse the Company
without interest (which agreement shall be an unsecured obligation of
Indemnitee) for (x) all related Expense Advances theretofore made or paid by the
Company in the event that it is determined that indemnification would not be
permitted or (y) the excessive portion of any Expense Advances in the event that
it is determined that such Expenses Advances were unreasonable, in either case,
if and to the extent such reimbursement is required by applicable law; provided,
however, that if Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee could be
indemnified under applicable law, or that the Expense Advances were reasonable,
any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law or that the Expense Advances
were unreasonable shall not be binding, and the Company shall be obligated to
continue to make Expense Advances, until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed), which determination shall be conclusive and binding. If
there has been a Change of Control, the Reviewing Party shall be Special
Counsel, if Indemnitee so requests. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively is not permitted to be indemnified in whole or part under
applicable law or that any Expense Advances were unreasonable, Indemnitee shall
have the right to commence litigation in any court in the states of Texas, New
York or Delaware having subject matter jurisdiction thereof and in which venue
is proper seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the Company
hereby consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.
(c) Nothing in this Agreement, however, shall require the
Company to indemnify Indemnitee with respect to any Claim initiated by
Indemnitee, other than a Claim
4
solely seeking enforcement of the Company's indemnification obligations to
Indemnitee or a Claim authorized by the Board.
3. Change of Control. The Company agrees that, if there is a
Potential Change in Control or a Change of Control and if Indemnitee requests in
writing that Special Counsel be the Reviewing Party, then Special Counsel shall
be the Reviewing Party. In such a case, the Company agrees not to request or
seek reimbursement from Indemnitee of any indemnification payment or Expense
Advances unless Special Counsel has rendered its written opinion to the Company
and Indemnitee that the Company was not or is not permitted under applicable law
to indemnify Indemnitee or that such Expense Advances were unreasonable.
However, if Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee could be indemnified
under applicable law or that the Expense Advances were reasonable, any
determination made by Special Counsel that Indemnitee would not be permitted to
be indemnified under applicable law or that the Expense Advances were
unreasonable shall not be binding, and the Company shall be obligated to
continue to make Expense Advances, until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefore have been
exhausted or lapsed), which determination shall be conclusive and binding. The
Company agrees to pay the reasonable fees of Special Counsel and to indemnify
Special Counsel against any and all expenses (including attorneys' fees),
claims, liabilities, and damages arising out of or relating to this Agreement or
Special Counsel's engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall
indemnify Indemnitee against any and all costs and expenses (including
attorneys' and expert witnesses' fees) and, if requested by Indemnitee, shall
(within two business days of that request) advance those costs and expenses to
Indemnitee, that are incurred by Indemnitee if Indemnitee, whether by formal
proceedings or through demand and negotiation without formal proceedings: (a)
seeks to enforce Indemnitee's rights under this Agreement, (b) seeks to enforce
Indemnitee's rights to expense advancement or indemnification under any other
agreement or provision of the Company's Certificate of Incorporation (the
"Certificate of Incorporation") or Bylaws (the "Bylaws") now or hereafter in
effect relating to Claims for Indemnifiable Events, or (c) seeks recovery under
any directors' and officers' liability insurance policies maintained by the
Company, in each case regardless of whether Indemnitee ultimately prevails;
provided that a court of competent jurisdiction has not found Indemnitee's claim
for indemnification or expense advancements under the foregoing clauses (a), (b)
or (c) to be frivolous, presented for an improper purpose, without evidentiary
support, or otherwise sanctionable under Federal Rule of Civil Procedure No. 11
or an analogous rule or law, and provided further, that if a court makes such a
finding, Indemnitee shall reimburse the Company for all amounts previously
advanced to Indemnitee pursuant to this Section 4. Subject to the provisos
contained in the preceding sentence, to the fullest extent permitted by law, the
Company waives any and all rights that it may have to recover its costs and
expenses from Indemnitee.
5. Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some, but not
all, of Indemnitee's
5
Indemnifiable Liabilities, the Company shall indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
6
6. Contribution.
(a) Contribution Payment. To the extent the
indemnification provided for under any provision of this Agreement is determined
(in the manner hereinabove provided) not to be permitted under applicable law,
the Company, in lieu of indemnifying Indemnitee, shall, to the extent permitted
by law, contribute to the amount of any and all Indemnifiable Liabilities
incurred or paid by Indemnitee for which such indemnification is not permitted.
The amount the Company contributes shall be in such proportion as is appropriate
to reflect the relative fault of Indemnitee, on the one hand, and of the Company
and any and all other parties (including officers and directors of the Company
other than Indemnitee) who may be at fault (collectively, including the Company,
the "Third Parties"), on the other hand.
(b) Relative Fault. The relative fault of the Third
Parties and the Indemnitee shall be determined (i) by reference to the relative
fault of Indemnitee as determined by the court or other governmental agency or
(ii) to the extent such court or other governmental agency does not apportion
relative fault, by the Reviewing Party after giving effect to, among other
things, the relative intent, knowledge, access to information, and opportunity
to prevent or correct the relevant events, of each party, and other relevant
equitable considerations. The Company and Indemnitee agree that it would not be
just and equitable if contribution were determined by pro rata allocation or by
any other method of allocation that does take account of the equitable
considerations referred to in this Section 6(b).
7. Burden of Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified under any provision of this Agreement or to receive contribution
pursuant to Section 6 of this Agreement, to the extent permitted by law the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
8. No Presumption. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval), or conviction, or upon a plea of nolo contendere, or its
equivalent, or an entry of an order of probation prior to judgment shall not
create a presumption (other than any presumption arising as a matter of law that
the parties may not contractually agree to disregard) that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
9. Non-exclusivity. The rights of Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the Bylaws or
Certificate of Incorporation or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by that change. Indemnitee's rights under this
Agreement shall not be diminished by any amendment to the Certificate of
Incorporation or Bylaws, or of any other agreement or
7
instrument to which Indemnitee is not a party, and shall not diminish any other
rights that Indemnitee now or in the future has against the Company.
10. Liability Insurance. Except as otherwise agreed to by the
Company and Indemnitee in a written agreement, to the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by that policy or those
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company director or officer.
11. Period of Limitations. No action, lawsuit, or proceeding may
be brought against Indemnitee or Indemnitee's spouse, heirs, executors, or
personal or legal representatives, nor may any cause of action be asserted in
any such action, lawsuit, or proceeding, by or on behalf of the Company, after
the expiration of two years after the statute of limitations commences with
respect to Indemnitee's act or omission that gave rise to the action, lawsuit,
proceeding, or cause of action; provided, however, that, if any shorter period
of limitations is otherwise applicable to any such action, lawsuit, proceeding,
or cause of action, the shorter period shall govern.
12. Amendments. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any provision of this Agreement shall be effective unless
in a writing signed by the party granting the waiver. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall that waiver
constitute a continuing waiver.
13. Other Sources. Indemnitee shall not be required to exercise
any rights that Indemnitee may have against any other Person (for example, under
an insurance policy) before Indemnitee enforces his rights under this Agreement;
however, to the extent the Company actually indemnifies Indemnitee or advances
him Expenses, the Company shall be subrogated to the rights of Indemnitee and
shall be entitled to enforce any such rights which Indemnitee may have against
third parties. Indemnitee shall assist the Company in enforcing those rights if
it pays his costs and expenses of doing so. If Indemnitee is actually
indemnified or advanced Expenses by any third party, then, for so long as
Indemnitee is not required to disgorge the amounts so received, to that extent
the Company shall be relieved of its obligation to indemnify Indemnitee or
advance Indemnitee Expenses.
14. Binding Effect. 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 merger or
consolidation), spouses, heirs, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or another enterprise at the
Company's request.
15. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, that provision shall be fully severable; this Agreement shall
be construed and enforced as if that illegal, invalid, or unenforceable
provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable
8
provision or by its severance from this Agreement. Furthermore, in lieu of that
illegal, invalid, or unenforceable provision, there shall be added automatically
as a part of this Agreement a provision as similar in terms to the illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in that state without giving
effect to the principles of conflicts of laws.
17. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. Notices. Whenever this Agreement requires or permits notice to
be given by one party to the other, such notice must be in writing to be
effective and shall be deemed delivered and received by the party to whom it is
sent upon actual receipt (by any means) of such notice. Receipt of a notice by
the Secretary of the Company shall be deemed receipt of such notice by the
Company.
19. Complete Agreement. This Agreement constitutes the complete
understanding and agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof, other than any
indemnification rights that Indemnitee may enjoy under the Certificate of
Incorporation, the Bylaws, or the Delaware General Corporation Law.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
9
EXECUTED as of the date first written above.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
INDEMNITEE
/s/ Xxxxxx X. Xxxxx
----------------------------------------------------
XXXXXX X. XXXXX
S-1
