EXHIBIT 10
[CBS CORPORATION
LETTERHEAD]
[Date]
[Indemnitee Name]
[Address]
Dear [____________],
This Agreement (the
“Agreement”) is made and entered into as of [date] by
and between CBS Corporation, a Delaware corporation (the
“Corporation”), and [_________]
(“Indemnitee”). Capitalized terms used herein that are
not previously defined will have the meanings ascribed to them in
Section (11) hereof.
Reference is hereby made to Article
VI of the Amended and Restated Certificate of Incorporation of the
Corporation as in effect as of the date hereof (the “Charter
Indemnity Provision”), a copy of which is attached hereto as
Exhibit A. In consideration of your continuing service to the
Corporation and in order to eliminate any ambiguity in the event of
any purported amendment, modification, alteration or repeal of the
Charter Indemnity Provision during the effective time of this
Agreement that might otherwise diminish, limit, restrict, adversely
affect or eliminate any of your rights to indemnification,
advancement of expenses or otherwise under the Charter Indemnity
Provision, this will confirm that any such purported amendment,
modification, alteration or repeal shall not in any way diminish,
limit, restrict, adversely affect or eliminate any such right with
respect to any actual or alleged state of facts, occurrence, action
or omission existing during the effective time of this Agreement,
or any action, suit or proceeding previously or thereafter brought
or threatened based in whole or in part upon any such actual or
alleged state of facts, occurrence, action or omission. The
Corporation hereby agrees that your rights under the Charter
Indemnity Provision are contract rights that are hereby
incorporated into this Agreement and shall continue during the
effective time of this Agreement, without amendment or repeal, even
in the event that you cease your association with the Corporation
and that such rights shall be for your benefit and for the benefit
of your heirs, executors and administrators. In the event of any
conflict between the provisions of the Charter Indemnity Provision
and the other provisions of this Agreement, the provisions most
favorable to the Indemnitee shall control except to the extent
otherwise required by applicable law.
In furtherance of your rights under
the Charter Indemnity Provision, and without limiting the
generality thereof:
(1)
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified to the maximum extent permitted by law against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Corporation shall
indemnify Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with each successfully resolved claim, issue or matter.
For purposes of this Section and without
limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
(2)
Contribution . To the fullest extent permissible under
applicable law, if the indemnification provided for in this
Agreement is unavailable to Indemnitee for any reason whatsoever,
the Corporation, in lieu of indemnifying Indemnitee, shall
contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any
claim relating to an indemnifiable event under this Agreement, in
such proportion as is deemed fair and reasonable in light of all of
the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Corporation and Indemnitee as a
result of the event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (ii) the relative fault of the Corporation (and
its other directors, officers, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
(3)
Indemnification for Expenses of a Witness . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith.
(4) Procedures
and Presumptions for Determination of Entitlement to
Indemnification . Subject to Section (6) hereof, it is the
intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the
Delaware General Corporation Law and public policy of the State of
Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification
under this Agreement:
(a) To obtain
indemnification (including, but not limited to, the advancement of
Expenses and contribution by the Corporation) under this Agreement,
Indemnitee shall submit to the Secretary of the Corporation 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 of the
Corporation shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) In the event
the Corporation shall be obligated hereunder to pay the Expenses of
any Proceeding, the Corporation shall be entitled to assume the
defense of such Proceeding with counsel approved by Indemnitee,
which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election so to do.
After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Corporation,
the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding; provided
that (i) Indemnitee shall have the right to employ
Indemnitee’s counsel in any such Proceeding at
Indemnitee’s expense and (ii) if (A) the employment
of counsel by Indemnitee has been previously authorized by the
Corporation, (B) Indemnitee shall have reasonably concluded
that there is a conflict of interest between the Corporation and
Indemnitee in the conduct of any such
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defense, or (C) the Corporation
shall not continue to retain such counsel to defend such
Proceeding, then the fees and Expenses of Indemnitee counsel shall
be at the expense of the Corporation. The Corporation shall have
the right to conduct such defense as it sees fit in its sole
discretion; provided , however , the Corporation
shall not, without the prior written consent of Indemnitee, consent
to the entry of any judgment against Indemnitee or enter into any
settlement or compromise respecting the Indemnitee which (i)
includes an admission of fault of Indemnitee or (ii) does not
include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to
Indemnitee.
(c) Upon written
request by Indemnitee for indemnification pursuant to the first
sentence of Section (4)(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case: (i) if specified by
Indemnitee in the written request for indemnification pursuant to
Section (4)(a), then such determination shall be made as so
specified (A) by Independent Counsel in a written opinion to the
Board or (B) by a majority vote of the Disinterested Directors,
even though less than a quorum of the Board (or, as directed by
such Disinterested Directors, by a committee of Disinterested
Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board) or (ii) if
Indemnitee’s written request for indemnification pursuant to
Section (4)(a) does not include a request that such determination
be made by Independent Counsel or Disinterested Directors, then
such determination shall be made at the election of the Board of
Directors (A) by a majority vote of the Disinterested Directors,
even though less than a quorum of the Board; (B) by a committee of
Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum of the
Board; (C) if there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee; (D) if so directed by the Board of
Directors, by the stockholders of the Corporation; or (E) as
provided in Section (4)(g) of this Agreement; and, if it is so
determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within ten (10) days after such
determination.
(d) If the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section (4)(c) hereof, the
Independent Counsel shall be selected as provided in this Section
(4)(d). The Independent Counsel shall be selected by the Board of
Directors. Indemnitee may, within ten (10) days after such written
notice of selection shall have been given, deliver to the
Corporation a written objection to such selection; provided
, however , that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “Independent Counsel” as defined in
Section (11) of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as
Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court has determined that such objection is without merit. If,
within twenty (20) days after submission by Indemnitee of a written
request for indemnification pursuant to Section (4)(a) hereof, no
Independent Counsel shall have been selected without objection,
either the Corporation or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which
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shall have been made by Indemnitee
to the Corporation’s selection of Independent Counsel and/or
for the appointment as Independent 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 all objections are so resolved or
the person so appointed shall act as Independent Counsel under
Section (4)(c) hereof. The Corporation shall pay any and all
reasonable fees and Expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section (4)(c) hereof, and the Corporation shall pay all reasonable
fees and Expenses incident to the procedures of this Section
(4)(d), regardless of the manner in which such Independent Counsel
was selected or appointed.
(e) In making a
determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of
persuasion.
(f) For
purposes of any determination of good faith, Indemnitee shall be
deemed to have acted in good faith if Indemnitee’s action is
based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to
Indemnitee by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on
information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Enterprise. In
addition, the knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. The provisions of this
Section (4)(f) shall not be deemed to be exclusive or