INDEMNITY AGREEMENT February 15, 2006
EXHIBIT 10.4
INDEMNITY AGREEMENT
February 15, 2006
This agreement is between Triple Crown Media, Inc., a Delaware corporation (the
“Company”) and Xxxxxx X. Xxxxxxxx, a director of the Company (the “Indemnitee”).
A. Indemnitee is a director of the Company.
B. Both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors of public companies in today’s environment.
C. The Certificate of Incorporation of the Company (the “Certificate of
Incorporation”) and the By-laws of the Company (the “By-laws”) require the Company to
indemnify and advance expenses to its directors to the fullest extent permitted by law and the
Indemnitee has been serving and continues to serve as a director of the Company in part in reliance
on such provisions.
D. Section 145(f) of the Delaware General Corporation Law (the “DGCL”) expressly
recognizes that the indemnification provisions of the DGCL are not exclusive of any other rights to
which a person seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, and this Agreement is being entered into
pursuant to such provisions.
E. In recognition of Indemnitee’s need for substantial protection against any potential
personal liability in order to assure Indemnitee’s continued service to the Company in an effective
manner and Indemnitee’s reliance on the provisions of the Certificate of Incorporation and By-laws
and in part to provide Indemnitee with specific contractual assurance that the protection promised
by the Certificate of Incorporation and By-laws will be available to Indemnitee (regardless of,
among other things, any amendment to or revocation of any provision of the Company’s Certificate of
Incorporation or By-laws or any change in the composition of the Company’s Board of Directors or
any acquisition of the Company), 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 the Indemnitee under the Company’s
directors’ liability insurance policies.
The parties hereto agree as follows:
1. Certain Definitions.
(a) “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the stockholders of the
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Company in substantially the same proportions 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 35% or more of the total voting power represented by the
Company’s then outstanding voting securities, or (ii) during any period of 24 consecutive months,
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 stockholders 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 stockholders of the Company approve a merger or consolidation of the Company
with any other corporation or entity, other than a merger or consolidation that 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
entity) at least 80% 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 the
stockholders of the Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company, in one transaction or a series of transactions, of all
or substantially all the Company’s assets.
(b) “Proceeding” shall mean any completed, actual, pending or threatened action, suit, claim,
inquiry or proceeding, whether civil, criminal, administrative or investigative (including an
action by or in the right of the Company) and whether formal or informal.
(c) “Expenses” means all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and related disbursements and other out-of-
pocket costs) actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense or appeal of or being a witness in, participating in or preparing to defend
a Proceeding or establishing or enforcing a right to (i) indemnification or advancement of expenses
under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise or (ii)
directors’ liability insurance coverage; provided, however, that Expenses shall not include any
judgments, fines or penalties or amounts paid in settlement of a Proceeding.
(d) “Indemnifiable Event” is any event or occurrence related to the fact that Indemnitee is or
was a director of the Company, or is or was serving at the request of the Company as a director,
officer, employee, trustee or agent of another corporation, partnership, joint venture, trust,
nonprofit entity or other entity (including service with respect to employee benefit plans), or by
reason of anything done or not done by Indemnitee in any such capacity.
(e) “Indemnification Period” shall be such period as the Indemnitee shall continue to serve as
a director of the Company, or shall continue at the request of the Company to serve as a director,
officer, employee, trustee or agent of another corporation, partnership, joint venture, trust,
nonprofit entity or other entity, and thereafter so long as the Indemnitee shall be subject to any
possible Proceeding arising out of the Indemnitee’s tenure in the foregoing positions.
(f) “Losses” are any judgments, fines, penalties and amounts paid in settlement (including all
interest assessments and other charges paid or payable in connection
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with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of any Proceeding.
(g) “Reviewing Party” shall mean (i) the Board of Directors (provided that a majority of
directors are not parties to the Proceeding), (ii) a person or body selected by the Board of
Directors or (iii) if there has been a Change in Control, the special independent counsel referred
to in Section 5.
2. Indemnification and Advancement of Expenses. Subject to the limitations set forth
in Section 4:
(a) Indemnification. The Company shall indemnify and hold harmless Indemnitee, to the
fullest extent permitted by applicable law, as soon as practicable after written demand is
presented to the Company, in the event Indemnitee was or is made or is threatened to be made a
party to or witness in or is otherwise involved in a Proceeding by reason, in whole or in part, of
an Indemnifiable Event against all Expenses and Losses incurred by Indemnitee in connection with
such Proceeding. In the event of any change, after the date of this Agreement, in any applicable
law, statute or rule regarding the right of a Delaware corporation to indemnify a member of its
Board of Directors, such change, to the extent it would expand Indemnitee’s rights under this
Agreement, shall be included within Indemnitee’s rights and the Company’s obligations under this
Agreement, and, to the extent it would narrow Indemnitee’s rights or the Company’s obligations
under this Agreement, shall be excluded from this Agreement; provided, however, that any change
required by applicable laws, statutes or rules to be applied to this Agreement shall be so applied
regardless of whether the effect of such change is to narrow Indemnitee’s rights or the Company’s
obligations under this Agreement.
(b) Advancement of Expenses. The Company shall to the fullest extent not prohibited
by applicable law pay the Expenses incurred by Indemnitee as soon as practicable after written
demand is presented to the Company in the event Indemnitee was or is made or is threatened to be
made a party to or witness in or is otherwise involved in a Proceeding by reason, in whole or in
part, of an Indemnifiable Event in advance of its final disposition; provided, however, that, to
the extent required by law, such payment of expenses in advance of the final disposition of the
Proceeding shall be made only upon receipt of an undertaking by the Indemnitee to repay all amounts
advanced if it should be ultimately determined that the Indemnitee is not entitled to be
indemnified under this Agreement, the DGCL or otherwise.
(c) Partial Indemnity. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Losses or Expenses, but
not, however, for all of the total amount thereof, the Company shall indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense
of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
(d) Contribution. If the indemnification provided in Section 2(a) for any reason is
held by a court of competent jurisdiction to be unavailable to the Indemnitee, then in respect of
any Indemnifiable Event, the Company shall contribute to the amount of Expenses and
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Losses paid in
settlement actually incurred and paid or payable by the Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the one hand and the
Indemnitee on the other hand from the transaction from which such proceeding arose and (ii) the
relative fault of the Company on the one hand and of the Indemnitee on the other hand in connection
with the events which resulted in such Expenses and Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the Indemnitee on the
other hand shall be determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines or settlement amounts. The Company agrees that it would not be
just and equitable if contribution pursuant to this Section 2(d) were determined by pro rata
allocation or any other method of allocation which does not take account of the foregoing equitable
considerations.
(e) Enforcement. If a claim for indemnification (following the final disposition of
such Proceeding) under Section 2(a) or advancement of Expenses under Section 2(b) is not paid in
full within thirty days after a written claim therefor by the Indemnitee has been presented to the
Company, the Indemnitee may file suit against the Company to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In addition, Indemnitee may file suit against the Company to establish a
right to indemnification or advancement of Expenses arising under this Agreement, the Certificate
of Incorporation, the By-laws, the DGCL or otherwise. In any such action the Company shall have
the burden of proving by clear and convincing evidence that the Indemnitee is not entitled to the
requested indemnification or advancement of Expenses under applicable law.
3. Notification and Defense of Proceeding. Promptly after receipt by Indemnitee of
notice of the commencement of or threat of the commencement of any Proceeding, Indemnitee shall, if
a request for indemnification in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof; but the failure to notify the Company
will not relieve the Company from any liability which it may have to Indemnitee under this
Agreement or otherwise unless and only to the extent that such omission can be shown to have
prejudiced the Company’s ability to defend the Proceeding. Except as otherwise provided below, the
Company shall be entitled to assume the defense of such Proceeding, with counsel approved by
Indemnitee (which approval shall not be unreasonably withheld). After notice from the Company to
Indemnitee of its election to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee
in connection with the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ its counsel in such Proceeding, but the
fees and expenses of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and the Indemnitee in the conduct of the
defense of such Proceeding or (iii) the Company shall not in fact have employed counsel to assume
the defense
of such Proceeding, in each of which cases the fees and expenses of counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Company or as to which the Indemnitee shall have
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made the conclusion
provided for in clause (ii) of this Section 3. The Company shall not settle any Proceeding in any
manner, which would impose any penalty, limitation, admission, loss or Expense on the Indemnitee
without the Indemnitee’s prior written consent. Neither the Company nor the Indemnitee will
unreasonably withhold its consent to any proposed settlement, provided that Indemnitee may, in
Indemnitee’s sole discretion, withhold consent to any proposed settlement that would impose any
penalty, limitation, admission, loss or Expense on the Indemnitee.
4. Limitation on Indemnification. Notwithstanding the terms of Section 2:
(a) the obligations of the Company set forth in Section 2 shall be subject to the condition
that the Reviewing Party shall not have determined (based on a written opinion of outside counsel
in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law;
provided, however, that if Indemnitee has commenced or thereafter commences 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 advancement of Expenses until a final
judicial determination is made with respect thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to
Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has
been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to
be so indemnified under applicable law);
(b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with
respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if
the commencement of such Proceeding (i) was authorized in the specific case by the Board of
Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of
Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or
otherwise;
(c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify
the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in
advance in writing to such settlement, which consent shall not be unreasonably withheld;
(d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify
the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an
accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or
similar provisions of any federal, state or local statutory law;
(e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify
the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful; and
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(f) the Company shall not be obligated pursuant to the terms of this Agreement to make any
payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received
payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this
Agreement.
5. Change in Control of Company. The Company agrees that if there is a Change in
Control of the Company, then with respect to all matters thereafter arising concerning the rights
of Indemnitee to indemnity payments and Expense advances under this Agreement, any other
agreements, the Certificate of Incorporation or the By-laws now or hereafter in effect relating to
Proceedings for Indemnifiable Events, the Company shall seek legal advice only from special
independent counsel selected by Indemnitee and approved by the Company’s Board of Directors (which
approval shall not be unreasonably withheld), and who has not otherwise performed services for the
Company (other than in connection with such matters) or Indemnitee. Without limiting the Company’s
obligation not to unreasonably withhold its consent, in the event that Indemnitee and the Company
are unable to agree on the selection of the special independent counsel, such special independent
counsel shall be selected by lot from among at least five nationally recognized law firms each in
New York City, New York, each having no less than 250 lawyers. Such selection shall be made in the
presence of Indemnitee (and his legal counsel or either of them, as Indemnitee may elect). Such
special independent counsel, among other things, shall determine whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable law and shall render its written
opinion to the Company and Indemnitee to such effect. 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), Proceedings, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant to this Agreement.
6. Subrogation. In the event of payment to Indemnitee 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.
7. No Presumptions. For purposes of this Agreement, the termination of any Proceeding
against Indemnitee 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. In addition,
neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee
has met any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did
not have such belief shall be a defense to Indemnitee’s Proceeding for indemnification or create a
presumption that Indemnitee has not met any particular standard of conduct or did not have any
particular belief shall be a defense to Indemnitee’s Proceeding for
indemnification or create a presumption that Indemnitee has not a met any particular standard
of conduct or did not have a particular belief.
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8. Non-Exclusivity. The rights conferred on the Indemnitee by this Agreement shall
not be exclusive of any other rights which the Indemnitee may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, By-laws, agreement, vote of stockholders or
disinterested directors or otherwise, and to the extent that during the Indemnification Period such
rights are more favorable than the rights currently provided under this Agreement to Indemnitee,
Indemnitee shall be entitled to the full benefits of such more favorable rights to the extent
permitted by law. Other than as set forth in this Section 8, in the case of any inconsistency
between the indemnification provisions of this Agreement and any other agreement relating to the
indemnification of an Indemnitee, the indemnification provisions of this Agreement shall control.
9. Liability Insurance. The Company shall, to the extent that the Board of Directors
in good faith determines it to be economically reasonable, maintain a policy of directors’
liability insurance, on such terms conditions as may be approved by the Board of Directors. To the
extent the Company maintains directors’ liability insurance, the Indemnitee shall be covered by
such policy in such a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company’s directors. Notice of any termination or failure to
renew such policy shall be provided to Indemnitee promptly upon the Company’s becoming aware of
such termination or failure to renew. The Company shall provide copies of all such insurance
policies and any endorsements thereto whenever such documents have been provided to the Company.
10. Amendment/Waiver. 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
of this Agreement (whether or not similar) nor shall such waiver constitute a continuing waiver.
Any waiver to this Agreement shall be in writing.
11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors, assigns, 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, spouses, heirs, and personal and
legal representatives.
12. Survival. This Agreement shall continue in effect during the Indemnification
Period, regardless of whether Indemnitee continues to serve as a director of the Company or of any
other enterprise at the Company’s request.
13. Severability. The provisions of this Agreement shall be severable in the event
that any provision of this Agreement (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent
permitted by law.
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14. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of laws.
| TRIPLE CROWN MEDIA, INC. | ||||
| By: | /s/ XXXXXX X. XXXXXXX, XX. | |||
| Name: Xxxxxx X. Xxxxxxx, Xx. | ||||
| Title: Chairman | ||||
| INDEMNITEE | ||||
| /s/ XXXXXX X. XXXXXXXX | ||||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: Director | ||||
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