Exhibit 10.10
INDEMNIFICATION AGREEMENT
This Agreement made and entered into as of the ____ day of October,
2003, by and between MEDIALINK WORLDWIDE INCORPORATED, a Delaware corporation,
hereinafter called the "Company", and _________________________, an individual
residing at ______________________________________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Company is desirous of providing Indemnitee with
limitation of liability and indemnification to the fullest extent permitted by
law;
WHEREAS, the Company desires to have Indemnitee serve or continue to
serve as a director of the Company or of any other corporation, subsidiary,
partnership, joint venture, trust or other enterprise (herein called
"Affiliate") of which he has been or will be serving at the request, for the
convenience, or to represent the interests of the Company, with the assurance
that the Company will indemnify him against costs and risks of claims for
damages by reason of his being a director of the Company or of an Affiliate, or
by reason of his decisions or actions on their behalf;
WHEREAS, the Company has agreed to provide Indemnitee with the
benefits contemplated by this Agreement, together with coverage under any
directors' and officers' liability insurance policy presently in force or which
may be obtained in the future; and
WHEREAS, Indemnitee desires to serve or to continue to serve as such
director; provided that he is furnished with the indemnity provided for
hereinafter. NOW, THEREFORE, for and in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby covenant and
agree as follows: 1. AGREEMENT TO SERVE. Indemnitee will serve and/or continue
to serve the Company or an Affiliate of the Company, at the will of the Company,
as a director faithfully and to the best of his ability so long as he is duly
elected and qualified in accordance with the provisions of the Company's Amended
and Restated Certificate of Incorporation and the Company's Amended and Restated
By-Laws, or until such time as he tenders his resignation in writing.
2. INDEMNIFICATION.
A. The Company hereby agrees to indemnify and hold harmless
Indemnitee to the fullest extent permitted by the Company's Amended and Restated
Certificate of Incorporation, its Amended and Restated By-Laws, the Delaware
General Corporation Law (the "DGCL") or any other applicable law, as any or all
may be amended from time to time, against any and all amounts which he is or
becomes obligated to pay as a result of any charge, claim or claims, whether
civil or criminal, made against him because of any act or omission or neglect or
breach of duty, including any actual or alleged error or misstatement or
misleading statement or other act done or wrongfully attempted, which he commits
or suffers while acting in his capacity as a director of the Company or an
Affiliate thereof and as a result of his being such a director; provided,
however, that if the DGCL is repealed or modified the result of which limits
Indemnitee's indemnification rights and/or protection under the DGCL, then with
respect to any event occurring prior to such repeal or modification, Indemnitee
shall be entitled to the indemnification rights and protection provided under
the DGCL as if such repeal or modification had not occurred, provided such
indemnification would not result in the Company violating any provision of the
DGCL or other applicable law. The payments which the Company will be obligated
to make hereunder shall include but shall not be limited to all expenses
(including reasonable attorneys' fees), damages, judgments, fines, settlements
and costs, costs of investigation and costs of defense of any actual or
threatened legal actions or claims, or of any actual or threatened judicial,
administrative or other proceedings, and appeals therefrom and costs of
attachment or similar bonds, and shall be payable within 30 days after the
Indemnitee has given the Company a written claim for such funds, as set forth in
Section 2(B) hereof; provided, however, that the Company shall not be obligated
to pay fines or other obligations or fees imposed by law or otherwise which it
is prohibited by applicable law from paying as indemnity. To the full extent so
permitted, the foregoing shall apply to actions by or in the right of the
Company and shall require the Company to pay expenses, including bail bonds, if
any, in advance of final disposition as set forth above.
B. If a claim under this Agreement is not paid by the Company,
or on its behalf, within 30 days after a written claim has been given to the
Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and if successful, the
Indemnitee shall also be entitled to be paid all costs and expenses of
prosecuting such claim, including reasonable attorneys' fees and interest. As a
condition precedent to his right to be indemnified hereunder, Indemnitee shall
give the Company notice in writing as soon as reasonably practicable of any
claim made against him for which indemnity will or could be sought under this
Agreement. Notice to the Company shall be directed to Medialink Worldwide
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Chairman of the
Board, and shall be deemed received if sent by registered or certified mail,
return receipt requested.
C. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the right of
recovery of the Indemnitee.
3. INSURANCE. The Company, to the extent it is available at a
reasonable commercial price, shall maintain a directors' and officers' liability
insurance policy pursuant to which Indemnitee shall receive insurance coverage.
4. LIMITATIONS. The Company shall not be liable under this Agreement
to make any payment in connection with any claim:
A. for which payment is actually made to the Indemnitee under
a valid and collectable Company insurance policy, premiums for which are paid by
the Company or any of its Affiliates, except in respect of any deductible and
excess beyond the amount of payment under such insurance;
B. for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement, provided such amount has previously
been paid to the Indemnitee;
C. based upon or attributable to the Indemnitee gaining in
fact any personal profit or advantage to which he was not legally entitled;
D. by an Indemnitee who acts as a plaintiff suing the Company,
its Affiliates or other directors or officers of the Company or its Affiliates;
and
E. brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; provided, however, notwithstanding the
foregoing, the Indemnitee shall be protected under this Agreement as to any
claim upon which suit may be brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other final and non-appealable
adjudication thereof adverse to the Indemnitee shall establish that he committed
acts of active and deliberate dishonesty with actual dishonest purpose and
intent, which acts were material and an essential element to the cause of action
so adjudicated.
5. DETERMINATION OF RIGHTS. The determination of the rights of
Indemnitee to indemnification and payment of expenses under this Agreement or
under the provisions of the Amended and Restated Certificate of Incorporation or
the Amended and Restated By-Laws of the Company shall be made by (i) the Board
of Directors or a committee of non-officer directors of the Board of Directors,
a majority of which shall be disinterested, (ii) special, independent counsel
selected and appointed by the Board of Directors or a committee of non-officer
directors, or (iii) such other body of persons as may be permitted by the DGCL.
Notwithstanding the foregoing, if there has been a Change of Control (as
hereinafter defined) after the date of this Agreement, then such determination
and evaluation shall be made by a special independent counsel who is selected by
the Indemnitee and approved by the Company, which approval shall not be
unreasonably withheld. The fees of such special independent counsel shall be
paid by the Company. A "Change of Control" shall be deemed to have occurred if,
without the prior approval or support of the Board of Directors, any of the
following shall occur: (i) any person (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the
beneficial owner of 33% or more of the voting power of the Company, (ii) at the
end of any one year period a majority of the Board of Directors shall consist of
persons who were not directors at the beginning of such period, or (iii) a
merger or consolidation of the Company, other than one resulting in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent 80% of the voting power of the Company or such surviving entity
immediately thereafter.
6. CUMULATIVE RIGHTS AND SEVERABILITY. Nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under the Company's directors' and officers' liability
insurance, any provision of the Company's Amended and Restated Certificate of
Incorporation, its Amended and Restated By-Laws, a vote of stockholders or
disinterested directors, or under the DGCL or any other applicable law. On the
contrary, the rights granted to Indemnitee hereunder are intended to protect
Indemnitee to the fullest extent permitted by law and shall be cumulative and in
addition to any rights that Indemnitee may have from any other source. If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever (a) the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby, and (b) to the fullest extent possible the
provisions of this Agreement shall be construed so as to give effect to the
intent manifested by the provisions held invalid, illegal or unenforceable.
7. SURVIVAL. The obligations of the Company hereunder will survive
(a) any actual or purported termination of this Agreement by the Company or its
successors or assigns, whether by operation of law or otherwise, (b) any change
in the Company's Amended and Restated Certificate of Incorporation or Amended
and Restated By-Laws, and (c) termination of the Indemnitee's services to the
Company or an Affiliate thereof (whether such services were terminated by the
Company, such Affiliate or the Indemnitee), whether or not a claim is made or an
action or proceeding is threatened or commenced before or after the actual or
purported termination of this Agreement, change in the Company's Amended and
Restated Certificate of Incorporation or Amended and Restated By-Laws, or
termination of the Indemnitee's services.
8. GOVERNING LAW. The parties hereto agree that this Agreement shall
be construed and enforced in accordance with and governed by the laws of the
State of Delaware.
9. SUCCESSOR AND ASSIGNS. The Company shall cause this Agreement to
be binding upon all successors and assigns of the Company (including any
transferee of all or substantially all of its assets and any successor by merger
or otherwise by operation of law). This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators, personal
representatives and estate of the Indemnitee. 10. BOARD APPROVAL. This Agreement
has been approved by the Board of Directors of the Company. IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed and signed as
of the day and year first above written.
MEDIALINK WORLDWIDE INCORPORATED
By:
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Title:
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