{"id":40789,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-24-7-media-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-24-7-media-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-24-7-media-inc.html","title":{"rendered":"Indemnification Agreement &#8211; 24\/7 Media Inc."},"content":{"rendered":"<pre>                            INDEMNIFICATION AGREEMENT\n\n\n            This INDEMNIFICATION AGREEMENT made and entered into this 28th day\nof May, 1998 (the 'Agreement'), by and between 24\/7 MEDIA, INC., a Delaware\ncorporation (together with its affiliates, as defined in the federal securities\nlaws, the 'Company'), and                 (the 'Indemnitee'):\n\n            WHEREAS, highly competent persons are becoming more reluctant to\nserve publicly-held corporations as officers or in other capacities unless they\nare provided with adequate protection through insurance and indemnification\nagainst inordinate risks of claims and actions against them arising out of their\nservice to and activities on behalf of the corporation; and\n\n            WHEREAS, the current difficulties or virtual impossibility of\nobtaining adequate insurance and uncertainties relating to indemnification have\nincreased the difficulty of attracting and retaining such persons; and\n\n            WHEREAS, the Board of Directors of the Company has determined that\nthe inability to attract and retain such persons is detrimental to the best\ninterests of the Company's stockholders and that the Company should act to\nassure such persons that there will be increased certainty of such protection in\nthe future; and\n\n            WHEREAS, it is reasonable, prudent and necessary for the Company\ncontractually to obligate itself to indemnify such persons to the fullest extent\npermitted by applicable law so that they will serve or continue to serve the\nCompany free from undue concern that they will not be so indemnified; and\n\n            WHEREAS, the Indemnitee is willing to serve, continue to serve and\nto take on additional service for or on behalf of the Company on the condition\nthat he be so indemnified;\n\n            NOW, THEREFORE, in consideration of the premises and the covenants\ncontained herein, the Company and the Indemnitee do hereby covenant and agree as\nfollows:\n\n            Section 1. Services by Indemnitee. The Indemnitee agrees to serve as\na director of the Company. The Indemnitee may at any time and for any reason\nresign from such position (subject to any other contractual obligation or other\nobligation imposed by operation of law).\n\n            Section 2. Indemnification. The Company shall indemnify the\nIndemnitee to the fullest extent permitted by applicable law in effect on the\ndate hereof or as such laws may from time to time be amended. Without\ndiminishing the scope of the indemnification provided by this Section 2, the\nrights of indemnification of the\n\n\n\n\nIndemnitee provided hereunder shall include but shall not be limited to those\nrights set forth hereinafter, except to the extent expressly prohibited by\napplicable law.\n\n            Section 3. Action or Proceeding Other Than an Action by or in the\nRight of the Company. The Indemnitee shall be entitled to the indemnification\nrights provided in this Section 3 if he is a party or is threatened to be made a\nparty to any threatened, pending or completed action, suit or proceeding,\nwhether civil, criminal, administrative or investigative in nature, other than\nan action by or in the right of the Company, by reason of the fact that he is or\nwas a director, officer, employee, agent, partner or fiduciary of the Company or\nis or was serving at the request of the Company as a director, officer,\nemployee, agent, partner or fiduciary of any other entity or by reason of\nanything done or not done by him in any such capacity. Pursuant to this Section\n3, the Indemnitee shall be indemnified against all expenses (including\nattorneys' fees), costs, judgments, penalties, fines and amounts paid in\nsettlement actually and reasonably incurred by him in connection with such\naction, suit or proceeding (including, but not limited to, the investigation,\ndefense or appeal thereof), if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the\nCompany, and, with respect to any criminal action or proceeding, he had no\nreasonable cause to believe his conduct was unlawful.\n\n            Section 4. Actions by or in the Right of the Company. The Indemnitee\nshall be entitled to the indemnification rights provided in this Section 4 if he\nis a person who was or is made a party or is threatened to be made a party to\nany threatened, pending or completed action or suit brought by or in the right\nof the Company to procure a judgment in its favor by reason of the fact that he\nis or was a director, officer, employee, agent, partner or fiduciary of the\nCompany or is or was serving at the request of the Company as a director,\nofficer, employee, agent, partner or fiduciary of any other entity by reason of\nanything done or not done by him in any such capacity. Pursuant to this Section\n4, the Indemnitee shall be indemnified against all expenses (including\nattorneys' fees) and costs actually and reasonably incurred by him in connection\nwith such action or suit (including, but not limited to, the investigation,\ndefense, settlement or appeal thereof) if he acted in good faith and in a manner\nhe reasonably believed to be in or not opposed to the best interests of the\nCompany; provided, however, that no such indemnification shall be made in\nrespect of any claim, issue or matter as to which applicable law expressly\nprohibits such indemnification by reason of an adjudication of liability of the\nIndemnitee to the Company, unless, and only to the extent that, the Court of\nChancery of the State of Delaware or the court in which such action or suit was\nbrought shall determine upon application that, despite such adjudication of\nliability but in view of all the circumstances of the case, the Indemnitee is\nfairly and reasonably entitled to indemnification for such expenses and costs as\nsuch court shall deem proper.\n\n                  Section 5. Indemnification for Costs, Charges and Expenses of\nSuccessful Party. Notwithstanding the other provisions of this Agreement and in\naddition to the rights to indemnification set forth in Sections 3 and 4 hereof,\nto the extent that the \n\n\n                                      -2-\n\n\n\nIndemnitee has served as a witness on behalf of the Company or has been\nsuccessful on the merits or otherwise, including, without limitation, the\ndismissal of an action without prejudice, in defense of any action, suit or\nproceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,\nissue or matter therein, he shall be indemnified against all costs, charges and\nexpenses (including attorneys' fees) actually and reasonably incurred by him or\non his behalf in connection therewith.\n\n            Section 6. Partial Indemnification. In addition to the rights to\nindemnification set forth in Sections 3 and 4 hereof, if the Indemnitee is only\npartially successful in the defense, investigation, settlement or appeal of any\naction, suit, investigation or proceeding described in Section 3 or 4 hereof,\nand as a result is not entitled under Section 3, 4 or 5 hereof to\nindemnification by the Company for the total amount of the expenses (including\nattorneys' fees), costs, judgments, penalties, fines, and amounts paid in\nsettlement actually and reasonably incurred by him, the Company shall\nnevertheless indemnify the Indemnitee, as a matter of right pursuant to Section\n5 hereof, to the extent that the Indemnitee has been partially successful.\n\n            Section 7. Determination of Entitlement to Indemnification. Upon\nwritten request by the Indemnitee for indemnification pursuant to Section 3 or 4\nhereof, the entitlement of the Indemnitee to indemnification pursuant to the\nterms of this Agreement shall be determined by the following person or persons\nwho shall be empowered to make such determination: (a) the Board of Directors of\nthe Company by a majority vote of a quorum consisting of Disinterested Directors\n(as hereinafter defined); or (b) if such a quorum is not obtainable or, even if\nobtainable, if the Board of Directors by the majority vote of Disinterested\nDirectors so directs, by Independent Counsel (as hereinafter defined) in a\nwritten opinion to the Board of Directors, a copy of which shall be delivered to\nthe Indemnitee; or (c) by the stockholders of the Company. Independent Counsel\nshall be selected by the Board of Directors and approved by the Indemnitee. Upon\nfailure of the Board so to select Independent Counsel or upon failure of the\nIndemnitee so to approve Independent Counsel, Independent Counsel shall be\nselected by the Chancellor of the State of Delaware or such other person as the\nChancellor shall designate to make such selection. Such determination of\nentitlement to indemnification shall be made not later than 60 days after\nreceipt by the Company of a written request for indemnification. Such request\nshall include documentation or information which is necessary for such\ndetermination and which is reasonably available to the Indemnitee. Any costs or\nexpenses (including attorneys' fees) incurred by the Indemnitee in connection\nwith his request for indemnification hereunder shall be borne by the Company.\nThe Company hereby indemnifies and agrees to hold the Indemnitee harmless\ntherefrom irrespective of the outcome of the determination of the Indemnitee's\nentitlement to indemnification. If the person making such determination shall\ndetermine that the Indemnitee is entitled to indemnification as to part (but not\nall) of the application for indemnification, such person shall reasonably\nprorate such partial indemnification among such claims, issues or matters.\n\n\n                                      -3-\n\n\n\n            Section 8. Presumptions and Effect of Certain Proceedings. The\nSecretary of the Company shall, promptly upon receipt of the Indemnitee's\nrequest for indemnification, advise in writing the Board of Directors or such\nother person or persons empowered to make the determination as provided in\nSection 7 that the Indemnitee has made such request for indemnification. Upon\nmaking such request for indemnification, the Indemnitee shall be presumed to be\nentitled to indemnification hereunder and the Company shall have the burden of\nproof in the making of any determination contrary to such presumption. If the\nperson or persons so empowered to make such determination shall have failed to\nmake the requested indemnification within 60 days after receipt by the Company\nof such request, the requisite determination of entitlement to indemnification\nshall be deemed to have been made and the Indemnitee shall be absolutely\nentitled to such indemnification, absent actual and material fraud in the\nrequest for indemnification. The termination of any action, suit, investigation\nor proceeding described in Section 3 or 4 hereof by judgment, order, settlement\nor conviction, or upon a plea of nolo contendere or its equivalent, shall not,\nof itself: (a) create a presumption that the Indemnitee did not act in good\nfaith and in a manner which he reasonably believed to be in or not opposed to\nthe best interests of the Company, and, with respect to any criminal action or\nproceeding, that the Indemnitee had reasonable cause to believe that his conduct\nwas unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to\nindemnification except as may be provided herein.\n\n            Section 9. Advancement of Expenses and Costs. All reasonable\nexpenses and costs incurred by the Indemnitee (including attorneys' fees,\nretainers and advances of disbursements required of the Indemnitee) shall be\npaid by the Company in advance of the final disposition of such action, suit or\nproceeding at the request of the Indemnitee within 20 days after the receipt by\nthe Company of a statement or statements from the Indemnitee requesting such\nadvance or advances from time to time. The Indemnitee's entitlement to such\nexpenses shall include those incurred in connection with any proceeding by the\nIndemnitee seeking an adjudication or award in arbitration pursuant to this\nAgreement. Such statement or statements shall reasonably evidence the expenses\nand costs incurred by him in connection therewith and shall include or be\naccompanied by an undertaking by or on behalf of the Indemnitee to repay such\namount if it is ultimately determined that the Indemnitee is not entitled to be\nindemnified against such expenses and costs by the Company as provided by this\nAgreement or otherwise.\n\n            Section 10. Remedies of Indemnitee in Cases of Determination not to\nIndemnify or to Advance Expenses. In the event that a determination is made that\nthe Indemnitee is not entitled to indemnification hereunder or if payment has\nnot been timely made following a determination of entitlement to indemnification\npursuant to Sections 7 and 8, or if expenses are not advanced pursuant to\nSection 9, the Indemnitee shall be entitled to a final adjudication in an\nappropriate court of the State of Delaware or any other court of competent\njurisdiction of his entitlement to such indemnification or advance.\nAlternatively, the Indemnitee at his option may seek an award in arbitration to\nbe conducted by a single arbitrator pursuant to the rules of the American\nArbitration \n\n\n                                      -4-\n\n\n\nAssociation, such award to be made within 60 days following the filing of the\ndemand for arbitration. The Company shall not oppose the Indemnitee's right to\nseek any such adjudication or award in arbitration or any other claim, but may\noppose the Indemnitee's right to indemnification. Such judicial proceeding or\narbitration shall be made de novo and the Indemnitee shall not be prejudiced by\nreason of a determination (if so made) pursuant to Sections 7 and 8 that he is\nnot entitled to indemnification. If a determination is made or deemed to have\nbeen made pursuant to the terms of Section 7 or Section 8 hereof that the\nIndemnitee is entitled to indemnification, the Company shall be bound by such\ndetermination and is precluded from asserting that such determination has not\nbeen made or that the procedure by which such determination was made is not\nvalid, binding and enforceable. The Company further agrees to stipulate in any\nsuch court or before any such arbitrator that the Company is bound by all the\nprovisions of this Agreement and is precluded from making any assertion to the\ncontrary. If the court or arbitrator shall determine that the Indemnitee is\nentitled to any indemnification hereunder, the Company shall pay all reasonable\nexpenses (including attorneys' fees) and costs actually incurred by the\nIndemnitee in connection with such adjudication or award in arbitration\n(including, but not limited to, any appellate proceedings).\n\n            Section 11. Other Rights to Indemnification. The indemnification and\nadvancement of expenses (including attorneys' fees) and costs provided by this\nAgreement shall not be deemed exclusive of any other rights to which the\nIndemnitee may now or in the future be entitled under any provision of the\nby-laws, agreement, provision of the Certificate of Incorporation, vote of\nstockholders or disinterested directors, provision of law or otherwise.\n\n            Section 12. Attorneys' Fees and Other Expenses To Enforce Agreement.\nIn the event that the Indemnitee is subject to or intervenes in any proceeding\nin which the validity or enforceability of this Agreement is at issue or seeks\nan adjudication or award in arbitration to enforce his rights under, or to\nrecover damages for breach of, this Agreement, the Indemnitee, if he prevails in\nwhole or in part in such action, shall be entitled to recover from the Company\nand shall be indemnified by the Company against, any actual expenses for\nattorneys' fees and disbursements reasonably incurred by him.\n\n            Section 13. Duration of Agreement. This Agreement shall continue\nuntil and terminate upon the later of: (a) 10 years after the Indemnitee has\nceased to occupy any of the positions or have any of the relationships described\nin Sections 3 and 4 of this Agreement; and (b) the final termination of all\npending or threatened actions, suits, proceedings or investigations with respect\nto the Indemnitee. This Agreement shall be binding upon the Company and its\nsuccessors and assigns and shall inure to the benefit the Indemnitee and his\nspouse, assigns, heirs, devises, executors, administrators or other legal\nrepresentatives.\n\n            Section 14. Severability. If any provision or provisions of this\nAgreement shall be held to be invalid, illegal or unenforceable for any reason\nwhatsoever: (a) the \n\n\n                                      -5-\n\n\n\nvalidity, legality and enforceability of the remaining provisions of this\nAgreement (including, without limitation, all portions of any paragraphs of this\nAgreement containing any such provision held to be invalid, illegal or\nunenforceable, that are not themselves invalid, illegal or unenforceable) shall\nnot in any way be affected or impaired thereby; and (b) to the fullest extent\npossible, the provisions of this Agreement (including, without limitation, all\nportions of any paragraph of this Agreement containing any such provision held\nto be invalid, illegal or unenforceable, that are not themselves invalid,\nillegal or unenforceable) shall be construed so as to give effect to the intent\nmanifested by the provision held invalid, illegal or unenforceable.\n\n            Section 15. Identical Counterparts. This Agreement may be executed\nin one or more counterparts, each of which shall for all purposes be deemed to\nbe an original but all of which together shall constitute one and the same\nAgreement. Only one such counterpart signed by the party against whom\nenforceability is sought needs to be produced to evidence the existence of this\nAgreement.\n\n            Section 16. Headings. The headings of the Sections of this Agreement\nare inserted for convenience only and shall not be deemed to constitute part of\nthis Agreement or to affect the construction thereof.\n\n            Section 17. Definitions. For purposes of this Agreement:\n\n                    (a) 'Disinterested Director' shall mean a director of the\nCompany who is not or was not a party to the action, suit, investigation or\nproceeding in respect of which indemnification is being sought by the\nIndemnitee.\n\n                    (b) 'Independent Counsel' shall mean a law firm or a member\nof a law firm that neither is presently nor in the past five years has been\nretained to represent: (i) the Company or the Indemnitee in any matter material\nto either such party, or (ii) any other party to the action, suit, investigation\nor proceeding giving rise to a claim for indemnification hereunder.\nNotwithstanding the foregoing, the term 'Independent Counsel' shall not include\nany person who, under the applicable standards of professional conduct then\nprevailing, would have a conflict of interest in representing either the Company\nor the Indemnitee in an action to determine the Indemnitee's right to\nindemnification under this Agreement.\n\n            Section 18. Modification and Waiver. No supplement, modification or\namendment of this Agreement shall be binding unless executed in writing by both\nof the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions hereof\n(whether or not similar) nor shall such waiver constitute a continuing waiver.\n\n            Section 19. Notice by the Indemnitee. The Indemnitee agrees promptly\nto notify the Company in writing upon being served with any summons, citation,\nsubpoena, \n\n\n                                      -6-\n\n\n\ncomplaint, indictment, information or other document relating to any matter\nwhich may be subject to indemnification covered hereunder, either civil,\ncriminal or investigative.\n\n            Section 20. Notices. All notices, requests, demands and other\ncommunications hereunder shall be in writing and shall be deemed to have been\nduly given if (i) delivered by hand and receipted for by the party to whom said\nnotice or other communication shall have been directed or if (ii) mailed by\ncertified or registered mail with postage prepaid, on the third business day\nafter the date on which it is so mailed:\n\n                    (a) If to the Indemnitee, to the address written on the\nsignature page hereto or such other address as the Indemnitee may furnish in\nwriting.\n\n                    (b) If to the Company to: \n\n                             24\/7 MEDIA, INC.                \n                             1250 Broadway \n                             New York, NY 10001 \n                             Attn: Chief Executive Officer\n                       \nor to such other address as may have been furnished to the Indemnitee by the\nCompany or to the Company by the Indemnitee, as the case may be.\n\n            Section 21. Governing Law. The parties agree that this Agreement\nshall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware, without giving effect to the conflict of laws.\n\n\n                                      -7-\n\n\n\n            IN WITNESS WHEREOF, the parties hereto have executed this Agreement\non the day and year first above written.\n\n\n                                            24\/7 MEDIA, INC.\n\n\n                                       By:\n                                            -------------------------------\n\n\n                                            -------------------------------\n                                            Name:\n\n                           Address:        \n                                            -------------------------------\n\n                                            -------------------------------\n\n                                            -------------------------------\n\n                                            -------------------------------\n\n                                      -8-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9553,9557],"class_list":["post-40789","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40789","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40789"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40789"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40789"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40789"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}