Exhibit 10.35
INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of __________________, between INTEREP NATIONAL
RADIO SALES, INC., a New York corporation (the "Company"), and
______________________ ("Indemnitee").
W I T N E S S E T H:
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WHEREAS, qualified individuals may be reluctant to serve corporations
as directors and officers unless provided with adequate protection through
insurance and indemnification against the risk of claims and actions against
them arising out of their activities as directors and officers;
WHEREAS, the Company wishes to attract and retain such persons to
serve as its directors and officers and it is acknowledged to be in the best
interests of the Company and its stockholders to do so;
WHEREAS, the By-Laws and Certificate of Incorporation of the Company
require the Company to indemnify its directors and officers to the fullest
extent permitted by applicable law, and Indemnitee has agreed to serve as
____________________________________ of the Company, in part in reliance
thereon;
WHEREAS, in this regard, the Company deems it appropriate to obligate
itself contractually to indemnify its directors and officers 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, and
such obligation is permitted by the By-laws and the Certificate of Incorporation
of the Company; and
WHEREAS, Indemnitee is willing to serve as an officer of the Company
on the condition that he be so indemnified;
NOW, THEREFORE, the parties agree as follows:
1. Indemnification. Indemnitee agrees to serve as a Vice President
and as the Chief Financial Officer of the Company. In consideration of such
agreement, and of such service, the Company shall, to the fullest extent
permitted by applicable law as in effect from time to time, indemnify Indemnitee
if he is involved in any manner (including, without limitation, as a party or a
witness), or is threatened to be made so involved, in any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, any
action, suit or proceeding by or in the right of the Company to procure a
judgment in its favor) (a "Proceeding") by reason of the fact that he is or was
a director, officer, employee, agent or consultant of the Company, or is or was
serving at the request of the Company as a director, officer, employee, agent or
consultant of another corporation or of a partnership, joint venture, trust or
other enterprise, whether
the basis of any such Proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, against all expenses, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, and amounts paid or to be paid in
settlement) (collectively, "Losses") actually and reasonably incurred by him in
connection with such Proceeding.
2. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, he shall be
indemnified against all costs, charges and expense (including but not limited to
attorneys' fees and expenses) actually and reasonably incurred by him or on his
behalf in connection therewith. The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
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adversely affect the right of Indemnitee to indemnification or create any
presumption with respect to any standard of conduct or belief or any other
matter which might form a basis for a determination that Indemnitee is not
entitled to indemnification.
3. Determination of Entitlement of Indemnification. Upon written
request by Indemnitee for indemnification pursuant to Section 1 hereof, the
entitlement of the Indemnitee to indemnification pursuant to this Agreement
shall be determined by the following, who shall be empowered to make such
determination: (a) the Board of Directors of the Company by a majority vote of a
quorum consisting of Disinterested Directors (as defined below), (b) if such a
quorum is not obtainable or, even if obtainable, if the Board of Directors by
the majority vote of Disinterested Directors so directs, by Independent Counsel
(as defined below) in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee or (c) by the Company's shareholders.
Any Independent Counsel shall be selected by the Board of Directors and shall be
reasonably acceptable to Indemnitee. Such determination shall be made not later
than 30 days after receipt by the Company of such information as is reasonably
necessary for such determination.
Any costs or expenses (including but not limited to attorneys' fees
and expenses) incurred by Indemnitee in connection with his request for
indemnification hereunder shall be borne by the Company, and the Company agrees
to indemnify and hold Indemnitee harmless from such costs and expenses
irrespective of the outcome of the determination of Indemnitee's entitlement to
indemnification. The person making such determination shall presume that
Indemnitee is entitled to indemnification pursuant to the terms of this
Agreement. If no determination of entitlement is made within 30 days after the
Company's receipt of the request therefor, Indemnitee shall be absolutely
entitled to such indemnification, absent (i) a misstatement of a material fact
in the request for indemnification or an omission of a material fact necessary
to make the statements in such request not materially misleading, or (ii) a
prohibition of such indemnification under applicable law. If the person making
such determination shall determine that Indemnitee is entitled to
indemnification as to part (but not all)
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of the application for indemnification, such person shall reasonably prorate
such partial indemnification among such claims, issues or matters.
For purposes of this Agreement, the term "Disinterested Director"
shall mean a director of the Company who is not or was not a party to the
action, suit, investigation or proceeding in respect of which indemnification is
being sought by Indemnitee, and the term "Independent Counsel" shall mean a law
firm or a member of a law firm that neither is presently nor in the past five
years has been retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party to the action,
suit, investigation or proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement.
If it is determined that the requested indemnification is not
permitted, in whole or in part, under applicable law, Indemnitee shall have the
right to commence litigation in any court having subject matter jurisdiction
thereof and in which venue is proper seeking an order or judgment by the court
awarding the indemnification denied by the determination or challenging the
determination or any aspect thereof.
4. Advancement of Expenses and Costs. All reasonable expenses and
costs incurred by Indemnitee (including but not limited to attorneys' fees,
retainers and advances of disbursements required by Indemnitee) in defending a
Proceeding by reason of the fact that he is or was a director, officer,
employee, agent or consultant of the Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or consultant of
another corporation or of a partnership, joint venture, trust or other
enterprise, whether the basis of any such Proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, shall be paid by the Company in advance of the
final disposition of such Proceeding; provided, however, that any claim for
advancement of such expenses or costs submitted from time to time by Indemnitee
shall be accompanied by (i) a statement setting forth in reasonable detail the
expenses and costs incurred by him in connection therewith and (ii) an
undertaking by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that Indemnitee is not entitled to be indemnified against
such expenses and costs by the Company as provided by this agreement or
otherwise. Such expenses shall be paid by the Company within 20 days after
receipt of any such statement and undertaking.
5. Other Rights to Indemnification. The indemnification and
advancement of expenses (including but not limited to attorneys' fees and
expenses) and costs provided by this agreement shall not be deemed exclusive of
any other rights to which Indemnitee may now or in the future be entitled under
any provision of any agreement, the
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Company's By-laws, the Company's Certificate of Incorporation, vote of
stockholders or Disinterested Directors, provision of law, or otherwise.
6. Survival of Agreement. This Agreement shall continue in full
force and effect notwithstanding that Indemnitee may cease to occupy any or all
of the positions described in Section 2 of this Agreement. No amendment of any
provision of this Agreement or of applicable law shall remove, abridge or
adversely affect any right of indemnification or any other benefits of
Indemnitee hereunder with respect to any Proceeding involving an act or omission
which occurred prior to such amendment or repeal. This Agreement shall be
binding on the Company and its successors and assigns and shall inure to the
benefit of Indemnitee and his spouse, assigns, heirs, devisees, executors,
administrators or other legal representatives.
7. Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
8. No Effect on Employment. This Agreement does not constitute a
contract of employment or an offer of such a contract which can be accepted.
The right of the Company to remove Indemnitee from any office he holds or to
terminate (whether by dismissal, discharge, retirement or otherwise)
Indemnitee's employment with the Company at any time at will, or as otherwise
provided by an agreement between the Company and Indemnitee, is specifically
reserved.
9. Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
10. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
11. Modification and Waiver. No modification or amendment of this
Agreement shall be binding unless executed in writing by both parties hereto.
No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
12. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any matter
which may be subject to indemnification covered hereunder, either civil,
criminal or investigative.
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13. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(a) If to Indemnitee:
to the address set forth below.
(b) If to the Company:
Interep National Radio Sales, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
14. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: INTEREP NATIONAL RADIO SALES, INC.
By By
____________________________ ________________________________
________________________________
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Address:
_____________________________
_____________________________
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