INDEMNIFICATION AGREEMENT
Exhibit 10.10
This Indemnification Agreement (“Agreement”) is made as of , 2007 by and
among Global Consumer Acquisition Corp., 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 and/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 Company has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company and that the Company should act to
assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, the Delaware General Corporation Law (“DGCL”), expressly provides that the
indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between companies and members of the board of directors, officers and
others with respect to indemnification;
WHEREAS, it is reasonable, prudent and necessary for the Company to contractually 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, Indemnitee may not be willing to serve as a [director][officer] of the Company
without the additional protection provided for under this Agreement, and the Company desires
Indemnitee to serve in such capacity and Indemnitee is willing to serve and continue to serve on
the condition that he be so indemnified; and
NOW, THEREFORE, the Company and Indemnitee do hereby agree as follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve, or continue to serve, at the will
of the Company in accordance with the Bylaws, as a [director][officer] of the Company for so long
as Indemnitee is duly elected or appointed or until Indemnitee tenders his resignation; provided,
however, that nothing herein is intended to modify or alter the rights and obligations of the
Company and Indemnitee under any employment agreement between the Company and Indemnitee that is
now in effect or that hereafter comes into effect.
2. DEFINITIONS. As used in this Agreement:
(a) “Action” means 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 or investigative nature.
(b) “Beneficial Owner” shall have the meaning given to such term in Rule 13d-3 under
the Exchange Act; provided, 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.
(c) “Board” means the Board of Directors of the Company.
(d) “Bylaws” means the Amended and Restated Bylaws of the Company, as such Amended and
Restated Bylaws may hereafter be further amended from time to time.
(e) “Certificate of Incorporation” means the Restated Certificate of Incorporation of
the Company, as such Restated Certificate of Incorporation may hereafter be further amended from
time to time.
(f) 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) Upon any “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under any employee
benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of Common Stock of the
Company), becoming the owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or more of the combined voting power of
the Company’s then outstanding securities;
(ii) During any period of two (2) consecutive years, 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 paragraph (i),
(iii), or (iv) of this Section or a director whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such term is used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the Board) 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
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directors at the beginning of the two-year period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at least a majority of the Board;
(iii) Upon a merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the combined voting
power of the voting securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no person (other than
those covered by the exceptions in (i) above) acquires more than 50% of the combined voting power
of the Company’s then outstanding securities shall not constitute a Change in Control of the
Company; or.
(iv) Upon approval by the stockholders of the Company of a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or substantially all of
the Company’s assets other than the sale or disposition of all or substantially all of the assets
of the Company to a person or persons who beneficially own, directly or indirectly, at least 50% or
more of the combined voting power of the outstanding voting securities of the Company at the time
of the sale.
(g) “Corporate Status” describes a person who is or was serving as a director,
officer, employee or agent of the Company or, at the request of the Company, as a director,
officer, employee, agent or trustee of any other Enterprise. References to “serving at the
request of the Company” shall include, without limitation, 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.
(h) “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.
(i) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(j) “Enterprise” means the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise.
(k) “Expenses” means all 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, including (without
limitation) attorneys’ fees and expenses, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, and delivery service fees. Expenses also include disbursements and 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, supersedes bond, or other
appeal bond or its equivalent.
(l) Reference to “fines” shall include any excise tax assessed with respect to any
employee benefit plan.
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(m) 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 a manner “not opposed to the best interests of the Company”.
(n) References “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, as applicable, that
authorizes or contemplates additional indemnification by agreement, or the corresponding provision
of any amendment to or replacement of the DGCL, as applicable;
(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 [directors][officers]; and
(iii) with respect to the advancement of Expenses, to the fullest extent not prohibited by
Section 402 of the Xxxxxxxx-Xxxxx Act of 2002 or any successor provision of law.
(o) “Proceeding” means any Action in which Indemnitee was, is or will be involved (as
a party or otherwise) by reason of Indemnitee’s Corporate Status, or any action taken by him or of
any action on his part while acting in his Corporate Status, 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.
(p) “Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any matter material to any 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. “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 any of the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company shall pay the reasonable fees and expenses
of the Independent Counsel and 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.
3. THIRD-PARTY PROCEEDINGS. 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 against Indemnitee, the Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid
in settlement directly or indirectly incurred by or behalf of Indemnitee 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
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his conduct was unlawful.
4. PROCEEDINGS BY OR IN THE RIGHT OF A COMPANY. 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, the Company shall indemnify Indemnitee to the fullest extent permitted by
applicable law against all Expenses directly or indirectly incurred by or on behalf of Indemnitee
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 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.
5. PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
(a) Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by
applicable law:
(i) 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 directly or
indirectly incurred by or on behalf of Indemnitee in connection therewith.
(ii) If Indemnitee 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 directly or indirectly incurred by or on behalf of Indemnitee in connection with (x)
each successfully resolved claim, issue or matter and (y) each claim, issue, or matter related to
any claim, issue or matter on which the Indemnitee was successful.
(b) 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.
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6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of
this Agreement, to the fullest extent permitted by applicable law, the Company shall indemnify
Indemnitee against all Expenses directly or indirectly incurred by or on behalf of Indemnitee if,
by reason of his Corporate Status, Indemnitee is a witness in any Action to which Indemnitee is not
a party.
7. ADDITIONAL INDEMNIFICATION. 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 in connection with the Proceeding;
provided, that the Company shall have the right to consent to any settlement, which consent
shall not be unreasonably withheld.
8. EXCLUSIONS. The Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Parent within the meaning of Section 16(b) of the Exchange Act, or
similar provisions of other federal or state statutory law or common law; or
(b) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
unless (i) such indemnification is expressly required to be made by applicable law; (ii) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its initiation; or (iii) the
Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the
Company to the fullest extent permitted by applicable law.
9. ADVANCES OF EXPENSES. Notwithstanding any provision of this Agreement, to the
fullest extent permitted by applicable law, the Company shall advance the Expenses incurred by or
on behalf of Indemnitee in connection with any Proceeding 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, and made without regard to Indemnitee’s ability to repay the expenses or ultimate entitlement
to indemnification under the other provisions of this Agreement. Advances shall include 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 solely upon the execution and delivery to the
Company of an undertaking 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.
10. PROCEDURE FOR NOTIFICATION AND DEFENSE OF CLAIM.
(a) Within 30 days after service of process of Indemnitee relating to notice of the
commencement of any Proceeding, Indemnitee shall submit to the Company a written request, including
such documentation and information as is reasonably available to Indemnitee
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and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The failure to notify the Company within such period will not relieve the Company
from any liability that it may have to Indemnitee (i) under this Agreement except to the extent the
failure adversely affects the Company’ rights, legal position, ability to defend or ability to
obtain insurance coverage with respect to such Proceeding or (ii) otherwise than under this
Agreement. The Secretary of the Company shall advise the Board in writing within 72 hours after
receipt of such a request for indemnification.
(b) If the Company shall be obligated to pay the Expenses in connection with any Proceeding
against the Indemnitee, the Company shall be entitled to assume and control the defense of such
Proceeding (with counsel consented to by the Indemnitee, which consent shall not be unreasonably
withheld), upon the delivery to the Indemnitee of written notice of its election so to do. After
delivery of such notice, consent to such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for
any fees of separate counsel subsequently incurred by the Indemnitee with respect to the same
Proceeding, provided that the reasonable fees and expenses of Indemnitee’s counsel shall be
at the expense of the Company if:
(i) the employment of separate counsel by the Indemnitee has been previously authorized by the
Company;
(ii) the Indemnitee or counsel selected by the Company shall have concluded that there may be
a conflict of interest between the Company and the Indemnitee or among Indemnitees jointly
represented in the conduct of any such defense; or
(iii) the Company shall not, in fact, have employed counsel, to which Indemnitee has consented
as aforesaid, to assume the defense of such Proceeding.
(c) The Company may participate in the Proceeding at its own expense. The Company will not,
without prior written consent of the Indemnitee, effect any settlement of a claim in any threatened
or pending Proceeding unless such settlement solely involves the payment of money and includes an
unconditional release of the Indemnitee from all liability on any claims that are or were
threatened to be made against the Indemnitee in the Proceeding.
11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
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 has 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 has not occurred,
(A) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board,
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(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.
If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall
be made within 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 that is not privileged
or otherwise protected from disclosure and reasonably available to Indemnitee and reasonably
necessary to such determination. Any Expenses 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) If the determination of entitlement to indemnification is to be made by Independent
Counsel, the Independent Counsel shall be selected as follows:
(i) 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.
(ii) If a Change in Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless he 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 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, 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 20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition a court of competent
jurisdiction for
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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).
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 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 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.
(b) Neither the failure of the Company (including by its directors or Independent 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
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.
(c) If the person, persons or entity empowered or selected to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within 60 days after receipt by the
Company of the request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent
a prohibition of such indemnification under applicable law; provided, that
(i) such 60-day period may be extended for a reasonable time, not to exceed an additional 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
(ii) the provisions of this Section 12(c) shall not apply (1) 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 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 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is called within 15 days
after such receipt for the purpose of making such determination, such meeting is held for such
purpose within 60 days after having been so called and such
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determination is made thereat, or (2) if the determination of entitlement to indemnification
is made by Independent Counsel pursuant to Section 11(a) of this Agreement.
(d) The termination of a 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 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.
(e) 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(e)
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.
(f) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of any Enterprise shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.
13. REMEDIES OF INDEMNITEE.
(a) If
(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 60 days (or, if Section 12(c)(ii) shall apply, 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 10 days after receipt by the Company of a written request
therefor, or
(v) payment of indemnification pursuant to Section 3, 4 or 7 of this Agreement is not made
within 10 days after a determination has been made that Indemnitee is entitled to indemnification,
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Indemnitee shall be entitled to an adjudication by a court of his entitlement to such
indemnification or advancement of Expenses, as the case may be. 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. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) If 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 a prohibition of
such indemnification under applicable law.
(d) The Company shall 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. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within 10
days after receipt by the Company of a written request therefor), to the fullest extent permitted
by applicable law, advance 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.
14. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; SUBROGATION.
(a) The rights 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 Certificate of
Incorporation, the Bylaws, 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 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 Bylaws 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
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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 other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which
such person serves at the request of the Company, Indemnitee shall be an insured under 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. The Company shall
promptly notify Indemnitee of any material change in any such policy. The Company may, but will not
be required to, create a trust fund, grant a security interest or use other means, including,
without limitation, a letter of credit, to ensure the payment of such amounts as may be necessary
to satisfy the obligations to indemnify and advance Expenses pursuant to this Agreement. 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 and Indemnitee shall mutually cooperate and take all reasonable
actions to cause such insurers to pay on behalf of the insureds, all amounts payable as a result of
such proceeding in accordance with the terms of all applicable policies.
(c) The Company shall be subrogated to the extent of any payment under this Agreement 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 shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy, the
Certificate of Incorporation, the Bylaws, contract, agreement or otherwise.
(e) The Company’ obligation to indemnify or advance Expenses hereunder to Indemnitee who is or
was serving at the request of the Company as a director, officer, employee or agent of any
Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or
advancement of expenses from such other Enterprise.
15. DURATION OF AGREEMENT, SUCCESSORS AND ASSIGNS. This Agreement shall continue
until and terminate upon the later of: (a) ten years after Indemnitee has ceased to occupy any
positions or have any relationships described in Section 1 of this Agreement; and (b) the final
termination of all Actions pending or threatened during such period to which Indemnitee may be
subject by reason of Indemnitee’s Corporate Status or by reason of anything done or not done by
Indemnitee in any such capacity. This Agreement shall be binding upon each of the Company and its
successors and assigns and shall inure to the benefit of and be enforceable by Indemnitee and his
personal and legal representatives, heirs, executors, administrators, distributees, legatees and
other successors.
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16. SEVERABILITY. If any provision or provisions of this Agreement or any application
of any provision hereof 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.
17. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby to induce Indemnitee to serve as a [director][officer]
of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a [director][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,
that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the
Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder.
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.
19. NOTICE BY INDEMNITEE. Indemnitee agrees to promptly 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.
20. NOTICES. Any notices or other communications required or permitted under, or
otherwise in connection with this Agreement, shall be in writing and shall be deemed to have been
duly given when delivered in person or upon confirmation of receipt when transmitted by facsimile
transmission (but only if followed by transmittal by national overnight courier or hand delivery on
the next business day) or on receipt after dispatch by registered or certified mail, postage
prepaid, addressed, or on the next business day if transmitted by national overnight courier, in
each case as follows: (i) if to the Company, directed to the Chief Executive Officer
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at his principal place of business; and (ii) if to the Indemnitee, to such address as set
forth below his name on the signature page to this Agreement; or such other persons or addresses as
shall be furnished in writing by the Indemnitee to the Company.
21. CONTRIBUTION. To the fullest extent permissible by 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).
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 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) appoint, to the extent such party is not
otherwise subject to service of process in the State of Delaware, irrevocably Corporation Service
Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 as its agent in the State of
Delaware as such party’s agent for acceptance of legal process
in connection with any such action or proceeding against such party with the same legal force and
validity as if served upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v)
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.
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.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include usage of
the feminine pronoun where appropriate. The headings of the sections 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.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| GLOBAL CONSUMER ACQUISITION CORP. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [Director/Officer] | ||||
