Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered
into by and between Outdoor Channel Holdings, Inc., a Delaware corporation (the
"Corporation"), and _________________, an individual ("Indemnitee"), and is
effective immediately prior to the consummation of the merger of the Corporation
with Outdoor Channel Holdings, Inc., an Alaska corporation on or about September
13, 2004, wherein the Corporation is the surviving corporation.
RECITALS
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A. Indemnitee performs a valuable service to the Corporation in his or
her capacity as a director and/or an officer of the Corporation and/or its
affiliates.
B. The Certificate of Incorporation (the "Certificate") and the Bylaws
(the "Bylaws") of the Corporation provide for the indemnification of the
officers, directors, employees and other agents of the Corporation as authorized
by the Delaware General Corporation Law, as amended (the "DGCL").
C. The Certificate, the Bylaws and the DGCL, by their non-exclusive
nature, permit contracts between the Corporation and its directors, officers,
employees and other agents with respect to indemnification of such persons.
D. In accordance with the authorization provided by the Certificate,
the Bylaws and the DGCL, the Corporation is entitled to purchase a policy or
policies of Directors' and Officers' Liability Insurance ("Insurance") covering
certain liabilities which may be incurred by its directors and officers in the
performance of their duties to the Corporation.
E. As a result of developments affecting the terms, scope and
availability of Insurance, there exists general uncertainty as to the extent of
protection afforded such persons by such Insurance and by statutory and bylaw
indemnification provisions.
F. In order to induce Indemnitee to continue to serve as a director
and/or an officer of the Corporation and/or its affiliates, the Corporation has
determined and agreed to enter into this Agreement with Indemnitee.
AGREEMENT
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1. INDEMNITY OF INDEMNITEE. The Corporation shall hold harmless,
indemnify and advance expenses to Indemnitee as provided in this Agreement and
to the fullest extent authorized, permitted or required by the provisions of the
Certificate, the Bylaws and the DGCL, as the same may be amended from time to
time (but, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than were permitted by the Certificate,
the Bylaws or the DGCL prior to adoption of such amendment). The rights of
Indemnitee provided under the preceding sentence shall include, but shall not be
limited to, the rights set forth in the other sections of this Agreement.
2. ADDITIONAL INDEMNITY. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the
exclusions set forth in Section 3 hereof, the Corporation hereby further agrees
to hold harmless and indemnify Indemnitee:
(a) Against all liabilities, losses, expenses (including
attorney's fees), judgments, fines and amounts paid in settlement ("Expenses")
actually and reasonably incurred by Indemnitee in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding") by reason of the fact
that Indemnitee is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit
entity, including service with respect to employee benefit plans.
(b) Otherwise to the fullest extent as may be provided to
Indemnitee by the Corporation under the non-exclusivity provisions of the DGCL.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by the Corporation:
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(a) On account of any claim against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee of securities
of the Corporation pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(b) On account of Indemnitee's conduct that was knowingly
fraudulent or deliberately dishonest, or that constituted willful misconduct;
(c) On account of Indemnitee's conduct that constituted a
breach of Indemnitee's duty of loyalty to the Corporation or resulted in any
personal profit or advantage to which Indemnitee was not legally entitled;
(d) On account of Indemnitee's conduct if Indemnitee was not
acting in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation;
(e) In connection with any criminal action or proceeding,
unless Indemnitee had no reasonable cause to believe that Indemnitee's conduct
was unlawful;
(f) For which payment has actually been made to Indemnitee
under a valid and collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any excess beyond
payment under such insurance, clause, bylaw or agreement;
(g) If indemnification is not lawful (and, in this respect,
both the Corporation and Indemnitee have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication) or is prohibited by any applicable state
securities laws with respect to any violation of applicable federal or state
securities laws;
(h) In connection with any proceeding, (or part thereof) by or
in the right of the Corporation to procure a judgment in its favor, in which
Indemnitee shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Delaware Court of Chancery 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 expenses
which the Court of Chancery or such other court shall deem proper; or
(i) In connection with any proceeding, (or part thereof)
initiated by Indemnitee, or any proceeding by Indemnitee against the Corporation
or its directors, officers, employees or other agents, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding,
was authorized by the Board of Directors of the Corporation, (iii) such
indemnification is provided by the Corporation, in its sole discretion, pursuant
to the powers vested in the Corporation under the DGCL, or (iv) the proceeding
is initiated pursuant to Section 8 hereof.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, employee or other agent of the Corporation (or is or was
severing at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitrative,
administrative or investigative, by reason of the fact that Indemnitee was a
director of the Corporation or serving in any other capacity referred to herein.
5. PARTIAL INDEMNIFICATION. Indemnitee shall be entitled under this
Agreement to indemnification by the Corporation for a portion of the expenses
(including attorneys' fees), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Indemnitee becomes legally
obligated to pay in connection with any action, suit or proceeding referred to
in Section 2 hereof even if not entitled hereunder to indemnification for the
total amount thereof, and the Corporation shall indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
6. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days
after receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee will, if a claim in respect thereto is to be made against
the Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it from
any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any such action, suit or proceeding as to which
Indemnitee notifies the Corporation of the commencement thereof
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(a) The Corporation will be entitled to participate therein at
its own expense;
(b) Except as otherwise provided below, the Corporation may,
at its option and jointly with any other indemnifying party similarly notified
and electing to assume such defense, assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After notice from the Corporation to
Indemnitee of its election to assume the defense thereof, the Corporation 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
except for reasonable costs of investigation or otherwise as provided below.
Indemnitee shall have the right to employ separate counsel in such action, suit
or proceeding but the fees and expenses of such counsel incurred after notice
from the Corporation 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 Corporation, (ii) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee in the conduct of the defense of such action, or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such action, in each of which cases the fees and expenses of Indemnitee's
separate counsel shall be at the expense, of the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Corporation or as to which Indemnitee shall have
made the conclusion provided for in (ii) above; and
(c) The Corporation shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent, which shall not be unreasonably
withheld. The Corporation shall be permitted to settle any action except that it
shall not settle any action or claim in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's written consent which
may be given or withheld in Indemnitee's sole discretion.
7. EXPENSES. The Corporation shall pay the expenses incurred by
Indemnitee in defending any proceeding in advance of its final disposition,
provided that, to the extent required by law, the payment of expenses in advance
of the final disposition of the proceeding shall be made only upon receipt of an
undertaking by Indemnitee to repay all amounts advanced if it should be
ultimately determined that Indemnitee is not entitled to be indemnified under
this Agreement or otherwise.
8. ENFORCEMENT. Any right to indemnification or advances granted by
this Agreement to Indemnitee shall be enforceable by or on behalf of Indemnitee
in any court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such claim is
made within sixty (60) days of request therefore. Indemnitee, in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting his or her claim. It shall be a defense to
any action for which a claim for indemnification is made under Section 2 hereof
(other than an action brought to enforce a claim for advancement of expenses
pursuant to Section 7 hereof, provided that the required undertaking has been
tendered to the Corporation) that Indemnitee is not entitled to indemnification
because of the limitations set forth in Section 3 hereof, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or its shareholders) to have made
a determination prior to the commencement of such enforcement action that
indemnification of Indemnitee is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors or its
shareholders) that such indemnification is improper, shall be a defense to the
action or create a presumption that Indemnitee is not entitled to
indemnification under this Agreement or otherwise.
9. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
10. NON EXCLUSIVITY OF RIGHTS. The rights conferred on Indemnitee by
this Agreement shall not be exclusive of any other right which Indemnitee may
have or hereafter acquire under any statute, provision of the Certificate, the
Bylaws, agreement, vote of shareholders or directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding office.
11. SURVIVAL OF RIGHTS.
(a) The rights conferred on Indemnitee by this Agreement shall
continue after Indemnitee has ceased to be a director, officer, employee or
other agent of the Corporation or to serve at the request of the Corporation as
a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
shall inure to the benefit of Indemnitee's heirs, executors and administrators.
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(b) The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
12. SEPARABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify
Indemnitee to the fullest extent provided by the Certificate, the Bylaws, the
DGCL or any other applicable law.
13. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
14. AMENDMENT AND TERMINATION. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
15. 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 but one and the same
Agreement. Only one such counterpart need be produced to evidence the existence
of this Agreement.
16. HEADINGS. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof. 17. Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given (i) upon delivery if delivered by hand
to the party to whom such notice or other communication shall have been
directed, or (ii) if 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:
_______________________________________
_______________________________________
_______________________________________
(b) If to the Corporation, to:
Outdoor Channel Holdings, Inc.
00000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chairman of the Board
or to such other address(es) as may have been furnished to/by Indemnitee to/by
the Corporation.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Indemnification Agreement as of the day and year first above written.
OUTDOOR CHANNEL HOLDINGS, INC., a Delaware corporation
By: __________________________________________________
[____________________], [Title]
______________________________________________________
[____________________], [Title]
