Exhibit 10.5
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of ______________, by and among
Citadel Broadcasting Corporation, a Delaware corporation (the "Company"),
Citadel Communications Corporation, a Nevada corporation and a wholly-owned
subsidiary of the Company ("CCC"), Citadel Broadcasting Company ("CBC"), a
Nevada corporation and a wholly-owned subsidiary of CCC, ("CBC", together with
CCC, the "Subsidiaries") 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
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 its directors and officers 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, to continue to serve and to take on
additional service for or on behalf of the Company and/or the Subsidiaries on
the condition that Indemnitee be so indemnified.
E. In consideration of the benefits received and to be received by the
Company and/or the Subsidiaries in connection with actions taken and to be taken
by the Board and by the officers of the Company, the Company and the
Subsidiaries have determined that it is in their best interests for the reasons
set forth above to be a party to this Agreement and to provide indemnification
to the directors and officers of the Company in connection with their service to
and activities on behalf of the Company and the Subsidiaries.
F. The Subsidiaries acknowledge that for purposes of this Agreement the
directors and officers of the Company who enter into this Agreement are serving
in such capacities at the request of the Subsidiaries.
G. The Subsidiaries further acknowledge that such directors and officers
are willing to serve, to continue to serve and to take on additional service for
or on behalf of the Company, thereby benefiting the Subsidiaries, on the
condition that the Subsidiaries enter into, and provide indemnification pursuant
to, this Agreement.
AGREEMENT
In consideration of the premises and the covenants contained herein,
the Company, Subsidiaries and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS.
(a) For purposes of this Agreement:
(i) "Affiliate" shall mean any corporation, partnership,
joint venture, trust or other enterprise in respect of which Indemnitee is or
was or will be serving as a director or officer directly or indirectly at the
request of the Company or the Subsidiaries, and including, but not limited to,
service with respect to an employee benefit plan.
(ii) "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.
(iii) "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
charges, postage, delivery service fees and all other disbursements or expenses
incurred in connection with asserting or defending claims.
(iv) "fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan.
(v) "Independent Counsel" shall mean a law firm or lawyer
that neither is presently nor in the past year has been retained to represent:
(i) the Company, the Subsidiaries 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 in any matter material to such other party.
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, the Subsidiaries 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.
(vi) "Losses" shall mean all expenses, liabilities, losses
and claims (including attorneys' fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended from time to time,
penalties and amounts to be paid in settlement) incurred in connection with any
Proceeding.
(vii) "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative.
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(b) For purposes of this Agreement, a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement; the term "serving at the request of the Company
or the Subsidiaries" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and references to the "Company", "CBC"
or "CCC" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify Indemnitee in its capacity as a
director, officer, or employee or agent, so that Indemnitee shall stand in the
same position under this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
2. SERVICE BY INDEMNITEE. Indemnitee agrees to begin or continue to
serve the Company or any Affiliate as a director and/or officer. Notwithstanding
anything contained herein, this Agreement shall not create a contract of
employment between the Company or the Subsidiaries and Indemnitee, and the
termination of Indemnitee's relationship with the Company or the Subsidiaries or
an Affiliate by either party hereto shall not be restricted by this Agreement.
3. INDEMNIFICATION. The Company and Subsidiaries jointly and
severally agree to indemnify Indemnitee for, 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 a
director or officer of 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, 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 OR THE SUBSIDIARIES. 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 or is involved (including,
without limitation, as a witness) in any Proceeding (other than an action by or
in the right of the Indemnitee (unless approved in advance in writing by the
Company's Board of Directors), the Company or the Subsidiaries, as the case may
be) by reason of (a) the fact that Indemnitee is or was an Officer or Director
of the Company or any other entity which Indemnitee is or was or will be serving
at the request of the Company or the Subsidiaries, as the case may be, or (b)
anything done or not done by Indemnitee in any such capacity.
5. ACTIONS 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 a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any Proceeding brought by or in
the right of the Company or the Subsidiaries to procure a judgment
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in its favor by reason of (a) the fact that Indemnitee is or was an Officer or
Director of the Company or any 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 incurred or suffered by Indemnitee or on
Indemnitee's behalf in connection with the defense or settlement of 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
or the Subsidiaries. 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 or the Subsidiaries
unless and only 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
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Losses and Expenses which the Court of Chancery or such other
court shall deem proper.
6. INDEMNIFICATION FOR LOSSES AND EXPENSES OF PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been wholly successful on the merits or otherwise in
any Proceeding referred to in Sections 3, 4 or 5 hereof on any claim, issue or
matter therein, Indemnitee shall be indemnified against all Losses and 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 and the Subsidiaries jointly and
severally agree to 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.
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 any
Affiliate, as the case may be, a witness in any Proceeding, the Company and the
Subsidiaries jointly and severally agree 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 or the Subsidiaries in advance of the final disposition of such
Proceeding within twenty days after the receipt by the Company or the
Subsidiaries 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
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an adjudication or award in arbitration pursuant to this Agreement. The
financial ability of Indemnitee to repay an advance shall not be a prerequisite
to the making of such advance. 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.
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 and the Subsidiaries. Determination of Indemnitee's entitlement to
indemnification shall be made promptly, but in no event later than 60 days after
receipt by the Company and the Subsidiaries 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, with respect to a person who is a director or
officer at the time of such determination, in the specific case (1) by the Board
of Directors by a majority vote of the Disinterested Directors, even though less
than a quorum, or (2) by a committee of the Disinterested Directors designated
by majority vote of the Disinterested Directors, even though less than a quorum,
or (3) if there are no Disinterested Directors, or if such Disinterested
Directors so direct, by Independent Counsel, or (4) by the stockholders. The
entitlement of the Indemnitee to indemnification shall be determined with
respect to any person who is not a director or officer at the time of such
determination by any means reasonably determined by the Company.
(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 the Board of Directors of the Subsidiaries and approved by Indemnitee. Upon
failure of the Board and the Board of Directors of the Subsidiaries to so select
such Independent Counsel or upon failure of Indemnitee to so approve, such
Independent Counsel shall be selected by the American Arbitration Association of
New York, New York or such other person as such Association shall designate to
make such selection.
(d) If a determination is 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 a determination with respect to entitlement to
indemnification shall not have been made within 60 days after receipt by the
Company and the Subsidiaries of such request, the requisite determination of
entitlement to indemnification shall be deemed to
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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 the Subsidiaries, as the case may be, 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 to 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 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
other 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 a final adjudication either
through an arbitration proceeding or 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 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 Section 10(a) shall be DE NOVO and Indemnitee shall
not be prejudiced by reason of any such prior determination that
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Indemnitee is not entitled to indemnification, and the Company shall bear the
burdens of proof specified in Sections 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 and the Subsidiaries 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) To the extent deemed appropriate by the court, interest
shall be paid by the Company or the Subsidiaries, or both, to Indemnitee at a
reasonable interest rate for amounts which the Company or the Subsidiaries, or
both, indemnifies or is obliged to indemnify Indemnitee for the period
commencing with the date on which Indemnitee requested indemnification (or
reimbursement or advancement of any Expenses) and ending with the date on which
such payment is made to Indemnitee by the Company or the Subsidiaries, or both.
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
jointly and severally borne by the Company and the Subsidiaries 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 the Subsidiaries, and
shall be jointly and severally indemnified by the Company and the Subsidiaries
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 the claims, issues or
matters for which Indemnitee is entitled to indemnification and for claims,
issues or matters for which 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 any law,
certificate of incorporation, by-law, other agreement, vote of stockholders or
resolution of directors or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such office. 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 or
the Subsidiaries 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) ten years after Indemnitee has ceased
to occupy any of the positions or have any of the relationships
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described in Section 3, 4 or 5 hereof; 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 the Subsidiaries and their respective 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. MAINTENANCE OF D&O INSURANCE.
(a) The Company and the Subsidiaries each hereby covenants and
agrees with Indemnitee that, so long as Indemnitee shall continue to serve as an
Officer or Director of the Company 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 any other entity which Indemnitee
was serving at the request of the Company or the Subsidiaries, the Company and
the Subsidiaries shall maintain in full force and effect (i) the directors' and
officers' liability insurance issued by the insurer and having the policy amount
and deductible as currently in effect with respect to directors and officers of
the Company or any of its subsidiaries 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 and the Subsidiaries shall have no obligation to maintain D&O
Insurance if the Company and the Subsidiaries determine 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 hereof shall not be affected
thereby, and the illegal or unenforceable portions hereof shall be and hereby
are redrafted to conform with applicable law, while leaving the remaining
portions hereof 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 hereof.
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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.
19. NO DUPLICATIVE PAYMENT. The Company and the Subsidiaries 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 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,
enclosed 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 answerback is received.
(a) If to Indemnitee, to the address appearing on the signature page
hereof.
(b) If to the Company or the Subsidiaries to:
Citadel Broadcasting Corporation
City Center West, Suite 400
0000 Xxxx Xxxx Xxxx Xxxx.
Xxx Xxxxx, Xxxxxx 00000
Attention: Secretary
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 regard to its conflicts of law rules.
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 hereof. This Agreement may not be amended
or otherwise modified except in writing duly executed by all 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CITADEL BROADCASTING CORPORATION
CITADEL COMMUNICATIONS CORPORATION
CITADEL BROADCASTING COMPANY
By:
-----------------------------
[Name]
[Title]
INDEMNITEE
Name:
-----------------------------
[Name]
[Address]
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