INDEMNIFICATION
AGREEMENT
This Agreement,
made and entered into this ___day of ___, 2009 (“
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 fullest extent permitted by 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; 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, to the fullest
extent permitted by law, advance Expenses to Indemnitee,
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 by law (including, if
applicable, Section 145 of the Delaware General Corporation
Law).
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 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
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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, to the fullest extent permitted by law, advance 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
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 Non-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 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
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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 or, if 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, by Independent Counsel (as hereinafter
defined) selected by Indemnitee. 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.
Certain Agreements Related to Indemnification .
(a) To
obtain indemnification under this Agreement, Indemnitee shall
submit to CCO a written request for indemnification at such time as
determined by Indemnitee in Indemnitee’s sole
discretion.
(b) Upon
written request by Indemnitee for indemnification pursuant to
Section 10(a) of this Agreement, a determination, if
required by applicable law, with respect to Indemnitee’s
entitlement to indemnification shall be made as follows:
(i) upon Indemnitee’s request, by Independent Counsel
selected by Indemnitee in a written opinion to the board of
directors of CCO, a copy of which shall be delivered to Indemnitee;
or (ii) if no such request is made by Indemnitee for a
determination by Independent Counsel, (A) by a majority vote
of a quorum of the Disinterested Directors (as hereinafter
defined); or (B) if a quorum of Disinterested Directors is not
obtainable or, even if obtainable, if a majority of such quorum of
Disinterested Directors so directs, by Independent Counsel selected
(x) if a quorum of Disinterested Directors is obtainable, by a
majority vote of a quorum of Disinterested Directors or (y) if
a quorum of Disinterested Directors is not obtainable, by the board
of directors of CCO, in each case in a written opinion to the board
of directors of CCO, a copy of which shall be delivered to
Indemnitee; or (C) if a majority of a quorum of Disinterested
Directors so directs, by the stockholders of CCO. If it is so
determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within ten (10) calendar days after
such determination.
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(c) If
the person, persons or entity empowered or selected to determine
Indemnitee’s entitlement to indemnification has not made a
determination within sixty (60) calendar days after receipt by
CCO of the request by Indemnitee for indemnification, the requisite
determination of entitlement to indemnification will be deemed to
have been made, and Indemnitee, to the fullest extent not
prohibited by law, shall be entitled to such indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact by Indemnitee necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification; or (ii) a
final judicial determination that any or all such indemnification
is expressly prohibited under applicable law; provided ,
however , that such sixty (60) calendar day period may be
extended for a reasonable time, not to exceed an additional thirty
(30) calendar days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in
good faith requires such additional time to obtain or evaluate
documentation and/or information relating to such determination;
and provided, further, that the sixty (60) calendar day
limitation set forth in this clause (c) shall not apply, and
such period shall be extended as necessary, if within thirty
(30) calendar days after receipt by CCO of the request for
indemnification under Section 10(a) of this Agreement,
a quorum of Disinterested Directors has directed that such
determination be made by the stockholders of CCO, pursuant to
Section 10(b) of this Agreement, at an annual meeting
of stockholders to be held within ninety (90) calendar days
after such direction and such determination is made thereat, or a
special meeting of stockholders is called within thirty
(30) calendar days after such receipt for the purpose of
making such determination, such meeting is held for such purpose
within sixty (60) calendar days after having been so called
and such determination is made thereat.
(d) CCO
promptly will advise Indemnitee in writing with respect to any
determination that Indemnitee is or is not entitled to
indemnification, including a description of any reason or a basis
for which indemnification has been denied. 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 that is not privileged or otherwise protected from
disclosure and that is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or Expenses
(including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by CCO (irrespective of
the determination as to Indemnitee’s entitlement to
indemnification), and CCO hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(e) If
(i) a determination is made pursuant to
Section 10(b) of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement or (ii) there
has been any failure by CCO to make timely payment or advancement
of any amounts due hereunder, Indemnitee may petition the Court of
Chancery of the State of Delaware to adjudicate Indemnitee’s
entitlement to such indemnification or advancements due hereunder.
CCO will pay any and all Expenses reasonably incurred by or on
behalf of Indemnitee in connection with the investigation and
resolution of such issues, and Indemnitee shall be entitled to have
such Expenses advanced by CCO in accordance with
Section 8 of this Agreement. If a determination is made
pursuant to Section 10(b) of this Agreement that
Indemnitee is entitled to indemnification under this Agreement,
then CCO shall be bound by such determination, including in any
Proceeding.
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(f) 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
consent may be provided or withheld in Indemnitee’s sole
discretion, settle any claim or Proceeding, release any
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