Exhibit
10.1
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement is dated as of
_________ __ , 20__ (this “ Agreement ”)
and is between Access Integrated Technologies, Inc. d/b/a Cinedigm
Digital Cinema Corp., a Delaware corporation (the “
Company ”), and [____________] (“
Indemnitee ”).
WHEREAS, Indemnitee is a director of the Company
and may also serve as a director, consultant, fiduciary or agent
(collectively, the “ Indemnifiable Positions ”)
of other corporations, limited liability companies, partnerships,
joint ventures, trusts, employee benefit plans or other enterprises
controlled by the Company (collectively, the “ Controlled
Entities ”);
WHEREAS, in order to induce Indemnitee to
continue to serve as a director of the Company and/or in other
Indemnifiable Positions of the Controlled Entities, the Company
wishes to provide for the indemnification of, and the advancement
of Expenses (as defined herein) to, Indemnitee to the maximum
extent permitted by law;
WHEREAS, the Fourth Amended and Restated
Certificate of Incorporation of the Company (as amended, restated
or otherwise modified from time to time, the “ Charter
”) provides for the indemnification of the Company’s
directors and officers to the fullest extent permitted by
law;
WHEREAS, the By-Laws of the Company (as amended,
restated or otherwise modified from time to time, the “
Bylaws ”) provide certain indemnification rights to
the Company’s directors and officers; and
WHEREAS, the Company and Indemnitee desire to
enter into this Agreement to set forth their agreement regarding
indemnification and the advancement of Expenses and to clarify the
priority of the indemnification and advancement of Expenses with
respect to certain Jointly Indemnifiable Claims (as defined
herein).
NOW, THEREFORE, in consideration of
Indemnitee’s service or continued service to the Company
and/or the Controlled Entities and the covenants and agreements set
forth below, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as
follows.
Section 1.
Indemnification .
To the fullest extent permitted by the Delaware
General Corporation Law (the “ DGCL
”):
(a) The
Company shall indemnify Indemnitee if Indemnitee was or is made or
is threatened to be made a party to, or is otherwise involved in,
as a witness or otherwise, any threatened, pending or completed
Action, Suit or Proceeding (brought in the right of the Company or
otherwise), whether civil, criminal, administrative or
investigative and whether formal or informal, including
appeals.
(b) The
indemnification provided by this Section 1 shall be from and
against all loss and liability suffered and Expenses (including
attorneys’ fees), Judgments, Fines and Amounts Paid in
Settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such Action, Suit or Proceeding,
including any appeals.
Section 2. Payment of
Expenses . To the fullest extent permitted by
the DGCL, Expenses (including attorneys’ fees) incurred by
Indemnitee in appearing at, participating in or defending any
Action, Suit or Proceeding or in connection with an enforcement
action as contemplated by Section 3(d) , shall be paid by
the Company in advance of the final disposition of such Action,
Suit or Proceeding or such enforcement action within 15 days after
receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances from time to
time. The Indemnitee hereby undertakes to repay any
amounts advanced (without interest) to the extent that it is
ultimately determined that Indemnitee is not entitled under this
Agreement to be indemnified by the Company in respect of such
Action, Suit or Proceeding or such enforcement action as
contemplated by Section 3(d) . No other form of
undertaking shall be required of Indemnitee other than the
execution of this Agreement. This Section 2 shall
be subject to Section 3(b) and shall not apply to any claim
made by Indemnitee for which indemnity is excluded pursuant to
Section 6(a) .
Section 3. Procedure for
Indemnification; Notification and Defense of Claim
.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of any
Action, Suit or Proceeding, Indemnitee shall, if a claim in respect
thereof is to be made or could be made against the Company
hereunder, notify the Company in writing of the commencement
thereof. The failure to promptly notify the Company of
the commencement of the Action, Suit or Proceeding, or of
Indemnitee’s request for indemnification, will not relieve
the Company from any liability that it may have to Indemnitee
hereunder, except to the extent the Company is actually and
materially prejudiced (through the forfeiture of substantive rights
or defenses) in its defense of such Action, Suit or Proceeding as a
result of such failure. To obtain indemnification under
this Agreement, Indemnitee shall submit to the Company a written
request therefor including such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to
enable the Company to determine whether and to what extent
Indemnitee is entitled to indemnification. In addition,
Indemnitee shall reasonably cooperate with the Company and shall
give the Company such additional information as the Company may
reasonably require.
(b) With
respect to any Action, Suit or Proceeding of which the Company is
so notified as provided in this Agreement, the Company shall,
subject to the last two sentences of this paragraph and subject to
the Company’s prior determination pursuant to Section
3(c) to grant Indemnitee’s indemnification request with
respect to such Action, Suit or Proceeding, be entitled to assume
the defense of such Action, Suit or Proceeding, with counsel
reasonably acceptable to Indemnitee (which acceptance shall not be
unreasonably withheld or delayed), upon the delivery to Indemnitee
of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not
be liable to Indemnitee under this Agreement for any
subsequently-incurred fees of separate counsel engaged by or on
behalf of Indemnitee with respect to the same Action, Suit or
Proceeding unless (i) the employment of separate counsel by
Indemnitee has been previously
authorized in
writing by the Company or (ii) the Company does not continue to
retain such counsel to defend such Action, Suit or
Proceeding. Notwithstanding the foregoing, if
Indemnitee, based on the advice of his or her counsel, shall have
reasonably concluded (with written notice being given to the
Company setting forth the basis for such conclusion) that, in the
conduct of any such defense, there is or is reasonably likely to be
a conflict of interest or position between the Company and
Indemnitee with respect to a significant issue, then the Company
will not be entitled, without the written consent of Indemnitee, to
assume such defense. In addition, the Company will not
be entitled, without the written consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the
Company.
(c) The
determination whether to grant Indemnitee’s indemnification
request shall be made promptly and in any event within 30 days
following the Company’s receipt of a request for
indemnification in accordance with Section 3(a)
. If the Company determines that Indemnitee is entitled
to such indemnification, the Company will make payment to
Indemnitee of the indemnifiable amount within such 30 day
period. If the Company’s determination of whether
to grant Indemnitee’s indemnification request shall not have
been made within such 30 day period, the requisite determination of
entitlement to indemnification shall, subject to Section 6 ,
nonetheless be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under the
DGCL.
(d) In
the event that (i) the Company determines in accordance with this
Section 3 that Indemnitee is not entitled to indemnification
under this Agreement, (ii) the Company denies a request for
indemnification, in whole or in part, or fails to respond or make a
determination of entitlement to indemnification within 30 days
following receipt of a request for indemnification as described
above, (iii) payment of indemnification is not made within such 30
day period, (iv) advancement of Expenses is not timely made in
accordance with Section 2 , or (v) the Company or any other
person takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from,
the Indemnitee the benefits provided or intended to be provided to
Indemnitee hereunder, Indemnitee shall be entitled to an
adjudication in any court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of
Expenses. To the extent not already advanced pursuant to
Section 2 , Indemnitee’s Expenses (including
attorneys’ fees) incurred in connection with successfully
establishing Indemnitee’s right to indemnification or
advancement of Expenses, in whole or in part, in any such
proceeding or otherwise shall also be indemnified by the Company;
provided that to the extent Indemnitee is successful in part
and unsuccessful in part in establishing Indemnitee’s right
to indemnification or advancement of Expenses hereunder, Indemnitee
shall be entitled to partial indemnification of Expenses in
accordance with Section 20 .
(e) Indemnitee
shall be presumed to be entitled to indemnification and advancement
of Expenses under this Agreement upon submission of a request
therefor in accordance with Section 2 or Section 3 of
this Agreement, as the case may be. The Company shall
have the burden of proof in overcoming such presumption, and such
presumption shall be used as a basis for a determination of
entitlement to indemnification and advancement of
Expenses unless
the Company overcomes such presumption by clear and convincing
evidence. Neither the failure of the Company to have
made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company that Indemnitee
has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct. For purposes of this
Agreement, the termination of any Action, Suit or Proceeding by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not
meet any particular standard of conduct or have a particular belief
or that a court has determined that indemnification is not
permitted under this Agreement or applicable law.
Section 4. Insurance and
Subrogation .
(a) To
the extent the Company maintains a policy or policies of insurance
providing directors’ and officers’ liability insurance,
Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the
coverage provided to any other director or officer of the
Company. If, at the time the Company receives from
Indemnitee any notice of the commencement of an Action, Suit or
Proceeding, the Company has such insurance in effect that would
reasonably be expected to cover such Action, Suit or Proceeding,
then the Company shall give prompt notice of the commencement of
such Action, Suit or Proceeding to the insurers in accordance with
the procedures set forth in such policy or policies. The
Company shall thereafter take all necessary or reasonably desirable
action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Action, Suit or Proceeding in
accordance with the terms of such policy or policies.
(b) Subject
to Section 9(b) , in the event of any payment by the Company
under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee with
respect to any insurance policy. Indemnitee shall
execute all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary
to enable the Company to effectively bring suit to enforce such
rights in accordance with the terms of such insurance
policy. The Company shall pay or reimburse all Expenses
actually and reasonably incurred by Indemnitee in connection with
such subrogation.
(c) Subject
to Section 9(b) , the Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder (including, but not limited to, Judgments, Fines and
Amounts Paid in Settlement, and ERISA excise taxes or penalties) if
and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy,
contract, agreement or otherwise.
Section 5. Certain
Definitions . For purposes of this Agreement, the
following definitions shall apply:
(a) The
term “ Action, Suit or Proceeding ” shall be
broadly construed and shall include, without limitation, the
investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed
claim, action,
suit, arbitration, investigation, inquiry, alternative dispute
mechanism or proceeding, whether civil (including intentional and
unintentional tort claims), criminal, administrative or
investigative, in each case, by reason of the service of Indemnitee
as a director of the Company and/or in other Indemnifiable
Positions of the Controlled Entities, or by reason of any action
alleged to have been taken or omitted in any such
capacity.
