|
Exhibit
10.5
INDEMNITY
AGREEMENT
THIS AGREEMENT is made as of
October 31, 2007
BETWEEN
Loral Space &
Communications Inc., a corporation incorporated under the laws of
the State of Delaware (the “Indemnitor”
),
- and -
Telesat Canada, Telesat
Holdings Inc. and Telesat Interco Inc., corporations incorporated
or amalgamated under the laws of Canada (individually, a “
Company ” and collectively, the
“Companies” ),
- and -
Henry Gerard (Hank) Intven,
of the City of Toronto in the Province of Ontario (the
“Indemnitee” ).
WHEREAS the Indemnitor has a
material interest in the Companies;
AND WHEREAS the Indemnitor
and the Companies have requested the Indemnitee to serve as a
director or officer of the Companies and he has consented to so act
provided this Agreement is entered into;
NOW THEREFORE, in
consideration of the sum of $1.00 now paid by the Indemnitee to
each of the Indemnitor and the Companies (the receipt and
sufficiency of which are acknowledged by the Indemnitor and the
Companies) and the premises and the covenants and agreements
contained herein, the parties agree as follows:
ARTICLE 1 - INDEMNITY
AND LIMITATION OF LIABILITY
(1) Subject to
Section 1.01(2), the Companies will severally, in respect of
liability related to acting as a director or officer of each such
Company, and jointly and severally, with respect to a Company and
its direct or indirect subsidiaries in respect of liability related
to acting as a director or officer of a direct or indirect
subsidiary (individually, a “ Subsidiary ” and
collectively, the “ Subsidiaries ”) of such
Company, indemnify and save harmless the Indemnitee from and
against all losses, costs, charges, damages, expenses, awards,
settlements, liabilities, fines, penalties, demands and causes of
action of whatever kind including all legal fees and costs on a
solicitor and client basis and other reasonable professional fees
(collectively, the “Claims” ) to the full extent
permitted by law regardless of when they arose and howsoever
arising, that the Indemnitee sustains, incurs or may be subject to
and which the Indemnitee would not
have sustained, incurred or be subjected
to if the Indemnitee had not accepted the Companies’ request
to act as a director or officer of the Companies . In the
event that, for any reason whatsoever, the Companies do not fully
and completely indemnify the Indemnitee in accordance with the
terms of this Agreement, including without limitation the
provisions of this Section 1.01, 1.05 or 1.06, within 120 days
of demand by the Indemnitee on the Companies, the Indemnitor shall
itself indemnify the Indemnitee to the extent the Indemnitee has
not been fully indemnified by the Companies. In such event, the
Indemnitor shall become subrogated to the rights of the Indemnitee
with respect to the right to be compensated with respect to the
obligations of the Companies pursuant to this Indemnity.
(2) The indemnity provided in
Section 1.01(1) will not apply unless in connection with the
matter in respect of a Company or in respect of a Subsidiary which
gave rise to Claims for which indemnification is sought, the
Indemnitee
| |
(i) |
acted honestly and in good faith with a view to the best
interests of the Company or such Subsidiary; and |
| |
(ii) |
in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the Indemnitee
had reasonable grounds for believing that his conduct was
lawful. |
(3) To the extent that a
change of relevant law, whether by statute or judicial decision,
permits greater indemnification than that afforded by
Section 1.01(1), as limited by Section 1.01(2), it is the
intent of the parties hereto that the Indemnitee shall enjoy under
this Agreement the benefits afforded by any such change.
(4) The indemnity provided in
Section 1.01(1) will also not apply to any proceeding
initiated by the Indemnitee against any of the Companies unless it
is brought to establish or enforce any right under this Indemnity
Agreement.
| 1.02 |
Presumptions/Knowledge |
(1) For purposes of any
determination hereunder the Indemnitee will be deemed, subject to
compelling evidence to the contrary, to have acted in good faith
and/or in the best interests of the relevant Company. The relevant
Company will have the burden of establishing the absence of good
faith.
(2) The knowledge and/or
actions, or failure to act, of any other director, officer, agent
or employee of the relevant Company or any other entity will not be
imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
| 1.03 |
Notice by Indemnitee |
As soon as is practicable,
upon the Indemnitee becoming aware of any proceeding which may give
rise to indemnification under this Agreement other than a
proceeding commenced by one of the Companies, the Indemnitee will
give written notice
Page 2 of 9
to the Companies and to the Indemnitor.
Failure to give notice in a timely fashion will not disentitle the
Indemnitee to indemnification.
(1) The Companies will, upon
request by the Indemnitee, make advances (“ Expense
Advances ”) to the Indemnitee of all amounts for which
the Indemnitee seeks indemnification under this Agreement before
the final disposition of the relevant proceeding. Expense Advances
may include anticipated expenses. In connection with such requests,
the Indemnitee will provide the Companies with a written
affirmation of the Indemnitee’s good faith belief that the
Indemnitee is legally entitled to indemnification, along with
sufficient particulars of the expenses to be covered by the
proposed Expense Advance to enable the Companies to make an
assessment of its reasonableness. The Indemnitee’s
entitlement to such Expense Advance will include those expenses
incurred in connection with proceedings by the Indemnitee against
the Companies seeking an adjudication or award pursuant to this
Agreement. The Companies will make payment to the Indemnitee within
10 days after the Companies have received the foregoing information
from the Indemnitee. All expenses for which indemnification is
sought must be reasonable and Expense Advances must relate to
expenses anticipated within a reasonable time of the
request.
(2) To the extent the
Companies do not provide Expense Advances to the Indemnitee as
required by this Section 1.04 within 120 days of demand by the
Indemnitee on the Companies, the Indemnitor shall be responsible to
the Indemnitee, on demand from the Indemnitee, for providing such
Expense Advances on the terms of this Section 1.04.
(3) The Indemnitee will repay
to the Companies, or if provided by the Indemnitor, to the
Indemnitor, all Expense Advances not actually required, and all
Expense Advances if and to the extent that it is finally determined
by a court of competent jurisdiction that the Indemnitee is not
entitled to indemnification under this Agreement. If requested by
the Companies or the Indemnitor, the Indemnitee will provide a
written undertaking to the Companies confirming the
Indemnitee’s obligations under the preceding sentence as a
condition to receiving an Expense Advance.
| 1.05 |
Indemnification Payments |
With the exception of Expense
Advances which are governed by Section 1.04, the Companies
will pay to the Indemnitee any amounts to which the Indemnitee is
entitled hereunder promptly upon the Indemnitee providing the
Companies with reasonable details of the Claim. The Companies will,
forthwith after any request for payment to or for an Indemnitee,
seek any court approval that may be required to permit payment. The
Companies will not be required to pay any amounts under this
Section 1.05 to an Indemnitee if a court of competent
jurisdiction has finally determined that such Indemnitee is not
entitled to indemnification.
Page 3 of 9
| 1.06 |
Right to Independent Legal Counsel |
If the Indemnitee is named as
a party or a witness to any proceeding, or the Indemnitee is
questioned or any of his or her actions, omissions or activities
are in any way investigated, reviewed or examined in connection
with or in anticipation of any actual or potential proceeding, the
Indemnitee will be entitled to retain independent legal counsel at
the Companies’ expense to act on the Indemnitee’s
behalf to provide an initial assessment
|