Form Of INDEMNIFICATION AGREEMENT)
Exhibit
10.5
(Form
Of INDEMNIFICATION AGREEMENT)
This
Indemnification Agreement (“Agreement”) is made as of ________ __, 2007, by and
between GSC Acquisition Company, a Delaware corporation (the “Company”), and
______________ (“Indemnitee”).
RECITALS
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as [directors] [officers] or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of
their
service to and activities on behalf of the corporation;
WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that, in
order to attract and retain qualified individuals, the Company will attempt
to
maintain on an ongoing basis, at its sole expense, liability insurance to
protect persons serving the Company and its subsidiaries, if any, from certain
liabilities. Although the furnishing of such insurance has been a customary
and
widespread practice among United States-based corporations and other business
enterprises, the Company believes that, given current market conditions and
trends, such insurance may be available to it in the future only at higher
premiums and with more exclusions. At the same time, directors, officers, and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating
to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself. The By-laws and Amended
and
Restated Certificate of Incorporation of the Company require indemnification
of
the officers and directors of the Company. Indemnitee may also be entitled
to
indemnification pursuant to the General Corporation Law of the State of Delaware
(the “DGCL”). The Amended and Restated Certificate of Incorporation expressly
provides for the Company to indemnify its officers and directors to the full
extent permitted by Section 145 of the DGCL, and thereby contemplates that
contracts may be entered into between the Company and members of the Board
and
officers with respect to indemnification;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, 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;
WHEREAS,
this Agreement is a supplement to and in furtherance of the By-laws of the
Company and any resolutions adopted pursuant thereto, and shall not be deemed
a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS,
Indemnitee does not regard the protection available under the Company’s By-laws
and insurance as adequate in the present circumstances, and may not be willing
to serve as an officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing to serve,
continue to serve and to take on additional service for or on behalf of the
Company on the condition that he be so indemnified; and
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
Section
1. Services
to the Company.
Indemnitee agrees to serve as a [director] [officer] of the Company. Indemnitee
may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation of law),
in
which event the Company shall have no obligation under this Agreement to
continue Indemnitee in such position. This Agreement shall not be deemed an
employment contract between the Company (or any of its subsidiaries or any
Enterprise) and Indemnitee. Indemnitee specifically acknowledges that
Indemnitee’s employment with the Company (or any of its subsidiaries or any
Enterprise), if any, is at will, and the Indemnitee may be discharged at any
time for any reason, with or without cause, except as may be otherwise provided
in any written employment contract between Indemnitee and the Company (or any
of
its subsidiaries or any Enterprise), other applicable formal severance policies
duly adopted by the Board, or, with respect to service as a director or officer
of the Company, by the Company’s Certificate of Incorporation, the Company’s
By-laws, and the DGCL. The foregoing notwithstanding, this Agreement shall
continue in force after Indemnitee has ceased to serve as an [officer]
[director] of the Company.
Section
2. Definitions.
As used
in this Agreement:
(a) A
“Change
in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:
i. Acquisition
of Stock by Third Party. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities
of
the Company representing forty percent (40%) or more of the combined voting
power of the Company’s then-outstanding securities;
ii. Change
in
Board. During any period of two (2) consecutive years (not including any period
prior to the execution of this Agreement), individuals who at the beginning
of
such period constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in Sections 2(a)(i) or 2(a)(iii)) whose election
by the Board or nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election
or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority of the members of the Board; and
iii. Corporate
Transactions. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more
than
51% of the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation and with
the
power to elect at least a majority of the board of directors or other governing
body of such surviving entity.
For
purposes of this Section 2(a), the following terms shall have the following
meanings:
(A) “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided,
however,
that
Person shall exclude (i) the Company, (ii) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, and (iii)
any
corporation owned, directly or indirectly, by the stockholders of the Company
in
substantially the same proportions as their ownership of stock of the
Company.
(B) “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided,
however,
that
Beneficial Owner shall exclude any Person otherwise becoming a Beneficial Owner
by reason of the stockholders of the Company approving a merger of the Company
with another entity.
(b) “Corporate
Status” describes the status of a person who is or was a director, officer,
employee or agent of the Company or of any Enterprise.
(c) “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) “Enterprise”
shall mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
of
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary.
(e) “Expenses”
shall include all reasonable 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 otherwise participating
in, a Proceeding. Expenses also shall include (i) Expenses incurred in
connection with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to any cost
bond,
supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes
of Section 13(d) only, Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights
under
this
Agreement, by litigation or otherwise. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(f) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
the
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent 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. The Company agrees
to pay the reasonable fees and expenses of the Independent Counsel referred
to
above and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(g) The
term
“Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative legislative, or investigative nature, including any
appeal therefrom, in which Indemnitee was, is or will be involved as a party,
potential party, non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of any
action taken by him or of any action on his part while acting as director or
officer of the Company, or by reason of the fact that he is or was serving
at
the request of the Company as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, in each case whether or not serving in such capacity at the
time any liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses can be provided under this Agreement;
except one initiated by an Indemnitee to enforce his rights under this
Agreement.
(h) Reference
to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of the Company” shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants
or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
manner “not opposed to the best interests of the Company” as referred to in this
Agreement.
Section
3. Indemnity
in Third-Party Proceedings.
The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, other than a Proceeding by or in the right of
the
Company to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee
or
on his
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner he reasonably believed to
be
in or not opposed to the best interests of the Company and, in the case of
a
criminal proceeding had no reasonable cause to believe that his conduct was
unlawful.
Section
4. Indemnity
in Proceedings by or in the Right of the Company.
The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding by or in the right of the Company to procure
a
judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted
in good faith and in a manner he reasonably believed to be in or not opposed
to
the best interests of the Company. No indemnification for Expenses shall be
made
under this Section 4 in respect of any claim, issue or matter as to which
Indemnitee shall have been finally adjudged by a court to be liable to the
Company, unless and only to the extent that the Delaware Court of Chancery
or
any court in which the Proceeding was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnification.
Section
5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the fullest extent
permitted by applicable law and to the extent that Indemnitee is a party to
(or
a participant in) and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in whole or
in
part, the Company shall indemnify Indemnitee against all Expenses actually
and
reasonably incurred by him 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 Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each successfully
resolved claim, issue or matter. If the Indemnitee is not wholly successful
in
such Proceeding, the Company also shall indemnify Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or matter related
to any claim, issue, or matter on which the Indemnitee was successful. 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.
Section
6. Indemnification
For Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the fullest extent
permitted by applicable law and to the extent that Indemnitee is, by reason
of
his Corporate Status, a witness in any Proceeding to which Indemnitee is not
a
party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
Section
7. Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee
to
the fullest extent permitted by applicable law if Indemnitee is a party to
or
threatened to be made a party to any Proceeding (including a Proceeding by
or in
the right of
the
Company to procure a judgment in its favor) against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
(b) For
purposes of Section 7(a), the meaning of the phrase “to the fullest extent
permitted by applicable law” shall include, but not be limited to:
i. to
the
fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, and
ii. to
the
fullest extent authorized or permitted by any amendments to or replacements
of
the DGCL adopted after the date of this Agreement that increase the extent
to
which a corporation may indemnify its officers and directors.
Section
8. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any
claim:
(a) for
which
payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond
the amount paid under such insurance policy or other indemnity provision;
or
(b) for
(i) an
accounting of profits made from the purchase and sale (or sale and purchase)
by
Indemnitee of securities of the Company within the meaning of Section 16(b)
of
the Exchange Act (as defined in Section 2(a) hereof) or similar provisions
of
state statutory law or common law, or (ii) any reimbursement of the Company
by
the Indemnitee of any bonus or other incentive-based or equity-based
compensation or of any profits realized by the Indemnitee from the sale of
securities of the Company, as required in each case under the Exchange Act
(including any such reimbursements that arise from an accounting restatement
of
the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the payment to the Company of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 306 of
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), or
(c) except
as
provided in Section 13(d) of this Agreement, in connection with any Proceeding
(or any part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the
Company or its directors, officers, employees or other indemnitees, unless
(i)
the Board authorized the Proceeding (or any part of any Proceeding) prior to
its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law.
Section
9. Advances
of Expenses.
Notwithstanding any provision of this Agreement to the contrary, the Company
shall advance, to the extent not prohibited by law, the Expenses incurred by
Indemnitee in connection with any Proceeding, and such advancement shall be
made
within thirty (30) days after the receipt by the Company of a statement or
statements requesting such advances from time to time, whether prior to or
after
final disposition of any Proceeding. Advances shall be unsecured and interest
free. Advances shall be made without regard to
Indemnitee’s
ability to repay the Expenses and without regard to Indemnitee’s ultimate
entitlement to indemnification under the other provisions of this Agreement.
Advances shall include any and all reasonable Expenses incurred pursuing an
action to enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the advances
claimed. The Indemnitee shall qualify for advances upon the execution and
delivery to the Company of this Agreement, which shall constitute an undertaking
providing that the Indemnitee undertakes to repay the advance to the extent
that
it is ultimately determined that Indemnitee is not entitled to be indemnified
by
the Company. This Section 9 shall not apply to any claim made by Indemnitee
for
which indemnity is excluded pursuant to Section 8.
Section
10. Procedure
for Notification and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder
as soon as reasonably practicable following the receipt by Indemnitee of written
notice thereof. The written notification to the Company shall include a
description of the nature of the Proceeding and the facts underlying the
Proceeding. 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 following the final disposition of such action,
suit
or proceeding. The omission by Indemnitee to notify the Company hereunder will
not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in so notifying
the Company shall not constitute a waiver by Indemnitee of any rights under
this
Agreement. The Secretary of the Company shall, promptly upon receipt of such
a
request for indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) The
Company will be entitled to participate in the Proceeding at its own
expense.
Section
11. Procedure
Upon Application for Indemnification.
(a) Upon
written request by Indemnitee for indemnification pursuant to Section 10(a),
a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion to
the
Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change
in
Control shall not have occurred, (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, a copy of which shall
be
delivered to Indemnitee or (D) if so directed by the Board, by the stockholders
of the Company; 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. Indemnitee shall cooperate with the person, persons or
entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or
information
which is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or Expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(b) In
the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel
shall be selected as provided in this Section 11(b). If a Change in Control
shall not have occurred, the Independent Counsel shall be selected by the Board,
and the Company shall give written notice to Indemnitee advising him of the
identity of the Independent Counsel so selected. If a Change in Control shall
have occurred, the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board, in which
event the preceding sentence shall apply), and Indemnitee shall give written
notice to the Company advising it of the identity of the Independent Counsel
so
selected. In either event, Indemnitee or the Company, as the case may be, may,
within ten (10) 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; 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 2 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 such
written objection is so made and substantiated, the Independent Counsel so
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 the later of submission by Indemnitee of a written
request for indemnification pursuant to Section 10(a) hereof and the final
disposition of the Proceeding, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition a court
of
competent jurisdiction for resolution of any objection which shall have been
made by the Company or Indemnitee to the other’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 11(a) hereof. Upon
the
due commencement of any judicial proceeding or arbitration pursuant to Section
13(a) of this Agreement, Independent Counsel shall be discharged and relieved
of
any further responsibility in such capacity (subject to the applicable standards
of professional conduct then prevailing).
Section
12. Presumptions
and Effect of Certain Proceedings.
(a) In
making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request
for
indemnification in accordance with Section 10(a) of this Agreement, and the
Company shall, to the fullest extent not prohibited by law, have the burden
of
proof to overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption. Neither
the
failure of the
Company
(including by its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has
met
the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or independent legal counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action
or
create a presumption that Indemnitee has not met the applicable standard of
conduct.
(b) Subject
to
Section 13(e), if the person, persons or entity empowered or selected under
Section 11 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty (60) days
after
receipt by the Company of the request therefor, the requisite determination
of
entitlement to indemnification shall, to the fullest extent not prohibited
by
law, be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact,
or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the 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 thirty (30) days, if the person, persons or entity 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 thereto; and provided,
further,
that the
foregoing provisions of this Section 12(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 11(a) of this Agreement and if (A) within
fifteen (15) days after receipt by the Company of the request for such
determination the Board has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such determination is
made
thereat, or (B) a special meeting of stockholders is called within fifteen
(15)
days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so
called and such determination is made thereat, or (ii) if the determination
of
entitlement to indemnification is to be made by Independent Counsel pursuant
to
Section 11(a) of this Agreement.
(c) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(d) Reliance
as Safe Harbor. 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 the reasonable care by the Enterprise. The provisions
of this Section 12(d) shall not be deemed to be exclusive or to limit in any
way
the other circumstances in which the
Indemnitee
may be deemed to have met the applicable standard of conduct set forth in this
Agreement.
(e) Actions
of
Others. 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.
Section
13. Remedies
of Indemnitee.
(a) Subject
to
Section 13(e), in the event that (i) a determination is made pursuant to Section
11 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 9 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of this Agreement
within ninety (90) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section
5 or 6 or the last sentence of Section 11(a) of this Agreement within ten (10)
days after receipt by the Company of a written request therefor, (v) payment
of
indemnification pursuant to Section 3, 4 or 7 of this Agreement is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification, or (vi) in the event that the Company or any other
person takes or threatens to take any action to declare this Agreement void
or
unenforceable, or institutes any litigation or other action or Proceeding
designed to deny, or to recover from, the Indemnitee the benefits provided
or
intended to be provided to the Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by a 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 proceeding seeking an adjudication
or an award in arbitration within 180 days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 13(a); provided,
however,
that the
foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5 of this Agreement. The Company
shall not oppose Indemnitee’s right to seek any such adjudication or award in
arbitration.
(b) In
the
event that a determination shall have been made pursuant to Section 11(a) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 13 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 that adverse determination.
In
any judicial proceeding or arbitration commenced pursuant to this Section 13
the
Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If
a
determination shall have been made pursuant to Section 11(a) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound
by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 13, absent (i) a misstatement by Indemnitee of a material fact,
or an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law.
(d) The
Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 13 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.
It
is the intent of the Company that the Indemnitee not be required to incur legal
fees or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefor) advance, to the extent not prohibited by law, such
Expenses to Indemnitee, which are incurred by Indemnitee in connection with
any
action brought by Indemnitee for indemnification or advance of Expenses from
the
Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advancement
of
Expenses or insurance recovery, as the case may be.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior
to
the final disposition of the Proceeding.
Section
14. Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights
of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Company’s Certificate of
Incorporation, the Company’s By-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right
of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration
or
repeal. To the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Company’s By-laws, Amended and
Restated Certificate of Incorporation and this Agreement, it is the intent
of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and
remedy shall be cumulative and in addition to every other right and remedy
given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.
(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company
or of any Enterprise, 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 or agent under such policy
or
policies. If, at the time of the receipt of a notice of a claim pursuant to
the
terms hereof, the Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the
insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of
such proceeding in accordance with the terms of such policies.
(c) In
the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee,
who
shall execute all papers required and 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.
(d) The
Company’s obligation to indemnify or advance Expenses hereunder in respect of
Indemnitee’s service to an Enterprise shall be reduced by any amount Indemnitee
has actually received as indemnification or advancement of Expenses from such
Enterprise.
Section
15. Duration
of Agreement.
This
Agreement shall continue until and terminate upon the later of: (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a [director]
[officer] of the Company or (b) one (1) year after the final termination of
any
Proceeding then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 13 of this Agreement relating
thereto. This Agreement shall be binding upon the Company and its successors
and
assigns and shall inure to the benefit of Indemnitee and his heirs, executors
and administrators.
Section
16. Severability.
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 (including without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(b)
such provision or provisions shall be deemed reformed to the extent necessary
to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
Section
17. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director or officer of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a director or
officer of the Company.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided,
however,
that
this Agreement is a supplement to and in furtherance of
the
Certificate of Incorporation of the Company, the By-laws of the Company and
applicable law, and shall not be deemed a substitute therefor, nor to diminish
or abrogate any rights of Indemnitee thereunder.
Section
18. Modification
and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties thereto. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement nor shall any waiver constitute a continuing
waiver.
Section
19. Notice
by Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder. The failure of
Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or
otherwise.
Section
20. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if (a) delivered
by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, (b) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed, (c) mailed by reputable overnight courier and receipted for by the
party
to whom said notice or other communication shall have been directed or (d)
sent
by facsimile transmission, with receipt of oral confirmation that such
transmission has been received:
(a) If
to
Indemnitee, at the address indicated on the signature page of this Agreement,
or
such other address as Indemnitee shall provide to the Company.
(b) If
to the
Company, to
GSC
Acquisition Company
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Attention:
Corporate Secretary
or
to any
other address as may have been furnished to Indemnitee by the
Company.
Section
21. 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 Company, 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 Company 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 Company
(and its directors, officers, employees and agents) and Indemnitee in connection
with such event(s) and/or transaction(s).
Section
22. Applicable
Law and Consent to Jurisdiction.
This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 13(a) of this Agreement,
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of Delaware (the
“Delaware Court”), and not in any other state or federal court in the United
States of America or any court in any other country, (ii) consent to submit
to
the exclusive jurisdiction of the Delaware Court for purposes of any action
or
proceeding arising out of or in connection with this Agreement, (iii) waive
any
objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.
Section
23. Identical
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
Section
24. Miscellaneous.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
IN
WITNESS
WHEREOF, the parties have caused this Agreement to be signed as of the day
and
year first above written.
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GSC
ACQUISITION COMPANY
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INDEMNITEE
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By:
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Name:
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Name:
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Office:
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Address:
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