Indemnification Agreement: Chyron Corporation (New York)
AGREEMENT, effective as of June 5, 1997 between Chyron Corporation,
a New York corporation (the "Company"), and Xxxxxx Xxxxxx (the
"Indemnitee").
WHEREAS, it is essential to the Company to remain and attract as
directors and officers the most capable persons available; and
WHEREAS, Indemnitee is a director or officer of the Company; and
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims being asserted against directors
and officers of public companies in today's environment; and
WHEREAS, the By-Laws of the Company provide: "The Corporation shall
indemnify any person to the full extent permitted, and in the manner
provided, by the New York Business Corporation Law ["BCL"], as the
same now exists or may hereafter be amended" and
WHEREAS, this Agreement satisfies the provision of Section 721 of
the BCL: and
WHEREAS, in recognition of the fact that the Indemnitee continues to
serve as a director or officer of the Company in part in reliance on
the aforesaid By-Laws and Indemnitee's need for substantial
protection against personal liability in order to enhance
Indemnitee's continued service to the Company in an effective
manner, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such By-Laws will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such By-Laws or any change in the
composition of the Company's Board of Directors or any acquisition
transaction relating to the Company), and due to the potential
inadequacy of the Company's directors' and officers' liability
insurance coverage, the Company wishes to provide in this Agreement
for the indemnification of, and the advancing of expenses to,
Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of
Indemnitee under the Company's directors' and officers' liability
insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to service the Company directly or, in its request, with
another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Certain Definitions.
(a) Approved Law Firm: shall mean any law firm (i) located in New
York City and (ii) rated "av" by Xxxxxxxxxx-Xxxxxx Law Directory.
(b) Board of Directors: shall mean the Board of Directors of the
Company.
(c) Change in Control: shall be deemed to have occurred if (i) any
"person" (as such term isused in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than any
stockholder (and/or affiliate of such stockholder) on the date of
this Agreement or a trustee or other fiduciary holding securities
under an employee benefit plan of the Company in substantially the
same portions as their ownership of stock of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly of securities of the Company
representing 15 percent or more of the totaling voting power
represented by the Company's then outstanding Voting Securities
(such person being hereinafter referred to as an "Acquiring
Person"), or (ii) during any 24-consecutive-month period,
individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the shareholders
of the Company approve a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entry) at least 80 percent of the total voting
power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (iv) the shareholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all the
Company's assets.
(d) Claim: shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether
conducted by the company or any other party, that Indemnitee in
good faith believes might lead to the institution of any such
action, suite or proceeding, whether civil, criminal,
administrative, investigative or other.
(e) Expenses: shall include attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, being a witness in or
participate in, any Claim relating to any Indemnifiable Event,
together with interest, computed at the Company's average cost of
funds for short-term borrowings, accrued from the date of incurrence
of such expense to the date Indemnitee receives reimbursement
therefore.
(f) Indemnifiable Event: shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or is or was serving at
the request of the Company as a director, officer, employee,
trustee, agent or fiduciary of another corporation of any type or
kind, domestic or foreign, partnership, joint venture, trust,
employee benefit plan or other enterprise, or by reason of anything
done or not done by Indemnitee in such capacity. Without limitation
of any indemnification provided hereunder, an Indemnitee serving (i)
another corporation, partnership, joint venture or trust of which 10
percent or more of the voting power or residual economic interest is
held, directly or indirectly, by the Company, or (ii) any employee
benefit plan of the Company or an entity referred to in clause (i),
in any capacity shall be deemed to be doing so at the request of the
Company.
(g) Reviewing Party: shall be (i) the Board of Directors acting by
quorum consisting of directors who are not parties to the particular
Claim with respect to which Indemnitee is seeking indemnification,
or (ii) if such a quorum is not obtainable or, even if obtainable,
if a quorum of disinterested directors so directs, (A) the Board of
Directors upon the opinion in writing of independent legal counsel
that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in Section 2 of this
Agreement and in Section 721 of the BCL has been met by the
Indemnitee or (B) the shareholders upon a finding that the
Indemnitee has met the applicable standard of conduct referred to in
clause (ii)(A) of this definition.
(h) Voting Securities: shall mean any securities of the Company
which vote generally in the election of the directors.
2. Basic Indemnification Arrangement.
If Indemnitee was, is or becomes at any time a party to, or witness
or other participant in, or is threatened to be made a party to, or
witness or other participant in, a Claim by reason of (or arising in
part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written
demand is presented to the Company, against any and all Expenses,
judgements, fines (including excise taxes assessed on an Indemnitee
with respect to an employee benefit plan), penalties and amounts
paid in settlement (including all interest, assessments and other
charges paid or payable in connection with, or in respect of, such
Expenses, judgements, fines, penalties or amounts paid in
settlement) of such Claim. If so requested by Indemnitee, the
Company shall advance (within two business days of such request) any
and all Expenses to Indemnitee (an "Expense Advance").
Notwithstanding anything in this Agreement to the contrary; (i)
Indemnitee shall not be entitled to indemnification pursuant to this
Agreement if a judgement or other final adjudication adverse to the
Indemnitee establishes that Indemnitee's acts were committed in bad
faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or
that Indemnitee personally gained in fact a financial profit or
other advantage to which Indemnitee was not legally entitled and
(ii) prior to a Change in Control Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection with any
Claim initiated by Indemnitee against the Company or any director or
officer of the Company unless the Company has jointed in or
consented to the initiation of such Claim.
3. Payment.
Notwithstanding the provision of Section 2, the obligations of the
Company under Section 2 (which shall in no event be deemed to
preclude any right to indemnification to which Indemnitee may be
entitled under Section 723(a) of the BCL) shall be subject to the
condition that the Reviewing Party shall have authorized such
indemnification in the specific case by having determined that
Indemnitee is permitted to be indemnified under the applicable
standard of conduct set forth in Section 2 and applicable law. The
Company shall promptly call a meeting of the Board of Directors with
respect to a Claim and agrees to use its best efforts to facilitate
a prompt determination by the Receiving Party with respect to the
Claim. Indemnitee shall be afforded the opportunity to make
submissions to the Reviewing Party with respect to the Claim. The
obligation of the company to make an Expense Advance pursuant to
Section 2 shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee would
not be permitted to be so indemnified under Section 2 and applicable
law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees and undertakes to the full extent required by
paragraph (a) of Section 725 of the BCL to reimburse the Company)
for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the
Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). If there has been no determination by
the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have the
right to commence litigation in any court in the State of New York
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.
4. Change in Control.
If there is a Change in Control of the Company (other than a Change
in Control which has been approved by a majority of the Board of
Directors who were directors immediately prior to such Change in
Control) then (i) all determinations by the Company pursuant to the
first sentence of Section 3 hereof and Section 723(b) of the BCL
shall be made pursuant to subparagraph (1) or (2)(A) of such Section
723(b) and (ii) with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement or By-
law of the Company now or hereinafter in effect relating to Claims
for Indemnifiable Events (including, but not limited to, any option
to be rendered pursuant to subparagraph (2)(A) of Section 723(b) of
the BCL) the Company (including the Board of Directors) shall seek
legal advice from (and only from) special, independent counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise
performed services for the Company (or any subsidiary of the
Company) or the Acquiring Person (or any affiliate or associate of
such Acquiring Person) within the last five years (other than in
connection with such matters) or indemnitee. Unless Indemnitee has
theretofore selected counsel pursuant to this Section 4 and such
counsel has been approved by the Company, any Approved Law Firm
shall be deemed to satisfy the requirements set forth above. Such
counsel, among otherthings, shall render its written opinion to the
Company, the Board of Directors and Indemnitee as to whether and to
what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees
of the special, independent counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising our of or
relating to this Agreement or its engagement pursuant hereto. As
used in this Section 4, the terms "affiliate" and "associate" shall
have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended and in effect on the date of this Agreement.
5. Indemnification for Additional Expenses.
The Company shall indemnify Indemnitee against any and all expenses
(including attorneys' fees) and, if requested by Indemnitee, shall
(within two business days of such request) advance such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any
claim asserted or action brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or By-law of the Company now
or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advance expenses payment or insurance recovery, as
the case may be.
6. Partial Indemnity, Etc.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the
Expenses, judgements, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereto to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be
indemnified, to the extent permitted by law, against all Expenses
incurred in connection with such Indemnifiable Event. In connection
with any determination by the Reviewing Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder, the
burden of proof shall, to the extent permitted by law, be on the
Company to establish that Indemnitee is not so entitled.
7. Presumption.
For purposes of this Agreement, the termination of any claim,
action, suite or proceeding, whether civil or criminal, by judgment,
order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not create a presumption 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.
8. Nonexclusivity, Etc.
The rights of the Indemnitee hereunder shall be in addition to any
other rights Indemnitee may have under the By-laws of the Company,
the BCL or otherwise. To the extent that a change in the BCL
(whether by statue or judicial decision) permits greater
indemnification by agreement than would be afforded currently under
the By-laws of the Company 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.
9. Liability Insurance
To the extent the Company maintains an insurance policy or policies
providing directors' and officers' liability insurance, 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 director or officer of the Company.
10. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company or
any affiliate of the Company against Indemnitee, Indemnitee's
spouse, heirs, executors or personal or legal representatives after
the expiration of two years from the date of accrual of such cause
of action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted
by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter
period shall govern.
11. Amendments, Etc. 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 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 such waiver
constitute a continuing waiver.
12. Subrogation. In the event of 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 shall do everything that may be necessary to secure
such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
13. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any
claim made against Indemnitee to the extent Indemnitee has otherwise
actually received payment (under any insurance policy, By-law or
otherwise) of the amounts otherwise Indemnifiable hereunder.
14. Specific Performance. The parties recognize that if any
provision of this Agreement is violated by the Company, Indemnitee
may be without an adequate remedy at law. Accordingly, in the event
of any such violation, the Indemnitee shall be entitled, if
Indemnitee so elects, to institute proceedings, either at law or in
equity, to obtain damages, to enforce specific performance, to
enjoin such violation, or to obtain any relief or any combination of
the foregoing as Indemnitee may elect to pursue.
15. Binding Effect, Etc. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company),
assigns, 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 of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be
severable if any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court
of competent jurisdication to be invalid, void or other wise
unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by, and be
construed and enforced in accordance with, the laws of the State of
New York applicable to contracts made and to be performed in such
state without giving effect to the principles of conflicts of laws.
Executed this 5th day of June 1997.
CHYRON CORPORATION
/s/Xxxxxx X. XxXxxx
Xxxxxx X. XxXxxx
Secretary
/s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
