Indemnification Agreement - Sinclair Broadcasting Group Inc. and Barry Baker
SINCLAIR BROADCAST GROUP, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into as of April 10, 1996
("Agreement"), between Sinclair Broadcast Group, Inc., a Maryland corporation
(the "Company"), and Barry Baker ("Indemnitee").
Background Statement and Recitals
Highly competent and experienced persons are becoming more
reluctant to serve corporations as directors or in other capacities unless they
are provided with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation.
The Board of Directors of the Company (the "Board") has
determined that the inability to attract and retain such persons would be
detrimental to the best interests of the Company and its stockholders and that
the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
The Board has also determined that it is reasonable, prudent
and necessary for the Company, in addition to purchasing and maintaining
directors' and officers' liability insurance (or otherwise providing for
adequate arrangements of self-insurance), contractually to obligate itself to
indemnify such persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue concern that
they will not be so indemnified.
Upon the commencement of the Employment Term under the
Employment Agreement dated of even date herewith among the Company and
Indemnitee (the "Employment Agreement"), Indemnitee is willing to serve as (i)
the President and Chief Executive Officer of Sinclair Communications, Inc.
("SCI"), (ii) the Executive Vice President of the Company, (iii) a member of the
Board of Directors of the Company and SCI and (iv) the President, Chief
Executive Officer and as a member of the Board of Directors of such direct or
indirect subsidiaries of SCI as Indemnitee shall from time to time determine and
to take on additional service for or on behalf of the Company on the condition
that he be so indemnified.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, the parties hereby
agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
As used herein, the following words and terms shall have the
following respective meanings:
"Change in Control" shall have the meaning ascribed to such
term in the Employment Agreement.
"Claim" means an actual or threatened claim or request for
relief.
"Corporate Status" means the status of a person who is or was
a director, nominee for director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving at the
request of the Company.
"Disinterested Director," with respect to any request by
Indemnitee for indemnification hereunder, means a director of the Company who is
not, at the time of determination, a party to the Proceeding or subject to a
Claim, issue or matter in respect of which indemnification is sought by
Indemnitee.
"Employment Term" shall have the meaning ascribed to such term
in the Employment Agreement.
"Expenses" means all attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or participating in
(including on appeal), a Proceeding.
"MGCL" means the Maryland General Corporation Law and any
successor statute thereto as either of them may be amended from time to time.
"person" shall have the meaning ascribed to such term in
Sections 13(d) and 14(d) of the Exchange Act.
"Proceeding" means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative and whether or not based upon events occurring,
or actions taken, before the date hereof (except any of the foregoing initiated
by Indemnitee pursuant to Article VI or Section 7.8 to enforce his rights under
this Agreement), and any
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inquiry or investigation that could lead to, and any appeal in or related to,
any such action, suit, arbitration, alternative dispute resolution mechanism,
hearing or proceeding.
"Special Legal Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
contemporaneously is, nor in the five years theretofore has been, retained to
represent (a) the Company or Indemnitee in any matter material to either such
party, (b) any other party to the Proceeding giving rise to a claim for
indemnification hereunder or (c) the beneficial owner, directly or indirectly,
of securities of the Company representing 20% or more of the combined voting
power of the Company's then outstanding voting securities (other than, in each
such case, with respect to matters concerning the rights of Indemnitee under
this Agreement, or of other indemnitees under similar indemnification
agreements). Notwithstanding the foregoing, the term "Special Legal Counsel"
shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement.
ARTICLE II
SERVICES BY INDEMNITEE
Section 2.1 Services. Upon the commencement of the Employment
Term, Indemnitee agrees to serve as (i) the President and Chief Executive
Officer of SCI, (ii) the Executive Vice President of the Company, (iii) a
director of the Company and SCI and (iv) the President, Chief Executive Officer
and as a director of such direct or indirect subsidiaries of SCI as Indemnitee
shall from time to time determine. In addition, Indemnitee agrees to serve, as
the Company may request from time to time, as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. Indemnitee and the Company each
acknowledge that they have entered into this Agreement as a means of inducing
Indemnitee to serve the Company in such capacities. Indemnitee may at any time
and for any reason resign from such position or positions (subject to any other
contractual obligation or any obligation imposed by operation of law). The
Company shall have no obligation under this Agreement to continue Indemnitee in
any such position or positions.
ARTICLE III
INDEMNIFICATION
Section 3.1 General. The Company shall indemnify, and advance
Expenses to, Indemnitee to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the right to be
indemnified and to have Expenses advanced in all Proceedings to the fullest
extent permitted by Section 2-418 of the MGCL. The provisions set forth in this
Agreement are
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provided in addition to and as a means of furtherance and implementation of, and
not in limitation of, the obligations expressed in this Article III.
Section 3.2 Proceedings Other Than by or in Right of the
Company. Indemnitee shall be entitled to indemnification pursuant to this
Section 3.2 if, by reason of his Corporate Status, he was, is or is threatened
to be made, a party to any Proceeding, other than a Proceeding by or in the
right of the Company. Pursuant to this Section 3.2, the Company shall indemnify
Indemnitee against Expenses, judgments, penalties, fines and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with any such Expenses, judgments, penalties, fines and
amounts paid in settlement) actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any Claim, issue or matter therein,
unless it is established that (a) the act or omission of the Indemnitee was
material to the matter giving rise to the Proceeding and (i) was committed by
the Indemnitee in bad faith or (ii) was the result of active and deliberate
dishonesty; or (b) the Indemnitee actually received an improper personal benefit
in money, property or services; or (c) in the case of any criminal Proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. Nothing in this Section 3.2 shall limit the benefits of Section 3.1 or
any other provision of this Agreement.
Section 3.3 Proceedings by or in Right of the Company.
Indemnitee shall be entitled to indemnification pursuant to this Section 3.3 if,
by reason of his Corporate Status, he was, is or is threatened to be made, a
party to any Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 3.3, the Company shall indemnify
Indemnitee against Expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any Claim, issue or matter therein,
unless it is established that (a) the act or omission of the Indemnitee was
material to the matter giving rise to the Proceeding and (i) was committed by
the Indemnitee in bad faith or (ii) was the result of active and deliberate
dishonesty; or (b) the Indemnitee actually received an improper personal benefit
in money, property or services; or (c) in the case of any criminal Proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. Notwithstanding the foregoing, no indemnification against such
Expenses shall be made in respect of any Claim, issue or matter in such
Proceeding as to which Indemnitee shall have been adjudged to be liable to the
Company if applicable law prohibits such indemnification; provided, however,
that, if applicable law so permits, indemnification against such Expenses shall
nevertheless be made by the Company in such event if and only to the extent that
a court of competent jurisdiction (the "Court"), or the court in which such
Proceeding shall have been brought or is pending, shall so determine. Nothing in
this Section 3.3 shall limit the benefits of Section 3.1 or any other provision
of this Agreement.
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ARTICLE IV
EXPENSES
Section 4.1 Expenses of a Party Who Is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement to the
contrary (except as set forth in Section 7.2(c) or 7.6), and without a
requirement for any determination described in Section 5.2, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with any Proceeding to which Indemnitee was
or is a party by reason of his Corporate Status and in which Indemnitee is
successful, on the merits or otherwise. If Indemnitee is not wholly successful,
on the merits or otherwise, in a Proceeding but is successful, on the merits or
otherwise, as to any Claim, issue or matter in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf relating to each successfully resolved Claim, issue or
matter. For purposes of this Section 4.1 and without limitation, the termination
of a Claim, issue or matter in a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such Claim, issue or
matter.
Section 4.2 Expenses of a Witness or Non-Party.
Notwithstanding any other provision of this Agreement to the contrary, to the
extent that Indemnitee is, by reason of his Corporate Status, a witness or
otherwise participates in any Proceeding at a time when he is not a party in the
Proceeding, the Company shall indemnify him against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 4.3 Advancement of Expenses. The Company shall pay all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding, whether brought by or in the right of the Company or otherwise,
in advance of any determination with respect to entitlement to indemnification
pursuant to Article V within 15 days after the receipt by the Company of a
written request from Indemnitee requesting such payment or payments from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and, if delivered prior to the final disposition of the Proceeding,
contain a written affirmation of Indemnitee's good faith belief that he is
entitled to indemnification by the Company hereunder or pursuant to the relevant
provisions of the MGCL. Indemnitee hereby undertakes and agrees that he will
reimburse and repay the Company for any Expenses so advanced to the extent that
it shall ultimately be determined (in a final adjudication by a court from which
there is no further right of appeal or in a final adjudication of an arbitration
pursuant to Section 6.1 if Indemnitee elects to seek such arbitration) that
Indemnitee is not entitled to be indemnified by the Company against such
Expenses.
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ARTICLE V
PROCEDURE FOR DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION
Section 5.1 Request by Indemnitee. To obtain indemnification
under this Agreement, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary or an Assistant Secretary of the Company shall, promptly upon receipt
of such a request for indemnification, advise the members of the Board in
writing that Indemnitee has requested indemnification.
Section 5.2 Determination of Request. Upon written request by
Indemnitee for indemnification pursuant to Section 5.1, a determination, if
required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case as follows:
(a) If a Change in Control shall have occurred, by
Special Legal Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee unless Indemnitee shall request
that such determination be made by the Disinterested Directors, in
which case in the manner provided for in clause (i) of paragraph (b)
below;
(b) If a Change in Control shall not have occurred,
(i) by a majority vote of a quorum of the Board consisting of
Disinterested Directors, or (ii) if such a quorum cannot be obtained,
by a majority vote of a committee of the Board consisting solely of two
or more Disinterested Directors who were designated to act in the
matter by a majority vote of the full Board, or (iii) if there are no
Disinterested Directors, or if such Disinterested Directors so direct,
by Special Legal Counsel, or (iv) if Indemnitee and the Company
mutually agree, by the stockholders of the Company; or
(c) As provided in Section 5.4(b).
If it is so determined that Indemnitee is entitled to indemnification hereunder,
payment to Indemnitee shall be made within 15 days after such determination.
Indemnitee shall cooperate with the person or persons making such determination
with respect to Indemnitee's entitlement to indemnification, including providing
to such person upon reasonable advance request any documentation or information
that is not privileged or otherwise protected from disclosure and that is
reasonably available to Indemnitee and reasonably necessary for such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person or
persons making such determination shall be borne by the Company (irrespective of
the determination as to Indemnitee's entitlement to indemnification), and the
Company shall indemnify and hold harmless Indemnitee therefrom.
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Section 5.3 Special Legal Counsel. If a Change in Control
shall not have occurred and the determination of entitlement to indemnification
is to be made by Special Legal Counsel, the Special Legal Counsel shall be
selected by (a) a majority vote of a quorum of the Board consisting of
Disinterested Directors, or (b) if such a quorum cannot be obtained, by a
majority vote of a committee of the Board consisting solely of two or more
Disinterested Directors who were designated to act in the matter by a majority
vote of the full Board, or (c) if the quorum referred to in Section 5.3(a)
cannot be obtained and the committee referred to in Section 5.3(b) cannot be
established, by a majority vote of the Board, and the Company shall give written
notice to Indemnitee, within ten days after receipt by the Company of
Indemnitee's request for indemnification, specifying the identity and address of
the Special Legal Counsel so selected. If a Change in Control shall have
occurred and the determination of entitlement to indemnification is to be made
by Special Legal Counsel, the Special Legal Counsel shall be selected by
Indemnitee, and Indemnitee shall give written notice to the Company, within ten
days after submission of Indemnitee's request for indemnification, specifying
the identity and address of the Special Legal Counsel so selected (unless
Indemnitee shall request that such selection be made by the Disinterested
Directors, in which event the Company shall give written notice to Indemnitee,
within ten days after receipt of Indemnitee's request for the Disinterested
Directors to make such selection, specifying the identity and address of the
Special Legal Counsel so selected). In either event, (i) such notice to
Indemnitee or the Company, as the case may be, shall be accompanied by a written
affirmation of the Special Legal Counsel so selected that it satisfies the
requirements of the definition of "Special Legal Counsel" in Article I and that
it agrees to serve in such capacity and (ii) Indemnitee or the Company, as the
case may be, may, within seven days after such written notice of selection shall
have been given, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection. Any objection to selection of Special Legal
Counsel pursuant to this Section 5.3 may be asserted only on the ground that the
Special Legal Counsel so selected does not meet the requirements of the
definition of "Special Legal Counsel" in Article I, and the objection shall set
forth with particularity the factual basis of such assertion. If such written
objection is timely made, the Special Legal Counsel so selected may not serve as
Special Legal Counsel unless and until the Court has determined that such
objection is without merit. In the event of a timely written objection to a
choice of Special Legal Counsel, the party originally selecting the Special
Legal Counsel shall have seven days to make an alternate selection of Special
Legal Counsel and to give written notice of such selection to the other party,
after which time such other party shall have five days to make a written
objection to such alternate selection. If, within 30 days after submission of
Indemnitee's request for indemnification pursuant to Section 5.1, no Special
Legal Counsel shall have been selected and not objected to, either the Company
or Indemnitee may petition the Court for resolution of any objection that shall
have been made by the Company or Indemnitee to the other's selection of Special
Legal Counsel and/or for the appointment as Special Legal Counsel of a person
selected by the Court or by such other person as the Court shall designate, and
the person with respect to whom an objection is so resolved or the person so
appointed shall act as Special Legal Counsel under Section 5.2. The Company
shall pay any and all reasonable fees and expenses incurred by such Special
Legal Counsel in connection with acting pursuant to Section 5.2, and the Company
shall pay all reasonable fees and expenses incident to the procedures of this
Section 5.3, regardless of the manner in which such Special
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Legal Counsel was selected or appointed. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 6.1, Special Legal
Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then
prevailing).
Section 5.4 Presumptions and Effect of Certain Proceedings.
(a) Indemnitee shall be presumed to be entitled to
indemnification under this Agreement upon submission of a request for
indemnification pursuant to Section 5.1, and the Company shall have the
burden of proof in overcoming that presumption in reaching a
determination contrary to that presumption. Such presumption shall be
used by Special Legal Counsel (or other person or persons determining
entitlement to indemnification) as a basis for a determination of
entitlement to indemnification unless the Company provides information
sufficient to overcome such presumption by clear and convincing
evidence.
(b) If the person or persons empowered or selected
under this Article V to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within 60 days
after receipt by the Company of Indemnitee's request for
indemnification, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall
be entitled to such indemnification, absent (i) a knowing misstatement
by Indemnitee of a material fact, or knowing omission of a material
fact necessary to make Indemnitee's statement not materially
misleading, in connection with Indemnitee's request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be
extended for a reasonable time, not to exceed an additional 30 days, if
the person making the determination with respect to entitlement to
indemnification in good faith requires such additional time for the
obtaining or evaluating of documentation and/or information relating to
such determination; provided further, that the 60-day limitation set
forth in this Section 5.4(b) shall not apply and such period shall be
extended as necessary (i) if within 30 days after receipt by the
Company of Indemnitee's request for indemnification under Section 5.1
Indemnitee and the Company have agreed, and the Board has resolved, to
submit such determination to the stockholders of the Company pursuant
to Section 5.2(b) for their consideration at an annual meeting of
stockholders to be held within 90 days after such agreement and such
determination is made thereat, or a special meeting of stockholders for
the purpose of making such determination to be held within 60 days
after such agreement and such determination is made thereat, or (ii) if
the determination of entitlement to indemnification is to be made by
Special Legal Counsel, in which case the applicable period shall be as
set forth in clause (c) of Section 6.1.
(c) The termination of any Proceeding or of any
Claim, issue or matter by judgment, order or settlement (whether with
or without court approval) shall not by itself adversely affect the
rights of Indemnitee to indemnification or create a presumption
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that the act or omission of the Indemnitee was material to the matter
giving rise to the Proceeding and was committed by the Indemnitee in
bad faith or was the result of active and deliberate dishonesty or that
the Indemnitee actually received an improper personal benefit in money,
property or services or in the case of any criminal Proceeding, the
Indemnitee had reasonable cause to believe that the act or omission was
unlawful. The termination of any Proceeding or of any Claim, issue or
matter by conviction, or a plea of nolo contendere or its equivalent or
an entry of an order of probation prior to judgment, shall create a
rebuttable presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 5.4(c). Indemnitee shall
be deemed to have been found liable in respect of any Claim, issue or
matter only after he shall have been so adjudged by the Court after
exhaustion of all appeals therefrom.
ARTICLE VI
CERTAIN REMEDIES OF INDEMNITEE
Section 6.1 Indemnitee Entitled to Adjudication in an
Appropriate Court. If (a) a determination is made pursuant to Article V that
Indemnitee is not entitled to indemnification under this Agreement, (b) there
has been any failure by the Company to make timely payment or advancement of any
amounts due hereunder, or (c) the determination of entitlement to
indemnification is to be made by Special Legal Counsel and such determination
shall not have been made and delivered in a written opinion within 90 days after
the latest of (i) such Special Legal Counsel's being appointed, (ii) the
overruling by the Court of objections to such counsel's selection or (iii)
expiration of all periods for the Company or Indemnitee to object to such
counsel's selection, Indemnitee shall be entitled to commence an action seeking
an adjudication in the Court of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
commercial arbitration rules of the American Arbitration Association. Indemnitee
shall commence such action seeking an adjudication or an award in arbitration
within 180 days following the date on which Indemnitee first has the right to
commence such action pursuant to this Section 6.1, or such right shall expire.
The Company shall not oppose Indemnitee's right to seek any such adjudication or
award in arbitration.
Section 6.2 Adverse Determination Not to Affect any Judicial
Proceeding. If a determination shall have been made pursuant to Article V that
Indemnitee is not entitled to indemnification under this Agreement, any judicial
proceeding or arbitration commenced pursuant to this Article VI shall be
conducted in all respects as a de novo trial or arbitration on the merits, and
Indemnitee shall not be prejudiced by reason of such initial adverse
determination. In any judicial proceeding or arbitration commenced pursuant to
this Article VI, Indemnitee shall be presumed to be entitled to indemnification
or advancement of Expenses, as the case may be, under this Agreement and the
Company shall have the burden of proof in overcoming such presumption and to
show by clear and convincing evidence that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
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Section 6.3 Company Bound by Determination Favorable to
Indemnitee in any Judicial Proceeding or Arbitration. If a determination shall
have been made or deemed to have been made pursuant to Article V that Indemnitee
is entitled to indemnification, the Company shall be irrevocably bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Article VI and shall be precluded from asserting that such determination
has not been made or that the procedure by which such determination was made is
not valid, binding and enforceable, in each such case absent (a) a knowing
misstatement by Indemnitee of a material fact, or a knowing omission of a
material fact necessary to make a statement by Indemnitee not materially
misleading, in connection with Indemnitee's request for indemnification or (b) a
prohibition of such indemnification under applicable law.
Section 6.4 Company Bound by the Agreement. The Company shall
be precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Article VI that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
Section 6.5 Indemnitee Entitled to Expenses of Judicial
Proceeding. If Indemnitee seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Company, and
the Company shall indemnify Indemnitee against, any and all expenses (of the
types described in the definition of Expenses in Article I) actually and
reasonably incurred by him in such judicial adjudication or arbitration but only
if Indemnitee prevails therein. If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses or other benefit sought,
the expenses incurred by Indemnitee in connection with such judicial
adjudication or arbitration shall be equitably allocated between the Company and
Indemnitee. Notwithstanding the foregoing, if a Change in Control shall have
occurred, Indemnitee shall be entitled to indemnification under this Section 6.5
regardless of whether Indemnitee ultimately prevails in such judicial
adjudication or arbitration.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Non-Exclusivity. The rights of Indemnitee to
receive indemnification and advancement of Expenses under this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, the Charter or Bylaws of the Company, any
other agreement, a resolution of stockholders or directors, or otherwise. No
amendment or alteration of the Charter or Bylaws of the Company or any provision
thereof shall adversely affect Indemnitee's rights hereunder and such rights
shall be in addition to any rights Indemnitee may have under the Company's
Charter, Bylaws and the MGCL or otherwise. To the extent that there is a change
in the MGCL or other applicable law (whether by statute or judicial decision)
that allows greater indemnification by
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agreement than would be afforded currently under the Company's Charter or Bylaws
and this Agreement, it is the intent of the parties hereto that the Indemnitee
shall enjoy by virtue of this Agreement the greater benefit so afforded by such
change.
Section 7.2 Insurance and Subrogation.
(a) To the extent the Company maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that such person serves at the request of the
Company, 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 such director, officer, employee, agent or
fiduciary under such policy or policies.
(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, who 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 bring suit to enforce such rights.
(c) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under the Company's Charter or Bylaws or any
insurance policy, contract, agreement or otherwise.
Section 7.3 Certain Settlement Provisions. The Company shall
have no obligation to indemnify Indemnitee under this Agreement for amounts paid
in settlement of a Proceeding or Claim without the Company's prior written
consent. The Company shall not settle any Proceeding or Claim in any manner that
would impose any fine or other obligation on Indemnitee without Indemnitee's
prior written consent. Neither the Company nor Indemnitee shall unreasonably
withhold their consent to any proposed settlement.
Section 7.4 Duration of Agreement. This Agreement shall
continue for so long as Indemnitee serves as a director, nominee for director,
officer, employee, agent or fiduciary of the Company or, at the request of the
Company, as a director, nominee for director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, and thereafter shall survive until and
terminate upon the latest to occur of (a) the expiration of ten years after the
latest date that Indemnitee shall have ceased to serve in any such capacity; (b)
the final termination of all pending Proceedings in respect of which Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any proceeding commenced by Indemnitee pursuant to Article VI relating thereto;
or (c) the expiration of all statutes of limitation applicable to possible
Claims arising out of Indemnitee's Corporate Status.
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Section 7.5 Notice by Each Party. Indemnitee shall promptly
notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document or communication
relating to any Proceeding or Claim for which Indemnitee may be entitled to
indemnification or advancement of Expenses hereunder; provided, however, that
any failure of Indemnitee to so notify the Company shall not adversely affect
Indemnitee's rights under this Agreement except to the extent the Company shall
have been materially prejudiced as a direct result of such failure. The Company
shall notify promptly Indemnitee in writing as to the pendency of any Proceeding
or Claim that may involve a claim against the Indemnitee for which Indemnitee
may be entitled to indemnification or advancement of Expenses hereunder.
Section 7.6 Certain Persons Not Entitled to Indemnification.
Notwithstanding any other provision of this Agreement to the contrary,
Indemnitee shall not be entitled to indemnification or advancement of Expenses
hereunder with respect to any Proceeding or any Claim, issue or matter therein,
brought or made by Indemnitee against the Company or any affiliate of the
Company, except as specifically provided in Article V or Article VI.
Section 7.7 Indemnification for Negligence, Gross Negligence,
etc. Without limiting the generality of any other provision hereunder, it is the
express intent of this Agreement that Indemnitee be indemnified and Expenses be
advanced regardless of Indemnitee's acts of negligence, gross negligence or
intentional or willful misconduct to the extent that indemnification and
advancement of Expenses is allowed pursuant to the terms of this Agreement and
under applicable law.
Section 7.8 Enforcement. The Company agrees that its execution
of this Agreement shall constitute a stipulation by which it shall be
irrevocably bound in any court or arbitration in which a proceeding by
Indemnitee for enforcement of his rights hereunder shall have been commenced,
continued or appealed, that its obligations set forth in this Agreement are
unique and special, and that failure of the Company to comply with the
provisions of this Agreement will cause irreparable and irremediable injury to
Indemnitee, for which a remedy at law will be inadequate. As a result, in
addition to any other right or remedy he may have at law or in equity with
respect to breach of this Agreement, Indemnitee shall be entitled to injunctive
or mandatory relief directing specific performance by the Company of its
obligations under this Agreement.
Section 7.9 Successors and Assigns. All of the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors, administrators and legal representatives.
The Company shall require and cause any direct or indirect successor (whether by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company, by written agreement in form and substance
reasonably satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.
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Section 7.10 Amendment. This Agreement may not be modified or
amended except by a written instrument executed by or on behalf of each of the
parties hereto.
Section 7.11 Waivers. The observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce such term only
by a writing signed by the party against which such waiver is to be asserted.
Unless otherwise expressly provided herein, no delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
Section 7.12 Entire Agreement. This Agreement and the
documents expressly referred to herein constitute the entire agreement between
the parties hereto with respect to the matters covered hereby, and any other
prior or contemporaneous oral or written understandings or agreements with
respect to the matters covered hereby are expressly superseded by this
Agreement.
Section 7.13 Severability. If any provision of this Agreement
(including any provision within a single section, paragraph or sentence) or the
application of such provision to any person or circumstance, shall be judicially
declared to be invalid, unenforceable or void, such decision will not have the
effect of invalidating or voiding the remainder of this Agreement or affect the
application of such provision to other persons or circumstances, it being the
intent and agreement of the parties that this Agreement shall be deemed amended
by modifying such provision to the extent necessary to render it valid, legal
and enforceable while preserving its intent, or if such modification is not
possible, by substituting therefor another provision that is valid, legal and
unenforceable and that achieves the same objective. Any such finding of
invalidity or unenforceability shall not prevent the enforcement of such
provision in any other jurisdiction to the maximum extent permitted by
applicable law.
Section 7.14 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery of
a standard overnight courier or when delivered by hand or (c) the expiration of
five business days after the date mailed by certified or registered mail (return
receipt requested), postage prepaid, to the parties at the following addresses
(or at such other addresses for a party as shall be specified by like notice):
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If to the Company, to:
Sinclair Broadcast Group, Inc.
2000 West 41st Street
Baltimore, Maryland 21211
Attention: Chief Executive Officer
Facsimile: (410) 467-5043
with a copy to:
Thomas & Libowitz, P.A.
The USF&G Tower
100 Light Street
Suite 1100
Baltimore, Maryland 21202
Attention: Steven A. Thomas
Facsimile: (410) 752-2046
If to Indemnitee, to:
Indemnitee, at his address set forth
on the personnel records of the
Company
with a copy to:
Baker & Botts, L.L.P.
2001 Ross Avenue
Dallas, Texas 75201
Attention: Andrew M. Baker
Facsimile: (214) 953-6503
Section 7.15 Certain Construction Rules.
(a) The article and section headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. As used in
this Agreement, unless otherwise provided to the contrary, (i) all
references to days shall be deemed references to calendar days and (ii)
any reference to a "Section" or "Article" shall be deemed to refer to a
section or article of this Agreement. The words "hereof," "herein" and
"hereunder" and words of similar import referring to this Agreement
refer to this Agreement as a whole and not to any particular provision
of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." Unless otherwise
specifically provided for herein, the term
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"or" shall not be deemed to be exclusive. Whenever the context may
require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice
versa.
(b) For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; references to "serving at the
request of the Company" shall include any service as a director,
nominee for director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, nominee,
officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and an action taken or omitted by a
person with respect to an employee benefit plan in the performance of
his duties for a purpose he reasonably believed to be in the interest
of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is to not opposed to the best interests of the
Company.
Section 7.16 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Maryland, without
giving effect to the conflicts of laws principles thereof.
Section 7.17 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument,
notwithstanding that both parties are not signatories to the original or same
counterpart.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the date first above written.
SINCLAIR BROADCAST GROUP, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Chief Executive Officer
INDEMNITEE
/s/ Barry Baker
------------------------------
Barry Baker
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