EXHIBIT 10.52
[DATE]
[NAME AND ADDRESS]
Dear :
This letter will confirm the agreement and understanding
between Global Marine Inc. (the "Company") and you regarding
indemnification in connection with your service as a director,
officer, employee or agent of the Company.
It is and has been the policy of the Company to indemnify its
officers and directors and certain employees and agents against any
costs, expenses and other liabilities to which they may become
subject by reason of their service to the Company, and to insure
them against such liabilities, as and to the extent available at a
commercially reasonable rate, permitted by applicable law and in
accordance with the principles of good corporate governance. In
this regard, the Company's By-laws (Section III-11) require that
the Company indemnify and advance costs and expenses to
(collectively "indemnify") its directors and officers, in each case
including indemnity in respect of service at the request of the
Company as a director or officer of an affiliate, and provide that
the Company may indemnify its employees and agents, as permitted by
Delaware law. A copy of the relevant provisions of the Company's
By-laws, as currently in effect, are attached hereto.
In consideration of your service to the Company, the Company
shall indemnify you, and hereby confirms its agreement to indemnify
you, to the full extent provided by applicable law and the By-laws
of the Company as currently in effect. In particular, as provided
by the By-laws, the Company shall make any necessary determination
as to your entitlement to indemnification in respect of any
liability within 60 days of receiving a written request from you
for indemnification against such liability. You have agreed to
provide the Company with such information or documentation as the
Company may reasonably request to evidence the liabilities against
which indemnification is sought or as may be necessary to permit
the Company to submit a claim in respect thereof under any
applicable directors and officers liability insurance or other
liability insurance policy. You have further agreed to cooperate
with the Company in the making of any determination regarding your
entitlement to indemnification. If the Company does not make a
determination within the required 60-day period, a favorable
determination will be deemed to be made, and you shall be entitled
to payment, subject only to your written agreement to refund such
payment if a contrary determination is later made. In the event
the Company shall determine that you are not entitled to
indemnification, the Company shall give you written notice thereof
specifying the reason therefor, including any determinations of
fact or conclusions of law relied upon in reaching such
determination. Notwithstanding any determination made by the
Company that you are not entitled to indemnification, you shall be
entitled to seek a de novo judicial determination of your right to
indemnification under the By-laws, this Agreement or otherwise by
commencing an appropriate action therefor within 180 days after the
Company shall notify you of its determination. The Company shall
not oppose any such action by reason of any prior determination
made by it as to your right to indemnification or, except in good
faith, raise any objection not specifically relating to the merits
of your indemnification claim or not considered by the Company in
making its own determination. In any such proceeding, the Company
shall bear the burden of proof in showing that your conduct did not
meet the applicable standard of conduct required by the By-laws or
applicable law for indemnification. It is understood that, as
provided in Section III-11 of the By-laws, any expenses incurred by
you in any investigation or proceeding by the Company or before any
court commenced for the purpose of making any such determination
shall be reimbursed by the Company. No future amendment of the By-
laws shall diminish your rights under this Agreement, unless you
shall have consented to such amendment.
Your right to indemnification as aforesaid shall be in
addition to any right to remuneration to which you may from time to
time be entitled as a director, officer, employee or agent of the
Company.
It is understood and agreed that your right to indemnification
shall not entitle you to continue in your present position with the
Company or any future position to which you may be appointed or
elected and that you shall be entitled to indemnification under the
By-laws only in respect to liabilities arising out of acts or
omissions or alleged acts or omissions by you as a director,
officer, employee or agent or as otherwise provided by the By-laws,
but you shall be entitled to such indemnification with respect to
any such liability, whether incurred or arising during or after
your service as a director, officer, employee or agent and whether
before or after the date of this letter, in respect of any claim,
cause, action, proceeding or investigation, whether commenced,
accruing or arising during or after your service as a director,
officer, employee or agent and whether before or after the date of
this letter.
This Agreement shall terminate upon the later of (i) the tenth
anniversary of the date on which you shall cease to be a director,
officer, employee or agent of the Company or (ii) the final
termination or resolution of all actions, suits, proceedings or
investigations commenced within such ten-year period and relating
to the Company or any of its affiliates or your services thereto to
which you may be or become a party and of all claims for
indemnifications by you under this Agreement asserted within such
ten-year period.
It is understood and agreed that this Agreement is binding
upon the Company and its successors and shall inure to your benefit
and that of your heirs, distributees and legal representatives. If
any provisions of this Agreement shall be deemed by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the
balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and
circumstances. This Agreement, and the interpretation and
enforcement thereof, shall be governed by the laws of the state of
Delaware. In confirmation of the provisions of the Company's By-
laws, the Company hereby agrees to pay, and you shall be held
harmless from and indemnified against, any costs and expenses
(including attorneys' fees) which you may reasonably incur in
connection with any challenge to the validity of, or the
performance and enforcement of, this Agreement, in the same manner
as provided by the Company's By-laws.
If the foregoing is in accordance with your understanding of
our agreement, kindly countersign the enclosed copy of this letter,
whereupon this letter shall become a binding agreement in
accordance with the laws of the state of Delaware.
GLOBAL MARINE INC.
By: ___________________________________
[OFFICER]
_______________________________
[NAME]
GLOBAL MARINE INC.
BY-LAW REGARDING INDEMNIFICATION
SECTION III-11 INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS: (a)(i) The corporation, to the full extent
permitted, and in the manner required by the laws of the state of
Delaware, as in effect at the time of the adoption of this revised
Section III-11 or as such laws may be amended from time to time,
shall indemnify any person who was or is made a party to or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (including any appeal
thereof), whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a director or officer
of the corporation, or, if at a time when he was a director or
officer of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, fiduciary,
employee or agent (a "Subsidiary Officer") of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Affiliated Entity"), against expenses (including
attorneys' fees), costs, judgments, fines, penalties and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interest of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful;
provided, however, that the corporation shall not be obligated to
indemnify against any amount paid in settlement unless the
corporation has consented to such settlement, which consent shall
not be unreasonably withheld. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, that such person had
reasonable cause to believe that his conduct was unlawful.
Notwithstanding anything to the contrary in the foregoing
provisions of this subparagraph (i) and except for any action, suit
or proceeding brought on behalf of a person to enforce the right to
indemnification hereunder or otherwise, a person shall not be
entitled, as a matter of right, to indemnification pursuant to this
subparagraph (i) against costs or expenses incurred in connection
with any action, suit or proceeding commenced by such person
against any person who is or was a director, officer, fiduciary,
employee or agent of the corporation or a Subsidiary Officer of an
Affiliated Entity, but such indemnification may be provided by the
corporation in any specific case as permitted by paragraph (f) of
this Section III-11.
(ii) The corporation may indemnify any employee or agent of
the corporation in the manner and to the extent that it shall
indemnify any director or officer under this paragraph (a),
including indemnity in respect of service at the request of the
corporation as a Subsidiary Officer of an Affiliated Entity.
(b)(i) The corporation, to the full extent permitted, and in
the manner required by the laws of the state of Delaware, as in
effect at the time of the adoption of this Section III-11 or as
such laws may be amended from time to time, shall indemnify any
person who was or is made a party to or is threatened to be made a
party to any threatened, pending or completed action or suit
(including any appeal thereof) brought in the right of the
corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director or officer of the
corporation, or, if at a time when he was a director or officer of
the corporation, is or was serving at the request of the
corporation as a Subsidiary Officer of an Affiliated Entity,
against expenses (including attorneys' fees) and costs actually and
reasonably incurred by such person in connection with such action
or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation
unless, and except to the extent that, the Court of Chancery of the
state of Delaware or the court in which such judgment was rendered
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses and costs as the Court of Chancery of the state of
Delaware or such other court shall deem proper. Notwithstanding
anything to the contrary in the foregoing provisions of this
subparagraph (b)(i), a person shall not be entitled, as a matter of
right, to indemnification pursuant to this subparagraph (b)(i)
against costs and expenses incurred in connection with any action
or suit in the right of the corporation commenced by such person,
but such indemnification may be provided by the corporation in any
specific case as permitted by paragraph (f) of this Section III-11.
(ii) The corporation may indemnify any employee or agent of
the corporation in the manner and to the extent that it shall
indemnify any director or officer under this paragraph (b),
including indemnity in respect of service at the request of the
corporation as a Subsidiary Officer of an Affiliated Entity.
(c) Any indemnification under paragraph (a) or (b) of this
Section III-11 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper under the circumstances because such
person has met the applicable standard of conduct set forth in
paragraph (a) or (b) of this Section III-11. Such determination
shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the
action, suit or proceeding in respect of which indemnification is
sought or by majority vote of the members of a committee of the
Board of Directors composed of at least three members each of whom
is not a party to such action, suit or proceeding, or (ii) if such
a quorum is not obtainable and/or such a committee is not
established or obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, or (iii) by the stockholders. In the event a
request for indemnification is made by any person referred to in
subparagraph (i) of paragraph (a) or subparagraph (i) of paragraph
(b), the corporation shall cause such determination to be made not
later than 60 days after such request is made.
(d)(i) Notwithstanding the other provisions of this Section
III-11, to the extent that a director, officer, employee or agent
of the corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
paragraph (a) or (b) of this Section III-11, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) and costs actually and
reasonably incurred by such person in connection therewith.
(ii) To the extent any person who is or was a director or
officer of the corporation has served or prepared to serve as a
witness in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, or in any investigation by the
corporation or the Board of Directors thereof or a committee
thereof or by any securities exchange on which securities of the
corporation are or were listed or any national securities
association, by reason of his services as a director or officer of
the corporation or, if at a time when he was a director or officer
of the corporation, is or was serving at the request of the
corporation as a Subsidiary Officer of an Affiliated Entity, the
corporation shall indemnify such person against expenses (including
attorney's fees) and costs actually and reasonably incurred by such
person in connection therewith within 30 days after the receipt by
the corporation from such person of a statement requesting such
indemnification, averring such service and reasonably evidencing
such expenses and costs. The corporation may indemnify any
employee or agent of the corporation to the same extent it is
required to indemnify any director or officer of the corporation
pursuant to the foregoing sentence of this paragraph.
(e)(i) Expenses and costs incurred by any person referred to
in subparagraph (i) of paragraph (a) or subparagraph (i) of
paragraph (b) of this Section III-11 in defending a civil,
criminal, administrative or investigative action, suit or
proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation as authorized by this Section
III-11.
(ii) Expenses and costs incurred by any person referred to in
subparagraph (ii) of paragraph (a) or subparagraph (ii) of
paragraph (b) of this Section III-11 in defending a civil,
criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the
Board of Directors, a committee thereof or an officer of the
corporation or a committee thereof authorized to so act by the
Board of Directors upon receipt of an undertaking by or on behalf
of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by
the corporation as authorized by this Section III-11.
(f) The provision of indemnification to or the advancement of
expenses and costs to any person under this Section III-11, or the
entitlement of any person to indemnification or advancement of
expenses and costs under this Section III-11, shall not limit or
restrict in any way the power of the corporation to indemnify or
advance expenses and costs to such person in any other way
permitted by law or be deemed exclusive of any right to which any
person seeking indemnification or advancement of expenses and costs
may be entitled under any law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such
person's capacity as an officer, director, employee or agent of the
corporation and as to action in any other capacity while holding
any such position.
(g) The indemnification provided or permitted under this
Section III-11 shall apply in respect of any expense, costs,
judgment, fine, penalty or amount paid in settlement, whether or
not the claim or cause of action in respect thereof accrued or
arose before or after the effective date of this revised Section
III-11. The right of any person who is or was a director, officer,
employee or agent of the corporation to indemnification and advance
payment of expenses and costs under this Section III-11 shall
continue after he shall have ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
distributees, executors, administrators and other legal
representatives of such person.
(h) This Section III-11 shall be deemed to create a binding
obligation on the part of the corporation to its current and former
officers and directors and their heirs, distributees, executors,
administrators and other legal representatives, and each director
or officer in acting in such capacity shall be entitled to rely on
the provisions of this Section III-11, without giving notice
thereof to the corporation.
(i) The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a Subsidiary Officer of any Affiliated Entity,
against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the power
to indemnify such person against such liability under the
provisions of this Section III-11 or applicable law.
(j)(i) For purposes of this Section III-11, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its corporate existence had continued, would have been permitted
under applicable law to indemnify its directors, officers,
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
Subsidiary Officer of any Affiliated Entity, shall stand in the
same position under the provisions of this Section III-11 with
respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its
separate existence had continued.
(ii) For purposes of this Section III-11, references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; references to "serving at the
request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation 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 such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed
to the best interest of the corporation" as referred to in this
Section III-11.
