Exhibit 10.41
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of May 6, 1997 by and among
MAGELLAN INTERNATIONAL, 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
A. Highly competent persons are becoming more reluctant to serve 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" or the "Board of
Directors") has determined that the Company should act to assure its directors
and officers of such protection.
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, to continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
AGREEMENT
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:
(a) "Affiliate" shall mean any corporation, partnership, joint
venture, trust or other enterprise in
respect of which the Indemnitee is or was or will be serving as a director,
officer, advisory director, trustee, employee, agent, Board Committee member or
in other similar capacity (herein, "Officer or Director of the Company or of an
Affiliate") at the request of the Company, and including, but not limited to,
any employee benefit plan of the Company or any of the foregoing.
(b) "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.
(c) "Expenses" shall include all attorneys' fees and costs, retainers,
court costs, transcripts, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone and facsimile charges,
postage, delivery service fees and all other disbursements or expenses incurred
in connection with asserting or defending claims.
(d) "Independent Counsel" shall mean a law firm or lawyer that neither
presently nor in the past five years has been retained to represent: (i) the
Company or Indemnitee in any matter material to any 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 any of the
Company or Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement. All Expenses of the Independent Counsel
incurred in connection with acting pursuant to this Agreement shall be borne by
the Company.
(e) "Losses" shall mean all losses, costs, claims, damages,
liabilities, judgments, fines, penalties and amounts paid in settlement in
connection with any Proceeding.
(f) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative; provided,
however, that the term "Proceeding" shall include any action instituted by an
Indemnitee (other than an action to enforce indemnification rights under this
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Agreement) only if such action is authorized by the Board of Directors.
2. Service by Indemnitee. Indemnitee agrees to begin or continue to
serve the Company and/or its Affiliates as a director and/or officer.
Notwithstanding anything contained herein, this Agreement shall not create a
contract of employment between the Company or its Affiliates 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 agrees to indemnify Indemnitee for, and
save, defend and hold Indemnitee harmless from and against, any Losses or
Expenses at any time incurred by or assessed against Indemnitee arising out of
or in connection with the service of Indemnitee as an Officer or Director of the
Company or of an Affiliate 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.
4. Action or Proceeding Other Than an Action by or in the Right of the
Company. Indemnitee shall be entitled to the indemnification rights provided
herein if Indemnitee is a person who was or is made a party or is threatened to
be made a party to any pending, completed or threatened Proceeding, other than
an action by or in the right of the Company, by reason of (a) the fact that
Indemnitee is or was an Officer or Director of the Company or of an Affiliate or
(b) anything done or not done by Indemnitee in any such capacity. Pursuant to
this Section, Indemnitee shall be indemnified against Losses or Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with any Proceeding, if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful.
5. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights
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provided herein if Indemnitee is a person who was or is made a party or is
threatened to be made a party to any pending, completed or threatened Proceeding
brought by or in the right of the Company to procure a judgment in its favor by
reason of (a) the fact that Indemnitee is or was an Officer or Director of the
Company or of an Affiliate or (b) anything done or not done by Indemnitee in any
such capacity. Pursuant to this Section, Indemnitee shall be indemnified against
Losses or Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with any Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company. Notwithstanding the foregoing
provisions of this Section, no such indemnification shall be made in respect of
any claim, issue or matter as to which Delaware law expressly prohibits such
indemnification by reason of an adjudication of liability of Indemnitee to the
Company; provided, however, that in such event such indemnification shall
nevertheless be made by the Company to the extent that the Court of Chancery of
the State of Delaware or the court in which such action or suit was brought
shall determine equitable under the circumstances.
6. Indemnification for Losses and Expenses of Party Who is Wholly or
Partly Successful. Notwithstanding any provision of this Agreement, to the
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 Losses or Expenses actually and reasonably 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 Losses and Expenses incurred by Indemnitee in
connection with each successfully resolved claim, issue or matter. In any review
or Proceeding to determine the extent of indemnification, the Company shall bear
the burden of proving any lack of success and which amounts sought in indemnity
are allocable to claims, issues or matters which were not successfully resolved.
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.
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7. Payment for Expenses of a Witness. Notwithstanding any other
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 of an
Affiliate, a witness in any Proceeding, the Company agrees to pay to Indemnitee
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection therewith.
8. Advancement of Expenses and Costs. All Expenses incurred by or on
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
twenty (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 Expenses
incurred in connection with any Proceeding by Indemnitee seeking an adjudication
or award in arbitration pursuant to this Agreement. Such statement or statements
shall 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.
9. Procedure for Determination of Entitlement to Indemnification. (a)
When seeking indemnification under this Agreement (which shall not include in
any case the right of Indemnitee to receive payments pursuant to Section 7 and
Section 8 hereof, which shall not be subject to this Section 9), 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 thirty (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
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indemnification, advise the Board that Indemnitee has made such request for
indemnification.
(b) The entitlement of Indemnitee to indemnification under this
Agreement in respect of any pending, contemplated or threatened Proceeding shall
be determined in the specific case by (i) the Board of Directors by a majority
vote of those directors who were not party to such Proceeding, whether or not
they constitute a quorum of the Board of Directors, or (ii) if such a quorum is
not obtainable, or if a quorum of disinterested directors so directs, by
Independent Counsel in a written opinion, or (iii) by the stockholders.
(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 and the Board of Directors so
to select such Independent Counsel or upon failure of Indemnitee so to approve,
such Independent Counsel shall be selected by the President of the Association
of the Bar of the City of New York.
(d) If the determination made pursuant to Section 9(b) is 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 sixty (60) 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
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create a presumption that Indemnitee did not act in good faith and in a manner
that 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 in taking such action
Indemnitee relied on the records or books of account of the Company or an
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 or on
information or records given or reports made to 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 Company shall
have the burden of establishing the absence of good faith. The provisions of
this Section 9(g) shall 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.
10. Remedies in Cases of Determination not to Indemnify or to Advance
Expenses. (a) In the event that (i) a determination is made that Indemnitee is
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 an adjudication in an appropriate court of
the State of Delaware or any other court of competent jurisdiction as to
Indemnitee's entitlement to such indemnification or advance.
(b) In the event 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 judicial proceeding or arbitration
referred to in paragraph (a) of this Section 10 shall be de
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novo and Indemnitee shall not be prejudiced by reason of any such prior
determination that Indemnitee is not entitled to indemnification, and the
Company shall bear the burdens of proof specified in paragraphs 6 and 9 hereof
in such proceeding.
(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 for the
period commencing with the date on which Indemnitee requested indemnification
(or reimbursement or advance of an Expense) and ending with the date on which
such payment is made to Indemnitee by the Company.
11. Expenses Incurred by Indemnitee to Enforce this Agreement. All
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 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
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reasonably prorated among the claims, issues or matters for which the Indemnitee
is entitled to indemnification and for claims, issues or matters for which the
Indemnitee is not so entitled.
12. Non-Exclusivity. The rights of indemnification and to receive
advances as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under or by reason
of applicable law, any certificate of incorporation or by-laws, any agreement,
any vote of stockholders or any resolution of directors or otherwise. To the
extent Indemnitee would be prejudiced thereby, 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 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.
13. Duration of Agreement. This Agreement shall apply to any claim
asserted and any Losses and 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: (a) 10 years after Indemnitee has ceased
to occupy any of the positions or have any of the relationships described in
Sections 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.
14. D&O Insurance. (a) From and after the time that the Corporation
shall have first issued shares of capital stock to the public pursuant to a
registration statement under the Securities Act of 1933, and so long as
Indemnitee shall continue to serve as an Officer or Director of the Company or
Affiliate and thereafter so long as Indemnitee shall be subject to any possible
claim or threatened, pending or completed Proceeding, whether civil, criminal or
investigative, by reason of the fact that Indemnitee was an Officer or Director
of the Company or Affiliate, the Company shall use its best efforts to maintain
in full force and effect (i) the directors' and
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officers' liability insurance issued by the insurer and having the policy amount
and deductible as deemed appropriate by the Board of Directors and (ii) any
replacement or substitute policies issued by one or more reputable insurers
providing in all respects coverage at least comparable to and in the same amount
as that currently provided under such existing policy (collectively, "D&O
Insurance").
(b) In all policies of D&O Insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits,
subject to the same limitations, as are accorded to the Company's directors or
officers most favorably insured by such policy.
(c) Notwithstanding anything to the contrary set forth in (a) above,
the Company shall have no obligation to maintain D&O Insurance if the Company
determines in good faith that such insurance is not reasonably available, the
premium cost for such insurance is disproportionate to the amount of coverage
provided or the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit.
15. Severability. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the validity of the
remaining portions or provisions of this Agreement shall not be affected
thereby, and the illegal or unenforceable portions of the Agreement shall be and
hereby are redrafted to conform with applicable law, while leaving the remaining
portions of this Agreement intact.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
17. Headings. Section headings are for convenience only and do not
control or affect meaning or interpretation of any terms or provisions of this
Agreement.
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.
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19. No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
(net of Expenses incurred in collecting such payment) under this Agreement, any
insurance policy, contract, agreement or otherwise.
20. Notices. All notices, requests, demands and other communications
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 a registered or certified postpaid envelope in any general or branch office
of the United States Postal Service, 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 answer back
is received.
(a) If to Indemnitee, to the address appearing on the signature page
hereof.
(b) If to the Company to:
Magellan International, Inc.
c/o PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
21. GOVERNING LAW. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
22. Entire Agreement. Subject to the provisions of Section 12 hereof,
this Agreement constitutes the entire understanding 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. This Agreement may not
be amended or otherwise modified except in writing duly executed by all
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of the parties. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MAGELLAN INTERNATIONAL, INC.
By __________________________
Name:
Title:
INDEMNITEE:
_____________________________
Name:
Title:
Address:
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