Exhibit 10.5
OFFICERS' AND DIRECTORS'
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of November 21,
2005 by and between Space Systems/Loral, Inc., a Delaware corporation (the
"Company"), and C. Xxxxxxx XxXxxx ("Indemnitee").
RECITALS
WHEREAS, officers and directors of publicly held corporations are
increasingly exposed, in carrying out their duties and responsibilities on
behalf and for the benefit of such corporations, to claims and other actions
against them and are reluctant to serve unless they are provided with adequate
protection through insurance and/or indemnification against the risks of such
claims being asserted against them arising out of their service to and
activities on behalf of such corporations; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company's stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future; and
WHEREAS, the Board has determined that, in order to help attract and
retain qualified individuals as officers and directors and in other capacities,
the best interests of the Company and its stockholders will be served by
attempting to maintain, on an ongoing basis, at the Company's sole expense,
insurance to protect persons serving the Company and its subsidiaries as
officers and directors and in other capacities from certain liabilities.
Although the furnishing of such insurance has been a customary and widespread
practice among United States-based corporations and other business enterprises
for many years, the Company believes that, given current market conditions and
trends, such insurance may be available to it in the future only at higher
premiums and with more exclusions. At the same time, directors, officers and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation; and
WHEREAS, the Board has determined that, in order to help attract and
retain qualified individuals as officers and directors and in other capacities,
the best interests of the Company and its stockholders will be served by
assuring such individuals that the Company will indemnify them to the maximum
extent permitted by law; and
WHEREAS, the Amended and Restated Certificate of Incorporation as in
effect on the date hereof (the "Certificate of Incorporation") of the Company
requires, in certain circumstances described therein, and in other circumstances
permits, but does not obligate the Company to provide for, the indemnification
of the officers and directors of the Company, subject to certain limitations
contained therein, and Indemnitee may also
be entitled to indemnification pursuant to the Delaware General Corporation Law
("DGCL"); and
WHEREAS, the Certificate of Incorporation and the DGCL expressly provide
that the indemnification provisions set forth therein are not exclusive, and
thereby contemplate that contracts may be entered into between the Company and
members of the Board, officers and other persons with respect to indemnification
and the advancement of defense costs; and
WHEREAS, it therefore is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance defense costs on
behalf of, the Indemnitee to the extent, and only to the extent, provided herein
so that he or she will serve or continue to serve the Company free from undue
concern that he or she will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
Certificate of Incorporation and any resolutions of the Board adopted pursuant
thereto, and shall not be deemed a substitute therefore, nor shall it be deemed
to diminish or abrogate any rights of Indemnitee thereunder; provided, however,
that this Agreement shall be construed in accordance and consistent with, and in
the event of any conflict be superseded by, and in no way creates or be used to
create indemnification obligations of the Company which are inconsistent with,
Section 8 of this Agreement and Article VII of the Certificate of Incorporation;
and
WHEREAS, Indemnitee is willing to serve, and continue to serve, and take
on additional service as an officer and/or in such other capacities on the
condition that he or she be indemnified as provided for herein.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve, at
the will of the Company, as an officer, director or key employee of the Company
for so long as Indemnitee is duly elected or appointed or until Indemnitee
tenders his or her resignation.
2. DEFINITIONS. As used in this Agreement:
(a) A "Change in Control" shall be deemed to occur upon the earliest to
occur after the date of this Agreement of any of the following events:
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(i) Any Person (excluding any employee benefit plan of the Company)
is or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the combined voting power of
the Company's outstanding securities then entitled ordinarily to vote for the
election of directors; or
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(ii) During any period of two (2) consecutive years commencing on or
after the effective date of a plan or reorganization with respect to the Company
and approved by the United States Bankruptcy Court ("Effective Date"), the
individuals who at the beginning of such period constitute the Board or any
individuals who would be Continuing Directors (as defined below) cease for any
reason to constitute at least a majority thereof; or
(iii) The Board shall approve a sale of all or substantially all of
the assets of the Company; or
(iv) The Board shall approve any merger, consolidation, or like
business combination or reorganization of the Company, the consummation of which
would result in the occurrence of any event described in clause (i) or (ii),
above.
Notwithstanding the foregoing, none of the events or circumstances
described in clauses (i) through (iv) above shall be deemed to result in a
Change in Control if such event or circumstance results in any stockholder,
together with its affiliates, which beneficially owns 30% or more of the
outstanding common stock of the Company as of the Effective Date or any
affiliates of such stockholder increasing its equity interests in the Company,
acquiring all or substantially all of the assets of the Company or increasing
its representation on the Board.
(b) "Continuing Directors" shall mean the original members of the Board
pursuant to the Plan and any successor to any such director and any additional
director who after the Effective Date was nominated or selected by a majority of
the Continuing Directors in office at the time of his or her nomination or
selection.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(d) "Person" shall have the meaning set forth in Sections 13(d) and
14(d) of the Exchange Act; provided, however, that Person shall exclude (i) the
Company and (ii) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company.
(e) "Beneficial Owner" shall have the meaning given to such term in
Rule 13d-3 issued under the Exchange Act; provided, however, that Beneficial
Owner shall exclude any Person becoming a Beneficial Owner by reason of the
stockholders of the Company approving a merger of the Company with another
entity.
(f) "Corporate Status" shall describe the status of a Person who is or
was a director, officer, trustee, partner, member, fiduciary, employee or agent
of the Company or of any other Enterprise (as defined below), which such Person
is or was serving at the request of the Company.
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(g) "Disinterested Director" shall mean a member of the Board who is
not and was not a party to the Proceeding (as defined below) in respect of which
indemnification is sought by Indemnitee.
(h) "Enterprise" shall mean any corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, partner, member, fiduciary, employee or agent.
(i) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types and
amounts customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a
witness in, or otherwise participating in, a Proceeding (as defined below).
Expenses also shall include costs incurred in connection with any appeal
resulting from any Proceeding (as defined below), including, without limitation,
the premium, security for, and other costs relating to any bond, supersedeas
bond, or other appeal bond or its equivalent. Expenses, however, shall not
include (i) amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee and (ii) except as expressly provided in Section
8(b), any amount payable by Indemnitee in connection with or related to
Proceedings in connection with events occurring before the Bankruptcy Filing or
that relate to or are in connection with Old Loral.
(j) References to "fines" shall include any excise tax assessed on a
person with respect to any employee benefit plan pursuant to applicable law.
(k) References to "serving at the request of the Company" shall include
, without limitation, any service provided at the request of the Company as a
director, officer, trustee, partner, member, fiduciary, employee or agent of the
Company and any duties or services by such director, officer, trustee, partner,
member, fiduciary, employee or agent with respect to an employee benefit plan or
its participants and beneficiaries.
(l) Any action taken or omitted to be taken by a person for a purpose
which he or she reasonably believed to be in the interests of the Company or an
employee benefit plan or its participants and beneficiaries shall, without
limitation, be deemed to have been taken in "good faith" and for a purpose which
is "not opposed to the best interests of the Company", as such terms are
referred to in this Agreement and used in the DGCL.
(m) The term "Proceeding" shall include any threatened, pending or
completed, in each case commenced after the Bankruptcy Filing (except as
expressly provided in Section 8(b)), action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought in the
right of the Company or otherwise and
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whether of a civil, criminal, administrative or investigative nature, including
any related appeal, in which Indemnitee was, is or will be involved as a party
or witness or otherwise by reason of the fact that Indemnitee is or was a
director, officer, trustee, partner, member, fiduciary, employee or agent of the
Company, by reason of any action taken or not taken by him or her while acting
as director, officer, trustee, partner, member, fiduciary, employee or agent of
the Company, or by reason of the fact that he or she is or was serving at the
request of the Company as a director, officer, trustee, partner, member,
fiduciary, employee or agent of any other Enterprise, in each case whether or
not serving in such capacity at the time any liability or expense is incurred
for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.
(n) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five (5) years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement, or other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's rights under this Agreement.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is
made, or is threatened to be made, a party to or a participant in (as a witness
or otherwise) any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified against all judgments, fines, penalties, amounts
paid in settlement (if such settlement is approved in writing in advance by the
Company, which approval shall not be unreasonably withheld) (including, without
limitation, all interest, assessments and other charges paid or payable in
connection with or in respect of any of the foregoing) (collectively, "Losses")
and Expenses actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with such Proceeding or any action, discovery event, claim,
issue or matter therein or related thereto, if Indemnitee acted in good faith,
for a purpose which he or she reasonably believed to be in or not opposed to the
best interests of the Company and, in the case of a criminal Proceeding, in
addition, had no reasonable cause to believe that his or her conduct was
unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is made, or is threatened to be made, a party to or a participant
in (as a witness or otherwise) any Proceeding by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by him or
her or on his or her behalf in connection with the defense or settlement of such
Proceeding or any action, discovery
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event, claim, issue or matter therein or related thereto, if Indemnitee acted in
good faith, for a purpose which he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification, however, shall
be made under this Section 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company, unless
and only to the extent that the court in which the Proceeding was brought or, if
no Proceeding was brought in a court, any court of competent jurisdiction,
determines upon application that, in view of all the circumstances of the case,
Indemnitee fairly and reasonably is entitled to indemnification for such portion
of the Expenses as the court deems proper.
5. INDEMNIFICATION FOR EXPENSES WHERE INDEMNITEE IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding and in addition to any other provisions of this
Agreement, to the extent that Indemnitee is a party to a Proceeding and is
successful, on the merits or otherwise, in the defense of any claim, issue or
matter therein, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or her or on his or her behalf in
connection with such successful defense. For the avoidance of doubt, if
Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her or on his or her behalf
in connection with each successfully resolved claim, issue or matter. For
purposes of this Section 5 and, without limitation, the termination of any
claim, issue or matter in such a Proceeding by withdrawal or dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding and in
addition to any other provision of this Agreement, to the extent that Indemnitee
is, by reason of his or her Corporate Status, a witness in or otherwise incurs
Expenses in connection with any Proceeding to which Indemnitee is not a party,
he or she shall be indemnified against all Expenses actually and reasonably
incurred by him or her or on his or her behalf in connection therewith.
7. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4, or 5 hereof, but
subject to Article VII of the Certificate of Incorporation and Section 8 hereof,
the Company shall indemnify Indemnitee to the fullest extent permitted by law
and Article VII of the Certificate of Incorporation, if Indemnitee is made, or
is threatened to be made, a party to any Proceeding (including a Proceeding by
or in the right of the Company to procure a judgment in its favor) against all
Losses and Expenses actually and reasonably incurred by Indemnitee in connection
with the Proceeding. No indemnification shall be made under this Section 7(a) on
account of Indemnitee's conduct which constitutes a breach of Indemnitee's duty
of loyalty to the Company or its stockholders or is an act or omission not in
good faith or which involves intentional misconduct or a knowing violation of
the law.
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(b) For purposes of Section 7(a), the meaning of the phrase "to the
fullest extent permitted by law" shall include, but not be limited to:
i. to the fullest extent authorized or permitted by the
then-applicable provisions of the DGCL that authorize or contemplate
indemnification by agreement, or the corresponding provision of any amendment to
or replacement of the DGCL, and ---
ii. to the fullest extent authorized or permitted by any amendments
to or replacements of the DGCL adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its officers and
directors.
(c) Indemnitee shall be entitled to the prompt payment of all Expenses
reasonably incurred in enforcing successfully (fully or partially) this
Agreement.
8. EXCLUSIONS.
(a) Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity, including for
Expenses, in connection with any Proceeding against Indemnitee:
(i) for which payment actually has been received by or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount actually received under such
insurance policy or other indemnity provision; or
(ii) for an accounting of profits made from the purchase and sale
(or sale and purchase) by Indemnitee or any member of the Indemnitee's
immediate family of securities of the Company within the meaning of
Section 16(b) of the Exchange Act, as amended, or similar provisions of state
blue sky law, state statutory law or common law; or
(iii) based upon or attributable to the Indemnitee or any member of
the Indemnitee's immediate family gaining in fact any personal profit or
advantage to which the Indemnitee was not legally entitled; provided that
the Indemnitee shall be protected under this Agreement as to any claims
upon which suit may be brought against Indemnitee by reason of any alleged
personal profit or advantage to which the Indemnitee was not legally
entitled, unless a final and non-appealable adjudication thereof adverse
to the Indemnitee by a court of competent jurisdiction shall establish
that Indemnitee committed act(s) of personal profit or advantage to which
the Indemnitee was not legally entitled; or
(iv) prior to a Change in Control, in connection with any Proceeding
(or any part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the Company (other than any Proceeding referred to in Sections 13(d) or
(e) below or any other
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Proceeding commenced to recover any Expenses referred to in Section 7(c) above)
or its directors, officers, employees or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law;
or
(v) if the funds at issue were paid pursuant to a settlement
approved by a court and indemnification would be inconsistent with any
condition with respect to indemnification expressly imposed by the court in
approving the settlement; or
(vi) based upon or attributable to the fraud, willful misconduct or
dishonesty of the Indemnitee seeking payment hereunder; provided that the
Indemnitee shall be protected under this Agreement as to any claims upon which
suit may be brought against Indemnitee by reason of any alleged fraud, willful
misconduct or dishonesty on Indemnitee's part, unless a final and non-appealable
adjudication thereof adverse to the Indemnitee by a court of competent
jurisdiction shall establish that Indemnitee committed fraud, willful misconduct
or act(s) of active and deliberate dishonesty, with actual dishonest purpose
and intent, which act(s) were material to the cause of action so adjudicated; or
(vii) for bodily injury, sickness, disease or death of any person,
or damage to or destruction of any tangible property, including loss of use
thereof, not in connection with performance of employment; or
(viii) for which indemnification under this Agreement is determined
by a final and non-appealable adjudication of a court of competent jurisdiction
to be unlawful and violative of public policy.
(b) Notwithstanding anything to the contrary set forth in or relied
upon by the Indemnitee in connection with this Agreement,
(i) for the purposes of this Agreement, the term "Company" and
"Enterprise" shall specifically exclude Loral Space & Communications Ltd., a
Bermuda corporation, or any direct or indirect subsidiary thereof that at the
time was not or that is not a direct or indirect subsidiary of the Company
(collectively, "Old Loral"), and the Company shall not have any obligations
pursuant to this Agreement by virtue of any assertion by any person, entity or
governmental authority or any determination of a court of competent
jurisdiction, that it is a successor to Old Loral or any other entity;
(ii) unless the Company expressly and unequivocably agrees hereafter
in writing otherwise, the Company shall not be obligated and shall not otherwise
be required to indemnify the Indemnitee for any Losses or Expenses or otherwise
incurred in his or her capacity as a director or officer of Old Loral, or for
serving, or having agreed to serve or allegedly to having served, at the request
of or to further the interests of Old Loral as a director, officer, trustee,
appointee, designee, employee, manager, partner, or agent of or in any other
capacity with another corporation
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or any limited liability company, partnership, joint venture, trust or other
enterprise, including any employee benefit plan of Old Loral or of any of its
affiliates and any charitable or not-for-profit enterprise, except as
specifically set forth in that certain Fourth Amended Joint Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code, dated as of June 3, 2005
of Loral Space & Communications Ltd. and its subsidiaries that are a party
thereto (as the same may be amended from time to time, the "Plan");
(iii) unless the Company expressly and unequivocably agrees hereafter
in writing otherwise, the Company shall not be obligated and shall not otherwise
be required to indemnify the Indemnitee with respect to any events or
circumstances occurring prior to the filing of a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code on July 11, 2003 by Loral Space &
Communications Ltd. and its subsidiaries that are a party thereto (the
"Bankruptcy Filing"), except as specifically set forth in the Plan;
(iv) the Company, however, shall indemnify and hold harmless the
Indemnitee from and against and for any and all obligations incurred directly or
indirectly by Old Loral with respect to any taxes owed by Old Loral or the
Debtors (as defined in the Plan) for the period prior to the Effective Date,
including interest and penalties, to any governmental entity and as to which Old
Loral or the Debtors are the primary obligor(s), as provided in the Certificate
of Incorporation;
(v) except as expressly provided in Section 8(b)(iv), unless the
Company expressly and unequivocably agrees hereafter in writing otherwise, any
indemnification of the Indemnitee with respect to Old Loral matters which the
Company is obligated to indemnify the Indemnitee pursuant to the Plan shall not
be governed by this Agreement and this Agreement shall not give Indemnitee any
rights whatsoever with respect to any indemnification with respect to Old Loral
matters.
(c) Notwithstanding anything to the contrary set forth in this
Agreement, the Company and the Indemnitee agree that: (i) their respective
rights and obligations hereunder shall be construed in accordance and consistent
with Article VII of the Certificate of Incorporation and Section 8 hereof, (ii)
in the event of any inconsistency between this Agreement and the Certificate of
Incorporation, or any provision herein and therein, the Certificate of
Incorporation shall prevail in all respects and (iii) unless the Company
expressly and unequivocably agrees hereafter in writing otherwise, the
provisions of this Agreement shall not be applicable to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section 8(b) hereof or is
inconsistent with the Certificate of Incorporation.
9. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding any provision of this Agreement to the contrary,
the Indemnitee shall be entitled to advances of Expenses incurred by him or her
or on his or her behalf in connection with a Proceeding that Indemnitee claims
is covered by Sections 3, 4 and 6 hereof, prior to a final determination of
eligibility for indemnification
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and prior to the final disposition of the Proceeding, upon the execution and
delivery to the Company of an undertaking by or on behalf of the Indemnitee
providing that the Indemnitee will repay such advances to the extent that it
ultimately is determined that Indemnitee is not entitled to be indemnified by
the Company. This Section 9(a) shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Section 8.
(b) The Company shall advance pursuant to Section 9(a) the Expenses
incurred by Indemnitee in connection with any Proceeding within thirty (30) days
after the receipt by the Company of a written statement or statements requesting
such advances from time to time, whether prior to or after final disposition of
any Proceeding. Advances shall be unsecured and interest free. Advances shall be
made without regard to Indemnitee's ability to repay such advances. Advances
shall include any and all reasonable Expenses incurred pursuing an action to
enforce such right to receive advances.
(c) The Company will be entitled to participate in the Proceeding at its
own expense.
(d) The Company shall not settle any action, claim or Proceeding (in whole
or in part) which would impose any Expense, judgment, fine, penalty or
limitation on the Indemnitee without the Indemnitee's prior written consent,
which consent shall not be unreasonably withheld.
10. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Within sixty (60) days after the actual receipt by Indemnitee of
notice that he or she is a party to or is requested to be a participant in (as a
witness or otherwise) any Proceeding, Indemnitee shall submit to the Company a
written notice identifying the Proceeding. The failure by the Indemnitee to
notify the Company within such 60-day period will not relieve the Company from
any liability which it may have to Indemnitee (i) otherwise than under this
Agreement, and (ii) under this Agreement, provided that if the Company can
establish that such failure to notify the Company in a timely manner resulted in
actual prejudice to the Company, then the Company will be relieved from
liability only to the extent of such actual prejudice.
(b) Indemnitee shall at the time of giving such notice pursuant to Section
10(a) or thereafter deliver to the Company a written application for
indemnification. Such application may be delivered at such time as Indemnitee
deems appropriate in his or her sole discretion. Following delivery of such a
written application for indemnification by Indemnitee, the Indemnitee's
entitlement to indemnification shall be determined promptly according to Section
11(a) of this Agreement and the outcome of such determination shall be reported
to Indemnitee in writing within sixty (60) days of the submission of such
application.
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11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon written application by Indemnitee for indemnification pursuant
to Section 10(b) or written statement by Indemnitee for advances of Expenses
pursuant to Section 9(b), a determination with respect to Indemnitee's
entitlement thereto pursuant to the mandatory terms of this Agreement, pursuant
to statute, or pursuant to other sources of right to indemnity, and pursuant to
Section 12 of this Agreement shall be made in the specific case: (i) by a
majority vote of the Disinterested Directors, whether or not such officers
otherwise would constitute a quorum of the Board; (ii) by a committee of
Disinterested Directors designated by a majority vote of such officers, whether
or not such officers would otherwise constitute a quorum of the Board, (iii) if
there are no Disinterested Directors or if so requested by (x) the Indemnitee in
his or her sole discretion or (y) the Disinterested Directors, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee or (iv) by the stockholders of the Company. Indemnitee shall
reasonably cooperate with the person, persons or entity making the determination
with respect to Indemnitee's entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless from any such costs and expenses.
(b) If it is determined that Indemnitee is entitled to indemnification
requested by the Indemnitee in a written application submitted to the Company
pursuant to Section 10(b), payment to Indemnitee shall be made within thirty
(30) days after such determination. All advances of Expenses requested in a
written statement by Indemnitee pursuant to Section 9(b) prior to a final
determination of eligibility for indemnification shall be paid in accordance
with Section 9.
(c) In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 11(a) hereof, the
Independent Counsel shall be selected as provided in this Section 11(c). If a
Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising him or her of the identity of the Independent Counsel so selected. If a
Change in Control shall have occurred, the Independent Counsel shall be selected
by Indemnitee (unless Indemnitee shall request that such selection be made by
the Board, in which event the preceding sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the Company, as
the case may be, may, within ten (10) days after such written notice of
selection shall have been received, deliver to the Company or to Indemnitee, as
the case may be, a written objection to such selection; provided, however, that
such objection may
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be asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section 2 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit.
(d) If, within twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 9(b) or 10(b) hereof, no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 11(a) hereof.
(e) The Company agrees to pay the reasonable fees and expenses of the
Independent Counsel and to fully indemnify such Independent Counsel against any
and all Expenses, claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
(f) Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 13(a) of this Agreement, any Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
12. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) Presumption in Favor of Indemnitee. In making a determination with
respect to entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted an application
for indemnification in accordance with Section 10(a) of this Agreement, and the
Company shall have the burden of proof to overcome that presumption.
(b) No Presumption Against Indemnitee. Neither the failure of the
Company (including by its officers or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement
nor an actual determination by the Company (including by its officers or
Independent Counsel) that Indemnitee has not met the applicable standard of
conduct for indemnification shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.
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(c) Sixty Day Period for Determination. If the person, persons or
entity empowered or selected under Section 11 of this Agreement to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company of an
application therefor, a determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the application for indemnification,
or (ii) a prohibition of such indemnification under applicable law; provided,
however, that such 60-day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person, persons or entity making
the determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(d) No Presumption from Termination of a Proceeding. The termination of
any Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and for a
purpose which he or she reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(e) Reliance as Safe Harbor. For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's
action or failure to act is based on the records or books of account of the
Company or any Enterprise other than the Company, including financial
statements, or on information supplied to Indemnitee by the officers of the
Company or any Enterprise other than the Company in the course of their duties,
or on the advice of legal counsel for the Company or any Enterprise other than
the Company or on information or records given or reports made to the Company or
any Enterprise other than the Company by an independent certified public
accountant or by an appraiser or other expert selected by the Company or any
Enterprise other than the Company, except if the Indemnitee knew or had reason
to know that such records or books of account of the Company, information
supplied by the officers of the Company, advice of legal counsel or information
or records given or reports made by an independent certified public accountant
or by an appraiser or other expert were materially false or inaccurate. The
provisions of this Section 12(e) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed or
found to have met any applicable standard of conduct.
(f) Actions of Others. The knowledge and/or actions, or failure to act,
of any other director, officer, trustee, partner, member, fiduciary, employee or
agent of the Company or any Enterprise other than the Company shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.
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13. REMEDIES OF INDEMNITEE.
(a) Adjudication/Arbitration. In the event that (i) a determination is
made pursuant to Section 11 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 9 of this Agreement, (iii) subject to Section 12(c), no
determination of entitlement to indemnification shall have been made pursuant to
Section 11(a) of this Agreement within 60 days after receipt by the Company of
the application for indemnification, or (iv) payment of indemnification is not
made pursuant to Sections 3, 4, 5, 6, 7 and 11(b) of this Agreement within ten
(10) days after a determination has been made that Indemnitee is entitled to
indemnification, or after receipt by the Company of a written request for any
additional monies owed with respect to a Proceeding as to which it already has
been determined that Indemnitee is entitled to indemnification, Indemnitee shall
be entitled to an adjudication by a court of his or her entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or
her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The Company shall not oppose Indemnitee's right to seek
any such adjudication or award in arbitration.
(b) Indemnitee Not Prejudiced by Prior Adverse Determination. In the
event that a determination shall have been made pursuant to Section 11(a) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 13 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits, and
Indemnitee shall not be prejudiced by reason of the prior adverse determination.
In any judicial proceeding or arbitration commenced pursuant to this Section 13,
the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) Company Bound by Prior Determination. If a determination shall have
been made pursuant to Section 11(a) of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 13,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, in connection with the application for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) Expenses. In the event that Indemnitee, pursuant to this Section
13, seeks a judicial adjudication of or an award in arbitration to enforce his
or her 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 Expenses actually and reasonably
incurred by him or her in such judicial adjudication or arbitration if it shall
be determined in such judicial adjudication or arbitration that Indemnitee is
entitled to receive all or part of the indemnification or
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advancement of Expenses sought which the Company had disputed prior to the
commencement of the judicial proceeding or arbitration.
(e) Advances of Expenses. If requested by Indemnitee, the Company shall
(within ten (10) days after receipt by the Company of a written request
therefore) advance to Indemnitee the Expenses which are incurred by Indemnitee
in connection with any judicial proceeding or arbitration brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement
or under any directors' and officers' liability insurance policies maintained by
the Company, if the Indemnitee has submitted an undertaking to repay such
Expenses if Indemnitee ultimately is determined to not be entitled to such
indemnification, advancement of Expenses or insurance recovery, as the case may
be. The Indemnitee's financial ability to repay any such advances shall not be a
basis for the Company to decline to make such advances.
(f) Precluded Assertions by the Company. The Company shall be precluded
from asserting in any judicial proceeding or arbitration commenced pursuant to
this Section 13 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement.
14. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) Rights of Indemnitee Not Exclusive. The rights of indemnification
and to receive advancement of Expenses as provided by this Agreement shall,
subject to Section 8 and Article VII of the Certificate of Incorporation, not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation, the By-Laws,
any agreement, vote of stockholders or a resolution of officers, or otherwise.
No right or remedy herein conferred by this Agreement is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent or subsequent assertion or employment of any other right or remedy.
(b) Survival of Rights. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his or her Corporate Status prior to such amendment,
alteration or repeal.
(c) Change of Law. To the extent that a change in Delaware law, whether
by statute or judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Certificate of
Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change; provided, however, that in no event shall such change in law affect
the limitations provided in Section 8(i) of the Certificate of Incorporation, as
in effect on the date hereof.
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(d) Insurance. To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
trustees, partners, members, fiduciaries, employees, or agents of the Company or
of any other Enterprise which such person serves at the request of the Company,
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 such
director, trustee, partner, member, fiduciary, officer, employee or agent under
such policy or policies. If, at the time the Company receives notice from any
source of a Proceeding as to which Indemnitee is a party or a participant (as a
witness or otherwise) the Company has director and officer liability insurance
in effect that covers Indemnitee, the Company shall give prompt notice of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies.
(e) Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(f) Other Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable (or for which
advancement is provided hereunder) if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(g) Other Indemnification. The Company's obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at the request of
the Company as a director, officer, trustee, partner, member, fiduciary,
employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such Enterprise.
15. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date that Indemnitee
shall have ceased to serve as any of the following: a director, officer, agent
or employee of the Company or as a director, officer, trustee, partner, member,
fiduciary, employee or agent of any other corporation, partnership, joint
venture, trust, employee benefit plan or other Enterprise which Indemnitee
served at the request of the Company; or (b) one (1) year after the final
termination of any Proceeding (including after the expiration of any rights of
appeal) then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 13 of this Agreement (including any
rights of appeal of any Proceeding commenced pursuant to Section 13). This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his or her heirs, executors and
administrators.
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16. SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (c) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
17. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve, or to continue to serve, as a director, officer,
employee and/or agent of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving or continuing to serve as a
director, officer, employee and/or agent of the Company.
(b) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
18. MODIFICATION 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
nor shall any waiver constitute a continuing waiver.
19. D&O TAIL COVERAGE. Upon a Change of Control where a successor to all
or substantially all of the assets of the Company does not agree to be bound by
this Agreement, the Company shall either (i) use commercially best efforts to
cause to be issued tail coverage extending its directors and officers liability
insurance policy, such that it covers Indemnitee and is customary and reasonable
under such circumstance, as determined by the Board in good faith, or (ii) if
the Company has provided protection against liability to any director of the
Company who is also an employee or nominee of MHR Fund Management LLC or its
affiliates (each, an "MHR Director"), provide Indemnitee with no less than
equivalent protection against liability than is provided by the Company to any
MHR Director. Upon the Company's satisfaction of its obligations pursuant to
this Section 19, Section 20 hereof shall cease to be of any force and effect.
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20. [RESERVED]
21. SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement will inure to the benefit of and be enforceable by
the Indemnitee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, legatees and other successors.
(b) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in Section
21(a). Without limiting the generality or effect of the foregoing, Indemnitee's
right to receive payments hereunder will not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by the
Indemnitee's will or by the laws of descent and distribution, and, in the event
of any attempted assignment or transfer contrary to this Section 21(b), the
Company will have no liability to pay any amount so attempted to be assigned or
transferred.
22. NOTICES. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
if: (i) delivered by hand and receipted for by the party to whom said notice or
other communication shall have been directed, on the date of such receipt, or
(ii) 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, at the address indicated on the signature page of
this Agreement, or such other address as Indemnitee subsequently shall provide
in writing to the Company.
(b) If to the Company to:
Space Systems/Loral, Inc.
c/o Loral Space & Communications Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or to any other address as may have been furnished to Indemnitee in
writing by the Company.
23. CONTRIBUTION. To the fullest extent permissible under applicable law,
if the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is
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deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the Company
and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
24. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the
legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflict of laws, principles or rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 13 of this Agreement,
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of Delaware (the
"Delaware Court"), and not in any other state or federal court in the United
States of America or any court in any other country, (ii) consent to submit to
the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii)
irrevocably appoint, to the extent such party is not a resident of the State of
Delaware, Corporation Service Company; 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000;
Wilmington; New Castle County; Delaware 19808 as its agent in the State of
Delaware as such party's agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (v) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
25. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
26. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the day and year first above written.
SPACE SYSTEMS/LORAL, INC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name:
Title:
INDEMNITEE
By: /s/ C. Xxxxxxx XxXxxx
-----------------------------------
Name: C. Xxxxxxx XxXxxx
Address:
Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Attention:
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