FORM OF INDEMNIFICATION AGREEMENT
This Agreement made and entered into as of the ____
day of _______________, 1996, by and between VIDEO BROADCASTING
CORPORATION, a Delaware corporation, hereinafter called the "Company,"
and ______________, an individual residing at
______________________________________ (the "Indemnitee").
W I T N E S S E T H :
WHEREAS, the Company is desirous of providing
Indemnitee with limitation of liability and indemnification to the
fullest extent permitted by law;
WHEREAS, the Company desires to have Indemnitee
serve or continue to serve as a director or officer of the Company or
of any other corporation, subsidiary, partnership, joint venture,
trust or other enterprise (herein called "Affiliate") of which he has
been or is serving at the request, for the convenience, or to
represent the interest of the Company, with the assurance that the
Company will indemnify him against costs and risks of claims for
damages by reason of his being a director or officer of the Company or
of an Affiliate, or by reason of his decisions or actions on their
behalf;
WHEREAS, the Company has agreed to provide
Indemnitee with the benefits contemplated by this Agreement, together
with coverage under any directors' and officers' liability insurance
policy presently in force or which may be obtained in
the future, although there is no assurance that the Company will apply
for or obtain any such insurance; and
WHEREAS, Indemnitee desires to serve or to continue
to serve as such director or officer provided that he is furnished
with the indemnity provided for hereinafter, in one or more of such
capacities.
NOW, THEREFORE, for and in consideration of the
premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1. AGREEMENT TO SERVE. Indemnitee will serve and/or
continue to serve the Company or an Affiliate of the Company, at the
will of the Company, as a director and/or officer so long as he is
duly elected and qualified in accordance with the provisions of the
Company's Certificate of Incorporation and the By-Laws thereof, or
until such time as he tenders his resignation in writing.
2. INDEMNIFICATION.
A. The Company hereby agrees to
indemnify and hold harmless Indemnitee to the fullest extent permitted
by the Company's Certificate of Incorporation, its By-Laws, the
Delaware General Corporation Law (the "DGCL") or any other applicable
law, as any or all may be amended from time to time, against any and
all amounts which he is or becomes obligated to pay because of any
charge, claim or claims, whether civil or criminal, made against him
because of any act or omission or neglect or breach of duty, including
any actual or alleged error or misstatement or misleading statement or
other act done or wrongfully attempted, which he commits or suffers
while acting in his capacity as an officer or director of the
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Company or an Affiliate thereof and because of his being such an
officer or director or serving in any other capacity requested by the
Company; provided, however, that if the DGCL is repealed or modified
the result of which limits Indemnitee's indemnification rights and/or
protection under the DGCL, then with respect to any event occurring
prior to such repeal or modification, Indemnitee shall be entitled to
the indemnification rights and protection provided under the DGCL as
if such repeal or modification had not occurred, provided such
indemnification would not result in the Company violating any
provision of the DGCL or other applicable law. The payments which the
Company will be obligated to make hereunder shall include but shall
not be limited to all expenses (including reasonable attorneys' fees),
damages, judgments, fines, settlements and costs, costs of
investigation and costs of defense of any actual or threatened legal
actions or claims, or of any actual or threatened judicial,
administrative or other proceedings, and appeals therefrom and costs
of attachment or similar bonds, and shall be payable within 30 days
after the Indemnitee has given the Company a written claim for such
funds, as set forth in Section 2(B) hereof; provided, however, that
the Company shall not be obligated to pay fines or other obligations
or fees imposed by law or otherwise which it is prohibited by
applicable law from paying as indemnity. To the full extent so
permitted, the foregoing shall apply to actions by or in the right of
the Company and shall require the Company to pay expenses, including
bail bonds, if any, in advance of final disposition as set forth
above.
B. If a claim under this Agreement is
not paid by the Company, or on its behalf, within 30 days after a
written claim has been given to the Company, the Indemnitee may at any
time thereafter bring suit against the Company
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to recover the unpaid amount of the claim and if successful, the
Indemnitee shall also be entitled to be paid all costs and expenses of
prosecuting such claim, including reasonable attorneys' fees and
interest. As a condition precedent to his right to be indemnified
hereunder, Indemnitee shall give the Company notice in writing as soon
as reasonably practicable of any claim made against him for which
indemnity will or could be sought under this Agreement. Notice to the
Company shall be directed to Video Broadcasting Corporation, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Chairman of the Board, and
shall be deemed received if sent by registered or certified mail,
return receipt requested.
C. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such
payment to all of the right of recovery of the Indemnitee.
3. INSURANCE. The Company, to the extent it
is available at a reasonable commercial price, shall maintain a
directors' and officers' liability insurance policy providing
coverage in the amount of $2,000,000 pursuant to which Indemnitee
shall receive insurance coverage.
4. LIMITATIONS. The Company shall not be
liable under this Agreement to make any payment in connection with any
claim:
A. for which payment is actually made
to the Indemnitee under a valid and collectable Company insurance
policy, premiums for which are paid by the Company or any of its
Affiliates, except in respect of any deductible and excess beyond the
amount of payment under such insurance;
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B. for which the Indemnitee is
indemnified by the Company otherwise than pursuant to this Agreement,
provided such amount has previously been paid to the Indemnitee;
C. based upon or attributable to the
Indemnitee gaining in fact any personal profit or advantage to which
he was not legally entitled;
D. brought about or contributed to by
the dishonesty of the Indemnitee seeking payment hereunder; and
E. by an Indemnitee who acts as a
plaintiff suing the Company, its Affiliates or other directors or
officers of the Company or its Affiliates; provided, however,
notwithstanding the foregoing, the Indemnitee shall be protected under
this Agreement as to any claim upon which suit may be brought against
him by reason of any alleged dishonesty on his part, unless a judgment
or other final and non-appealable adjudication thereof adverse to the
Indemnitee shall establish that he committed acts of active and
deliberate dishonesty with actual dishonest purpose and intent, which
acts were material and an essential element to the cause of action so
adjudicated.
5. DETERMINATION OF RIGHTS. The determination
of the rights of Indemnitee to indemnification and payment of expenses
under this Agreement or under the provisions of the Amended and
Restated Certificate of Incorporation or the Amended and Restated
Bylaws of the Company and standard of conduct shall be made by (i) the
Board of Directors or a committee of non-officer directors of the
Board of Directors, a majority of which shall be disinterested, (ii)
special, independent counsel selected and appointed by the Board of
Directors or a committee of non-
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officer directors, or (iii) such other body of persons as may be
permitted by the DGCL. Notwithstanding the foregoing, if there has
been a Change of Control (as hereinafter defined) after the date of
this Agreement, then such determination and evaluation shall be made
by a special independent counsel who is selected by the Indemnitee and
approved by the Company, which approval shall not be unreasonably
withheld. The fees of such special independent counsel shall be paid
by the Company. A "Change of Control" shall be deemed to have occurred
if, without the prior approval or support of the Board of Directors,
any of the following shall occur; (i) any person (as such term is used
in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) is or becomes the beneficial owner of 25% or more of the
voting power of the Company, (ii) at the end of any one year period a
majority of the Board of Directors shall consist of persons who were
not directors at the beginning of such period, or (iii) a merger or
consolidation of the Company, other than one resulting in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent 80% of the voting power of the Company or such
surviving entity immediately thereafter.
6. CUMULATIVE RIGHTS AND SEVERABILITY. Nothing
herein shall be deemed to diminish or otherwise restrict the
Indemnitee's right to indemnification under the Company's directors'
and officers' liability insurance, any provision of the Company's
Certificate of Incorporation, its By-Laws, vote of stockholders or
disinterested directors, or under the DGCL or any other applicable
law. On the contrary, the rights granted to Indemnitee hereunder are
intended to protect Indemnitee to the fullest extent permitted by law
and shall be cumulative and in
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addition to any rights that Indemnitee may have from any other source.
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 shall not in any way be affected or impaired thereby,
and (b) to the fullest extent possible the provisions of this
Agreement shall be construed so as to give effect to the intent
manifested by the provisions held invalid, illegal or unenforceable.
7. SURVIVAL. The obligations of the Company
hereunder will survive (a) any actual or purported termination of this
Agreement by the Company or its successors or assigns, whether by
operation of law or otherwise, (b) any change in the Company's
Certificate of Incorporation or By-Laws, and (c) termination of the
Indemnitee's services to the Company or an Affiliate thereof (whether
such services were terminated by the Company, such Affiliate or the
Indemnitee), whether or not a claim is made or an action or proceeding
is threatened or commenced before or after the actual or purported
termination of this Agreement, change in the Company's Certificate of
Incorporation or By-Laws, or termination of the Indemnitee's services.
8. GOVERNING LAW. The parties hereto agree
that this Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Delaware.
9. SUCCESSOR AND ASSIGNS. The Company shall
cause this Agreement to be binding upon all successors and assigns of
the Company (including any transferee of all or substantially all of
its assets and any successor by merger or otherwise by operation of
law). This Agreement shall be binding upon and inure to the
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benefit of the heirs, executors, administrators, personal representatives
and estate of the Indemnitee.
10. BOARD APPROVAL. This Agreement has been
approved by the Board of Directors of the Company.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and signed as of the day and year
first above written.
VIDEO BROADCASTING CORPORATION
By: _______________________________
Title:
_______________________________
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