INDEMNIFICATION AGREEMENT
Exhibit 10.7
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into this [ ]
day of [ ], 2008, by and between Ascent Media Corporation, a Delaware
corporation (the “Company”), and [ ] (the “Indemnitee”).
WHEREAS, it is essential to the Company and its mission to retain and attract as officers and
directors the most capable persons available;
WHEREAS, the Company has asked Indemnitee to serve as a(n) [officer]/[director] of the
Company;
WHEREAS, both the Company and Indemnitee recognize the omnipresent risk of litigation and
other claims that are routinely asserted against officers and directors of companies operating in
the public arena in the current environment, and the attendant costs of defending even wholly
frivolous claims;
WHEREAS, it has become increasingly difficult to obtain insurance against the risk of personal
liability of officers and directors on terms providing reasonable protection to the individual at
reasonable cost to the companies;
WHEREAS, the certificate of incorporation and Bylaws of the Company provide certain
indemnification rights to the officers and directors of the Company, as provided by Delaware law;
WHEREAS, to induce Indemnitee to become a(n) [officer]/[director] of the Company, in
recognition of Indemnitee’s need for substantial protection against personal liability in order to
enhance Indemnitee’s continued service to the Company in an effective manner, the increasing
difficulty in obtaining and maintaining satisfactory insurance coverage, and Indemnitee’s reliance
on assurance of indemnification, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest extent permitted by
law (whether partial or complete) and as set forth in this Agreement, and, to the extent insurance
is maintained, for the continued coverage of Indemnitee under the Company’s directors’ and
officers’ liability insurance policies;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements
contained herein and Indemnitee’s continuing to serve as an officer of the Company, the parties
hereto agree as follows:
| 1. | Certain Definitions: | |
| (a) Change in Control: shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the |
| stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under such Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (66-2/3%) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company’s assets. | ||
| (b) Claim: any threatened, pending or completed action, suit or proceeding, whether instituted by the Company or any other party, or any inquiry or investigation that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil (including intentional and unintentional tort claims), criminal, administrative, investigative or other. | ||
| (c) Expenses: include attorneys’ fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event. | ||
| (d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, or by reason of anything done or not done by Indemnitee in any such capacity. | ||
| (e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). | ||
| (f) Reviewing Party: any appropriate person or body consisting of a member or members of the Company’s Board of Directors or any other person or body appointed by |
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| the Company’s Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel. | ||
| (g) Voting Securities: shares of any series or class of common stock or preferred stock of the Company, in each case, entitled to vote generally upon all matters that may be submitted to a vote of stockholders of the Company at any annual or special meeting thereof. |
| 2. | Basic Indemnification Arrangement. | |
| (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, 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 Expenses, judgments, fines, penalties or amounts paid in settlement) of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee as incurred (an “Expense Advance”). | ||
| (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in Delaware having subject matter jurisdiction thereof |
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| and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. |
3. Change in Control. The Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a majority of the Company’s Board of
Directors who were directors immediately prior to such Change in Control) then with respect to all
matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or Company Bylaw or charter provision now or
hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Such counsel, among other things, shall render
its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would
be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify such counsel against any
and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee against any and
all expenses (including attorneys’ fees) and, if requested by Indemnitee, shall (within two
business days of such request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any action brought by Indemnitee (whether pursuant to Section 17 of
this Agreement or otherwise) for (i) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement or Company Bylaw or charter provision now or hereafter
in effect relating to Claims for Indemnifiable Events or (ii) recovery under any directors’ and
officers’ liability insurance policies maintained by the Company, to the fullest extent permitted
by law, regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may be.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments, fines, penalties
and amounts paid in settlement of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection therewith.
6. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
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7. No Presumptions. For purposes of this Agreement, the termination of any claim, 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 any particular belief or that a
court has determined that indemnification is not permitted by applicable law. In addition, neither
the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination
that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee’s claim
or create a presumption that Indemnitee has not met any particular standard of conduct or did not
have any particular belief.
8. Nonexclusivity; Subsequent Change in Law. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Company’s Bylaws or certificate of
incorporation, under Delaware law or otherwise. To the extent that a change in Delaware law
(whether by statute or judicial decision) permits greater indemnification by agreement than would
be afforded currently under the Company’s Bylaws and certificate of incorporation and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
9. Liability Insurance. To the extent the Company maintains an insurance policy or policies
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 available
for any Company director or officer.
10. Amendments; Waiver. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
11. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring suit to enforce
such rights.
12. No Duplication of Payments. The Company shall not be liable under this Agreement to make any
payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise
actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
13. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company), assigns, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether Indemnitee
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continues to serve as a director, officer, employee, agent or fiduciary of the Company or of any
other enterprise at the Company’s request.
14. Severability. The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or sentence) is held
by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect,
and the validity and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the
fullest extent permitted by law.
15. Effective Date. This Agreement shall be effective as of the date hereof and shall apply to any
claim for indemnification by the Indemnitee on or after such date.
16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware applicable to contracts made and to be performed in such
state without giving effect to the principles of conflicts of laws.
17. Injunctive Relief. The parties hereto agree that Indemnitee may enforce this Agreement by
seeking specific performance hereof, without any necessity of showing irreparable harm or posting a
bond, which requirements are hereby waived, and that by seeking specific performance, Indemnitee
shall not be precluded from seeking or obtaining any other relief to which he may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
above.
| ASCENT MEDIA CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
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| Name: | ||||
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