Exhibit 10.16
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (the
“ Agreement ”) made and entered into this
2nd day of April, 2007 by and between Broadcasting Media Partners,
Inc., a Delaware corporation (the “ Company
”), and [Director Name] (the “ Indemnitee
”).
WHEREAS, it is essential that the
Company be able to retain and attract as directors the most capable
persons available;
WHEREAS, the Company’s By-Laws
permit it to enter into indemnification arrangements and
agreements;
WHEREAS, the Company desires to
provide the Indemnitee with specific contractual assurances of the
Indemnitee’s rights to full indemnification against
litigation risks and reasonable expenses (regardless, among other
things, of any amendment to or revocation of the Company’s
By-Laws or any change in the ownership of the Company or the
composition of its Board of Directors) and, to the extent insurance
is available, the coverage of the Indemnitee under the
Company’s directors and officers liability insurance
policies; and
WHEREAS, the Indemnitee is relying
upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director of the
Company.
NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1. Definitions .
(a) “ Corporate
Status ” describes the status of a person who is
serving or has served (i) as a director, officer or employee
of the Company, (ii) in any capacity with respect to any
employee benefit plan of the Company, or (iii) as a director,
partner, member, trustee, officer, employee, or agent of any other
Entity at the request of the Company. For purposes of subsection
(iii) of this Section 1(a), if Indemnitee is serving or
has served as a director, partner, trustee, officer, employee or
agent of a Subsidiary, Indemnitee shall be deemed to be serving at
the request of the Company.
(b) “ Entity
” shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation, association,
organization or other legal entity and any group or division of the
Company or any of its subsidiaries.
(c) “ Expenses
” shall mean all reasonable fees, costs and expenses actually
and reasonably incurred in connection with any Proceeding (as
defined below), including, without limitation, reasonable
attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Section 11 of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses, but
excluding Liabilities.
(d) “ Indemnifiable
Expenses ,” “ Indemnifiable
Liabilities ” and “ Indemnifiable
Amounts ” shall have the meanings ascribed to those
terms in Section 3(a) below.
(e) “
Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(f) “ Proceeding
” shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 11 of this
Agreement to enforce Indemnitee’s rights
hereunder.
(g) “ Subsidiary
” shall mean any Entity of which the Company owns (either
directly or through or together with another Subsidiary of the
Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such Entity,
or (B) 50% or more of the outstanding voting capital stock or
other voting equity interests of such Entity.
2. Services of Indemnitee .
In consideration of the Company’s covenants and commitments
hereunder, Indemnitee agrees to serve as a director of the Company;
provided , that this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company at any particular rate or
for any particular period of time, unless otherwise required by law
or by other agreements or commitments of the parties, if
any.
3. Agreement to
Indemnify
The Company agrees to indemnify
Indemnitee as follows:
(a) Subject to the exceptions
contained in this Agreement, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
actually incurred by Indemnitee in connection with such Proceeding
(referred to herein as “ Indemnifiable Expenses
” and “ Indemnifiable Liabilities
,” respectively, and collectively as “
Indemnifiable Amounts ”).
(b) Subject to the exceptions
contained in this Agreement, including Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company to procure a
judgment in its favor by reason of Indemnitee’s Corporate
Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
4. Exceptions to
Indemnification . Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances other than the following:
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(a) If indemnification is requested
under Section 3(a) and it has been adjudicated finally by a
court of competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to
any criminal action or proceeding, Indemnitee had reasonable cause
to believe that Indemnitee’s conduct was unlawful, Indemnitee
shall not be entitled to payment of Indemnifiable Amounts
hereunder.
(b) If indemnification is requested
under Section 3(b) and
(i) it has been adjudicated finally
by a court of competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses
hereunder;
(ii) it has been adjudicated finally
by a court of competent jurisdiction that Indemnitee is liable to
the Company with respect to any claim, issue or matter involved in
the Proceeding out of which the claim for indemnification has
arisen, including, without limitation, a claim that Indemnitee
received an improper personal benefit or improperly took advantage
of a corporate opportunity, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder with respect to such
claim, issue or matter unless the court in which such Proceeding
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 Indemnifiable Expenses which such court shall deem proper;
or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company 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 16(b) of the Securities
Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any
federal, state or local statutory law.
5. Notification and Defense of
Claim . As a condition precedent to the right of
indemnification, Indemnitee agrees notify the Company in writing as
soon as practicable of any Proceeding for which indemnification
will or could be sought by Indemnitee and provide the Company with
a copy of any summons, citation, subpoena, complaint, indictment,
information or other document relating to such Proceeding with
which Indemnitee is served; provided that the failure of
Indemnitee to give notice as provided herein shall not relieve the
Company of its obligations under this Agreement, except to the
extent that the Company is adversely affected by such failure. With
respect to any Proceeding of which the Company is so notified, the
Company will be entitled to participate therein at its own expense
and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to Indemnitee. After notice from the
Company to Indemnitee of its election so to assume such defense,
the Company shall not be liable to Indemnitee for any legal or
other expenses subsequently incurred by Indemnitee in connection
with such claim, other than as provided below in this
Section 5. Indemnitee shall have the right to employ
Indemnitee’s own counsel in connection with such claim, but
the fees
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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) counsel to Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position on
any significant issue between the Company and Indemnitee in the
conduct of the defense of such action, (iii) counsel to
Indemnitee reasonably concludes that Indemnitee may have separate
defenses or counterclaims to assert with respect to any issue which
may not be consistent with the position of other defendants in such
Proceeding or (iv) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at
the expense of the Company, except as otherwise expressly provided
by this Agreement. The Company shall not be entitled, without the
consent of Indemnitee, to assume the defense of any claim brought
by or in the right of the Company or as to which counsel
