INDEMNIFICATION
AGREEMENT
This Agreement,
made and entered into this ___ day of ___, ___(“
Agreement ”), by and between Clear Channel Outdoor
Holdings, Inc., a Delaware corporation (“ CCO
”), and ___(“ Indemnitee ”):
WHEREAS, in light
of the litigation costs and risks to directors resulting from their
service to companies, and the desire of CCO to attract and retain
qualified individuals to serve as directors, it is reasonable,
prudent and necessary for CCO to indemnify and advance expenses on
behalf of its directors to the extent permitted by applicable law
so that they will serve or continue to serve CCO free from undue
concern regarding such risks;
WHEREAS, CCO has
requested that Indemnitee serve or continue to serve as a director
of CCO and may have requested or may in the future request that
Indemnitee serve one or more Outdoor Entities (as hereinafter
defined) as a director or in other capacities;
WHEREAS,
Indemnitee may have certain rights to indemnification, advancement
of expenses and/or insurance provided by a Sponsor Entity or a
Clear Channel Entity (as such terms are defined in
Section 15 of this Agreement), which Indemnitee, CCO
and such other entities intend to be secondary to the primary
obligation of CCO to indemnify Indemnitee as provided herein, with
CCO’s acknowledgement of and agreement to the foregoing being
a material condition to Indemnitee’s willingness to serve as
a director of CCO (or of any other Outdoor Entity); and
WHEREAS,
Indemnitee is willing to serve as a director of CCO on the
condition that he be so indemnified;
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
CCO and Indemnitee do hereby covenant and agree as
follows:
1.
Services by Indemnitee . Indemnitee agrees to serve as a
director of CCO. Indemnitee may at any time and for any reason
resign from such position.
2.
Indemnification — General . On the terms and subject
to the conditions of this Agreement, CCO shall, to the fullest
extent permitted by law, indemnify Indemnitee with respect to, and
hold Indemnitee harmless from and against, liabilities, losses,
costs, Expenses (as hereinafter defined) and other matters that may
result from or arise in connection with Indemnitee’s
Corporate Status (as hereinafter defined) and shall advance
Expenses to Indemnitee, in each case to the fullest extent
permitted by applicable law in effect on the date hereof, and to
such greater extent as applicable law may hereafter from time to
time permit, notwithstanding that such indemnification or advances
are not specifically authorized by other provisions of this
Agreement. The indemnification obligations of CCO under this
Agreement (a) shall continue after such time as Indemnitee
ceases to serve as a director of CCO or in any other Corporate
Status and (b) include, without limitation, claims for
monetary damages against Indemnitee in respect of any alleged
breach of fiduciary duty, to the fullest extent permitted under
applicable law (including, if applicable, Section 145 of the
Delaware General Corporation Law) as in existence on the date
hereof and as amended from time to time.
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3.
Proceedings Other Than Proceedings by or in the Right of CCO
. If by reason of Indemnitee’s Corporate Status Indemnitee
was, is, or is threatened to be made, a party to or a participant
in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of CCO to procure a judgment in its favor, CCO
shall, to the fullest extent permitted by law, indemnify Indemnitee
with respect to, and hold Indemnitee harmless from and against, all
Expenses, liabilities, judgments, penalties, fines and amounts paid
in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such
liabilities, judgments, penalties, fines and amounts paid in
settlement) reasonably incurred by Indemnitee or on behalf of
Indemnitee in connection with such Proceeding or any claim, issue
or matter therein, if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in, or not opposed to,
the best interests of CCO and, with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful.
4.
Proceedings by or in the Right of CCO . If by reason of
Indemnitee’s Corporate Status Indemnitee was, is, or is
threatened to be made, a party to or a participant in any
Proceeding by or in the right of CCO to procure a judgment in its
favor, CCO shall, to the fullest extent permitted by law, indemnify
Indemnitee with respect to, and hold Indemnitee harmless from and
against, all Expenses reasonably incurred by Indemnitee or on
behalf of Indemnitee in connection with such 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 CCO; provided , however , that indemnification
against such Expenses shall be made in respect of any claim, issue
or matter in such Proceeding as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction to be liable to CCO
only if (and only to the extent that) the Court of Chancery of the
State of Delaware or other court in which such Proceeding shall
have been brought or is pending shall determine that despite such
adjudication of liability and in light of all circumstances such
indemnification may be made.
5.
Mandatory Indemnification in Case of Successful Defense .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to (or a participant in) and is
successful, on the merits or otherwise, in defense of any
Proceeding (including, without limitation, any Proceeding brought
by or in the right of CCO), CCO shall, to the fullest extent
permitted by law, indemnify Indemnitee with respect to, and hold
Indemnitee harmless from and against, all Expenses reasonably
incurred by Indemnitee or on behalf of Indemnitee in connection
therewith. If Indemnitee is not wholly successful in defense of
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, CCO shall, to the fullest extent permitted by law,
indemnify Indemnitee against all Expenses reasonably incurred by
Indemnitee or on behalf of Indemnitee in connection with each
successfully resolved claim, issue or matter. For purposes of this
Section 5 and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, on substantive or procedural grounds, shall
be deemed to be a successful result as to such claim, issue or
matter.
6.
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement or otherwise to indemnification by
CCO for some or a portion of the Expenses, liabilities, judgments,
penalties, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such liabilities, judgments,
penalties, fines and amounts paid in settlement) incurred by
Indemnitee or on behalf
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of Indemnitee
in connection with a Proceeding or any claim, issue or matter
therein, but not, however, for the total amount thereof, CCO shall,
to the fullest extent permitted by law, indemnify Indemnitee for
that portion thereof to which Indemnitee is entitled.
7.
Indemnification for Additional Expenses Incurred to Secure
Recovery or as Witness .
(a) CCO
will, to the fullest extent permitted by law, indemnify Indemnitee
with respect to, and hold Indemnitee harmless from and against, any
and all Expenses and, if requested by Indemnitee, will (within
twenty (20) calendar days of such request) advance such
Expenses to Indemnitee, which are reasonably incurred by Indemnitee
in connection with any action concerning (i) indemnification
or advance payment of Expenses by CCO under this Agreement, any
other agreement, the Certificate of Incorporation or By-laws of CCO
as now or hereafter in effect; or (ii) recovery under any
director and officer liability insurance policies maintained by any
Outdoor Entity or Clear Channel Entity (as hereinafter defined) to
the fullest extent permitted by law.
(b) To
the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, CCO will, to the fullest extent permitted by law,
indemnify Indemnitee with respect to, and hold Indemnitee harmless
from and against, and CCO will advance, all Expenses reasonably
incurred by Indemnitee or on behalf of Indemnitee in connection
therewith.
8.
Advancement of Expenses .
(a) CCO
shall advance, to the fullest extent permitted by law, all Expenses
reasonably incurred by or on behalf of Indemnitee in connection
with the investigation, defense, settlement or appeal of any
Proceeding within twenty (20) calendar days after the receipt
by CCO of a statement or statements from Indemnitee requesting such
advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such advances shall, in all
events, be (i) unsecured and interest free; and (ii) made
without regard to Indemnitee’s ability to repay the
advances.
(b) To
obtain advancement of Expenses under this Agreement, Indemnitee
shall submit to CCO a written request for advancement of Expenses
and, to the extent required by applicable law, an unsecured written
undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses. Upon
submission of such request for advancement of Expenses and (if
applicable) unsecured written undertaking, Indemnitee shall be
entitled to advancement of Expenses as provided in this
Section 8 , and such advancement of Expenses shall
continue until such time (if any) as there is a final judicial
determination that Indemnitee is not entitled to
indemnification.
9.
Establishment of a Trust . CCO shall, upon written request
of a majority of Affiliate Directors (as hereinafter defined),
create a trust for the benefit of Indemnitee (the “
Trust ”) following initiation of a Proceeding for
which Indemnitee reasonably believes that he or she may be entitled
to indemnification by CCO under this Agreement. From time to time
upon
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written request
of Indemnitee, CCO shall fund such Trust within ninety
(90) days of such request in an amount sufficient to satisfy
any and all (a) Expenses reasonably anticipated at the time of
each such request to be incurred by or on behalf of Indemnitee in
connection with such Proceeding and (b) judgments, fines,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such judgments, fines, penalties and amounts paid in
settlement) in connection with such Proceeding actually paid or
claimed, reasonably anticipated or proposed to be paid, but, with
respect to amounts described in this clause (b), only to the extent
such amounts would not reasonably be expected to be fully paid by
CCO’s director liability insurance coverage (including
amounts below the deductible of any such policy). The trustee of
the Trust (the “ Trustee ”) shall be a bank or
trust company or other individual or entity chosen by Indemnitee
and reasonably acceptable to CCO. The amount or amounts to be
deposited in the Trust pursuant to the foregoing funding obligation
shall be determined by mutual agreement of Indemnitee and CCO. If
the Affiliate Director shall become a Non-Affiliate Director after
the effective date of this Agreement, and CCO and Indemnitee are
unable to reach an agreement on the amount or amounts to be
deposited in the Trust pursuant to the foregoing funding obligation
within a reasonable period of time not to exceed ten
(10) business days, then such amount or amounts shall be as
mutually agreed by Indemnitee and CC Media, or in the event that
Indemnitee and CC Media are also unable to reach a mutual agreement
on such amount or amounts within a reasonable period of time not to
exceed ten (10) business days, then as determined by
Independent Counsel (as hereinafter defined). The terms of the
Trust shall provide that (a) the Trust shall not be revoked or
the principal thereof invaded, without the written consent of
Indemnitee; (b) the Trustee shall advance, within twenty
(20) calendar days of a request by Indemnitee, any and all
Expenses reasonably incurred by or on behalf of Indemnitee in
connection with the investigation, defense, settlement or appeal of
any Proceeding, any required determination concerning the
reasonableness of the Expenses to be made by the Independent
Counsel (and Indemnitee hereby agrees to reimburse the Trust under
the circumstances in which Indemnitee would be required to
reimburse CCO for Expenses advanced under Section 8(b)
of this Agreement); (c) the Trust shall continue to be funded
by CCO in accordance with the funding obligation set forth above;
(d) the Trustee shall promptly pay to Indemnitee all amounts
for which Indemnitee shall be entitled to indemnification pursuant
to this Agreement; and (e) all unexpended funds in the Trust
shall revert to CCO upon a final determination by Independent
Counsel or the mutual agreement by CCO and Indemnitee that
Indemnitee has been fully indemnified and held harmless under the
terms of this Agreement. The Trust shall be governed by Delaware
law (without regard to its conflicts of laws rules) and the Trustee
shall consent to the exclusive jurisdiction of the Delaware Court
in accordance with Section 21 of this Agreement.
Nothing in this Section 9 shall relieve CCO of any of
its obligations under this Agreement.
10.
Indemnification Procedures .
(a)
Notice of Proceeding . Indemnitee agrees to notify CCO
promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to
any Proceeding or matter which may be subject to indemnification or
advancement of Expenses hereunder. Any failure by Indemnitee to so
notify CCO will relieve the CCO of its advancement or
indemnification obligations under this Agreement only to the extent
CCO can establish that such omission to notify resulted in actual
prejudice to it, and the
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omission to
notify CCO will, in any event, not relieve CCO from any liability
which it may have to indemnify Indemnitee otherwise than under this
Agreement.
(b)
Defense; Settlement . Indemnitee shall have the sole right
and obligation to control the defense or conduct of any claim or
Proceeding with respect to Indemnitee. CCO will not, without the
prior written consent of Indemnitee, which may be provided or
withheld in Indemnitee’s sole discretion, settle any claim or
Proceeding, release any claim, or make any admission of fact, law
or liability or damages, or assign, pledge or permit any
subrogation with respect to the foregoing, or permit any Outdoor
Entity to do any of the foregoing, to the extent such settlement,
release, admission, assignment, pledge or subrogation in any way
adversely affects Indemnitee or directly or indirectly imposes any
expense, liability, damages, debt, obligation, judgment, exposure
or burden on Indemnitee and further, in the case of any release or
settlement, includes an unconditional release of Indemnitee from
all liability on any matters that are the subject of such
Proceeding and an acknowledgment that Indemnitee denies all
wrongdoing in connection with such matters.
(c)
Request for Advancement; Request for Indemnification
.
(i) To
obtain advancement of Expenses under this Agreement, Indemnitee
shall submit to CCO a written request therefor, together with such
invoices or other supporting information as may be reasonably
requested by CCO and reasonably available to Indemnitee, and, only
to the extent required by applicable law which cannot be waived, an
unsecured written undertaking to repay amounts advanced. CCO shall
make advance payment of Expenses to Indemnitee no later than twenty
(20) days after receipt of the written request for advancement
(and each subsequent request for advancement) by
Indemnitee.
(ii) To
obtain indemnification under this Agreement, at any time after
submission of a request for advancement pursuant to
Section 10(c)(i) of this Agreement, Indemnitee may
submit a written request for indemnification hereunder. The time at
which Indemnitee submits a written request for indemnification
shall be determined by the Indemnitee in the Indemnitee’s
sole discretion. Once Indemnitee submits such a written request for
indemnification (and only at such time that Indemnitee submits such
a written request for indemnification), a Determination shall
thereafter be made as provided in and only to the extent required
by Section 10(d) of this Agreement. In no event shall a
Determination be made, or required to be made, as a condition to or
otherwise in connection with any advancement of Expenses pursuant
to Section 8 and Section 10(c)(i) of this
Agreement.
(d)
Determination . CCO agrees that Indemnitee shall be
indemnified to the fullest extent permitted by law and that no
Determination shall be required in connection with such
indemnification unless specifically required by applicable law
which cannot be waived. In no event shall a Determination be
required in connection with indemnification for Expenses incurred
as a witness pursuant to Section 7 of this Agreement or
incurred in connection with any Proceeding or portion thereof with
respect to which Indemnitee has been successful on the merits or
otherwise. Any decision that a Determination is required by law in
connection with any other indemnification of Indemnitee, and any
such Determination, shall be made within thirty (30) days
after receipt of Indemnitee’s written request for
indemnification pursuant to
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Section 10(c)(ii) and such Determination shall be made either
(i) by the Disinterested Directors, even though less than a
quorum, so long as Indemnitee does not request that such
Determination be made by Independent Counsel, or (ii) if so
requested by Indemnitee, in Indemnitee’s sole discretion, by
Independent Counsel in a written opinion to the CCO and Indemnitee.
If a Determination is made that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within twenty
(20) days after such Determination. Indemnitee shall
reasonably cooperate with the person, persons or entity making such
Determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such Determination. Any Expenses incurred
by Indemnitee in so cooperating with the Disinterested Directors or
Independent Counsel, as the case may be, making such Determination
shall be advanced and borne by CCO (irrespective of the
Determination as to Indemnitee’s entitlement to
indemnification) and CCO shall indemnify and hold Indemnitee
harmless therefrom.
(e)
Independent Counsel . In the event Indemnitee requests that
the Determination be made by Independent Counsel pursuant to
Section 10(d) of this Agreement, the Independent
Counsel shall be selected as provided in this
Section 10(e) . The Independent Counsel shall be
selected by Indemnitee (unless Indemnitee shall request that such
selection by made by the Board of Directors, in which event the
Board of Directors shall make such selection on behalf of CCO,
subject to the remaining provisions of this
Section 10(e) ), and Indemnitee or CCO, as the case may
be, shall give written notice to the other, advising CCO or
Indemnitee of the identity of the Independent Counsel so selected.
CCO or Indemnitee, as the case may be, may, within ten (10) days
after such written notice of selection shall have been received,
deliver to Indemnitee or the Company, as the case may be, a written
objection to such selection; provided , however ,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in this Agreement, and
the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person
so selected shall act as Independent Counsel. If a written
objection is so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court of competent jurisdiction has
determined that such objection is without merit. If, within twenty
(20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 10(c)(ii) of this
Agreement, no Independent Counsel shall have been selected and not
objected to, either CCO or Indemnitee may petition a court of
competent jurisdiction for resolution of any objection which shall
have been made by CCO or Indemnitee to the other’s selection
of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person
as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act
as Independent Counsel under Section 10(d) of this
Agreement. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 10(f) of this
Agreement, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing). Any
expenses incurred by Independent Counsel shall be borne by CCO
(irrespective of the Determination of Indemnitee’s
entitlement to indemnification) and not by Indemnitee.
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(f)
Consequences of Determination; Remedies of Indemnitee . CCO
shall be bound by and shall have no right to challenge a Favorable
Determination. If an Adverse Determination is made, or if for any
other reason CCO does not make timely indemnification payments or
advances of Expenses, Indemnitee shall have the right to commence a
Proceeding before a court of competent jurisdiction to challenge
such Adverse Determination and/or to require CCO to make such
payments or advances (and the Company shall have the right to
defend its position in such Proceeding and to appeal any adverse
judgment in such Proceeding). Indemnitee shall be entitled to be
indemnified for all Expenses incurred in connection with such a
Proceeding and to have such Expenses advanced by the Company in
accordance with Section 8
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