EXHIBIT 10.5
FORM OF
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT, dated as of __________, by and between LTM
Holdings, Inc., a Delaware corporation (the "Company"), and the director and/or
officer of the Company whose name appears on the signature page of this
Agreement ("Indemnitee").
RECITALS
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A. Highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
unless they are provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them arising out of
their service to and activities on behalf of the corporations.
B. The Board of Directors of the Company (the "Board") has determined
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
C. It is reasonable, prudent and necessary for the Company contractually
to obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free
from undue concern that they will not be so indemnified.
D. Indemnitee is willing to serve, continue to serve and take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
AGREEMENT
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In consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Disinterested Director" shall mean a director of the Company who is
not or was not a party to the Proceeding in respect of which indemnification is
being sought by Indemnitee.
(b) "Expenses" shall include all reasonable attorneys' fees and costs,
retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other
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disbursements or expenses customarily incurred in connection with asserting or
defending claims.
(c) "Independent Counsel" shall mean a law firm or lawyer that neither
presently is nor in the past five years has been retained to represent: (i) the
Company or Indemnitee in any matter material to either such party 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 firm or 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 right to indemnification under this Agreement. All fees and
expenses of the Independent Counsel incurred in connection with acting pursuant
to this Agreement shall be borne by the Company.
(d) "Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative; provided,
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however, that the term "Proceeding" shall include any action instituted by an
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Indemnitee (other than an action to enforce indemnification rights under this
Agreement) only if such action is authorized by the Board of Directors.
2. Service by Indemnitee. Indemnitee agrees to begin or continue to serve
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the Company or other corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise controlled by the Company or in which such
Indemnitee is serving at the request of the Company (all of which are
collectively referred to as an "Affiliate") as a director, officer, trustee or
similar person. Notwithstanding anything contained herein, this Agreement shall
not create a contract of employment between the Company and Indemnitee, and the
termination of Indemnitee's relationship with the Company or an Affiliate by
either party hereto shall not be restricted by this Agreement.
3. Indemnification. The Company shall indemnify Indemnitee for, and hold
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Indemnitee harmless from and against, any and all Expenses, losses, claims,
liabilities, judgments, fines and amounts paid in settlement at any time
incurred by or assessed against Indemnitee arising out of or in connection with
the service of Indemnitee as a director, advisory director, Board Committee
member, officer or similar person with the Company or of an Affiliate
(collectively referred to as an "Officer or Director of the Company") to the
fullest extent permitted by the laws of the State of Delaware in effect on the
date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification. Without diminishing the
scope of the indemnification provided by this Section 3, the rights of
indemnification of Indemnitee provided hereunder shall include but shall not be
limited to those rights set forth hereinafter.
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4. Indemnification for Costs, Charges and Expenses of Party Who is Wholly
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or Partly Successful. Notwithstanding any provision of this Agreement, to the
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extent that Indemnitee has been wholly successful on the merits or otherwise
absolved in any Proceeding on any claim, issue or matter, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee or on Indemnitee's
behalf in connection therewith. 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 to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines and amounts paid in settlement, incurred
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by Indemnitee in connection with each successfully resolved claim, issue or
matter. For purposes of this Section and without limitation, the termination of
any such claim, issue or matter by dismissal with or without prejudice shall be
deemed to be a successful resolution as to such claim, issue or matter.
5. Indemnification for Expenses of a Witness. Notwithstanding any other
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provision of this Agreement, to the extent that Indemnitee is, by reason of the
fact that Indemnitee is or was an Officer or Director of the Company or any
other entity which Indemnitee is or was serving at the request of the Company, a
witness in any Proceeding, Indemnitee shall be indemnified by the Company
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection therewith.
6. Advancement of Expenses and Costs. All Expenses incurred by or on
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behalf of Indemnitee (or reasonably expected by Indemnitee to be incurred by
Indemnitee within three months) in connection with any Proceeding shall be paid
by the Company in advance of the final disposition of such Proceeding within 20
days after the receipt by the Company of a statement or statements from
Indemnitee requesting from time to time such advance or advances, whether or not
a determination to indemnify has been made under Section 9. Indemnitee's
entitlement to such advancement of Expenses shall include those incurred in
connection with any Proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall
reasonably evidence such expenses incurred (or reasonably expected to be
incurred) by Indemnitee in connection therewith and shall include or be
accompanied by a written undertaking by or on behalf of Indemnitee to repay such
amount if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified therefor pursuant to the terms of this Agreement. The financial
ability of an Indemnitee to repay an advance shall not be a prerequisite to the
making of such an advance.
7. Procedure for Determination of Entitlement to Indemnification. (a)
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When seeking indemnification under this Agreement, Indemnitee shall submit a
written request for indemnification to the Company. Such request shall include
documentation or information which is reasonably necessary for the Company to
make a determination of Indemnitee's entitlement to indemnification hereunder
and which is reasonably available to Indemnitee. Determination of Indemnitee's
entitlement to indemnification shall be made promptly, but in no event later
than 30 days after receipt by the Company of Indemnitee's written request for
indemnification. The Secretary of the Company shall, promptly upon receipt of
Indemnitee's request for indemnification, advise the Board that Indemnitee has
made such request for indemnification.
(b) The entitlement of Indemnitee to indemnification under this Agreement
shall be determined in the specific case by a majority vote of the Disinterested
Directors
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whether or not constituting a quorum of the Board, unless the Board, by the
majority vote of Disinterested Directors, directs for cause that the
determination shall be made by Independent Counsel.
(c) In the event the determination of entitlement is to be made by
Independent Counsel, such Independent Counsel shall be selected by the Board and
approved by Indemnitee. Upon failure of the Board to so select such Independent
Counsel or upon failure of Indemnitee to so approve, such Independent Counsel
shall be selected by the Chancellor of the State of Delaware or such other
person as the Chancellor shall designate to make such selection.
(d) If the Board or Independent Counsel shall have determined that
Indemnitee is not entitled to indemnification to the full extent of Indemnitee's
request, Indemnitee shall have the right to seek entitlement to indemnification
in accordance with the procedures set forth in Section 10 hereof.
(e) If the person or persons empowered pursuant to Section 9(b) hereof to
make a determination with respect to entitlement to indemnification shall have
failed to make the requested determination within 90 days after receipt by the
Company of such request, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be
absolutely entitled to such indemnification, absent (i) misrepresentation by
Indemnitee of a material fact in the request for indemnification or (ii) a
final judicial determination that all or any part of such indemnification is
expressly prohibited by law.
(f) The termination of any Proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, adversely affect the rights of Indemnitee to indemnification hereunder
except as may be specifically provided herein, or create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company or create
a presumption that (with respect to any criminal action or proceeding)
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful.
(g) For purposes of any determination of good faith hereunder, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is based on
the records or books of account of the Company or any Affiliate, including
financial statements, or on information supplied to Indemnitee by the officers
of the Company or an Affiliate in the course of their duties, or on the advice
of legal counsel for the Company or an Affiliate by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Company or an Affiliate. The provisions of this Section 9(g) shall
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not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(h) The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Company or an Affiliate shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
8. Remedies in Cases of Determination not to Indemnify or to Advance
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Expenses. (a) In the event that (i) a determination is made that Indemnitee is
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not entitled to indemnification hereunder, (ii) advances are not made pursuant
to Section 8 hereof or (iii) payment has not been timely made following a
determination of entitlement to indemnification pursuant to Section 9 hereof,
Indemnitee shall be entitled to seek a final adjudication in an appropriate
court of the State of Delaware or any other court of competent jurisdiction of
Indemnitee's entitlement to such indemnification or advance.
(b) In the event that a determination has been made in accordance with the
procedures set forth in Section 9 hereof, in whole or in part, that Indemnitee
is not entitled to indemnification, any such judicial proceeding or arbitration
shall be made de novo and Indemnitee shall not be prejudiced by reason of any
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such prior determination that Indemnitee is not entitled to indemnification.
(c) If a determination is made or deemed to have been made pursuant to the
terms of Section 9 or 10 hereof that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding or
arbitration in the absence of (i) a misrepresentation of a material fact by
Indemnitee or (ii) a final judicial determination that all or any part of such
indemnification is expressly prohibited by law.
(d) The Company and Indemnitee agree that they shall be precluded from
asserting that the procedures and presumptions of this Agreement are not valid,
binding and enforceable. The Company and Indemnitee further agree to stipulate
in any such court that the Company and Indemnitee are bound by all of the
provisions of this Agreement and are precluded from making any assertion to the
contrary.
(e) To the extent deemed appropriate by the court, interest shall be paid
by the Company to Indemnitee at a reasonable interest rate for amounts which the
Company indemnifies or is obliged to indemnify the Indemnitee.
9. Expenses Incurred by Indemnitee to Enforce this Agreement. Reasonable
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expenses incurred by Indemnitee in connection with the preparation and
submission of Indemnitee's request for indemnification hereunder shall be borne
by the Company. In the event that Indemnitee is a party to or intervenes in any
proceeding in which the
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validity or enforceability of this Agreement is at issue or seeks an
adjudication to enforce Indemnitee's rights under, or to recover damages for
breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole in such
action, shall be entitled to recover from the Company and shall be indemnified
by the Company against, any Expenses incurred by Indemnitee. If it is determined
that Indemnitee is entitled to indemnification for part (but not all) of the
indemnification so requested, Expenses incurred in seeking enforcement of such
partial indemnification shall be reasonably prorated among such claims, issues
or matters for which the Indemnitee is entitled to indemnification and for such
claims, issues or matters for which the Indemnitee is not so entitled.
10. Non-Exclusivity. The rights of indemnification and to receive advances
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as provided by this Agreement shall not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable law, a
certificate of incorporation, By-Laws, any agreement, a vote of stockholders or
a resolution of directors or otherwise. No amendment, alteration, rescission or
replacement of this Agreement or any provision hereof shall be effective as to
Indemnitee with respect to any action taken or omitted to be taken by such
Indemnitee in Indemnitee's position with the Company or an Affiliate or any
other entity which Indemnitee is or was serving at the request of the Company
prior to such amendment, alteration, rescission or replacement.
11. Duration of Agreement. This Agreement shall apply to any claim
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asserted and any Expenses incurred in connection with any claim asserted on or
after the effective date of this Agreement and shall continue until and
terminate upon the later of the date: (a) 10 years after Indemnitee has ceased
to occupy any of the positions or have any of the relationships described in
Section 3, 4 or 5 of this Agreement; or (b) one year after the final termination
of all pending or threatened Proceedings of the kind described herein with
respect to Indemnitee. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and
Indemnitee's spouse, assigns, heirs, devisee, executors, administrators or other
legal representatives.
12. Severability. Should any part, term or condition hereof be declared
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illegal or unenforceable or in conflict with any other law, the validity of the
remaining portions of provisions of this Agreement shall not be affected
thereby, and the illegal or unenforceable portions of this Agreement shall be
and hereby are redrafted to conform with applicable law, while leaving the
remaining portions of this Agreement intact.
13. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but all of which shall be deemed an
original, but all of which together shall constitute one and the same document.
14. Headings. Section headings are for convenience only and do not control
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or affect meaning or interpretation of any terms or provisions of this
Agreement.
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15. Modification and Waiver. No supplement, modification or amendment of
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this Agreement shall be binding unless executed in writing by each of the
parties hereto.
16. No Duplicative Payment. The Company shall not be liable under this
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Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
17. Notices. All notices, requests, demands and other communications
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provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when mailed
in any general or branch office of the United States Postal Service, enclosed in
a registered or certificated postpaid envelope, or sent by Federal Express or
other similar overnight courier service, addressed to the address of the parties
stated below or to such changed address as such party may have fixed by notice
or, if given by telecopier, when such telecopy is transmitted and the
appropriate answerback is received.
(a) If to Indemnitee, to the address appearing on the signature page
hereof.
(b) If to the Company to:
LTM Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
18. Governing Law. The parties agree that this Agreement shall be governed
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by, and construed and enforced in accordance with, the internal laws of the
State of Delaware without regard to its conflicts of law rules.
19. Entire Agreement. This Agreement constitutes the entire understanding
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between the parties and supersedes all proposals, commitments, writings,
negotiations and understandings, oral and written, and all other communications
between the parties relating to the subject matter of this Agreement. A waiver
by any party of any breach or violation of this Agreement shall not be deemed or
construed as a waiver of any subsequent breach or violation thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LTM Holdings, Inc.
By: _____________________________
INDEMNITEE
_________________________________
Signature
_________________________________
Name (Printed)
_________________________________
Address
_________________________________
City and State
_________________________________
Telecopier Number
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