Exhibit 10.43
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement"), dated as of the day of
2001, is made between GENERAL MARITIME SHIP HOLDINGS LTD., a Xxxxxxxx Islands
corporation (to be renamed General Maritime Corporation) (the "Indemnitor") and
OCM AJAX INVESTMENTS, INC., OCM PRINCIPAL OPPORTUNITIES FUND, L.P., OAKTREE
CAPITAL MANAGEMENT, LLC AND XXXXXXX X. XXXXXX, individually, or such other
representative designated by Oaktree Capital Management, LLC to the IPO
Committee (as defined below) from time to time (each individually and
collectively referred to herein as the "Indemnitee").
RECITALS
In accordance with that certain Plan of Recapitalization attached as
Annex A to those several Contribution Agreements by and between the Indemnitor
and the parties named therein, dated as of May , 2001, Xxxxxxx X. Xxxxxx, or
such other representative designated by Oaktree Capital Management, LLC, has
been named to serve on the IPO pricing committee (the "IPO Committee"), and the
Indemnitee is willing to perform such services, provided the Indemnitee is
indemnified, subject to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Indemnitor and the Indemnitee agree as follows:
AGREEMENT
SECTION 1. INDEMNIFICATION IN PROCEEDINGS.
1.1 INDEMNITOR OBLIGATIONS. The Indemnitor shall indemnify, defend and
hold harmless the Indemnitee from and against any and all losses, claims,
damages (including incidental and consequential damages), expenses (including
reasonable attorneys' fees), judgments, penalties, fines, settlements, and all
other liabilities incurred or paid by Indemnitee (collectively, "Losses") in
connection with the investigation, defense, prosecution, settlement or appeal of
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and to which the Indemnitee was or is
a party or is threatened to be made a party by reason of or arising out of
Indemnitee being named to serve on
the IPO Committee or by reason of or arising out of Indemnitee serving on
such IPO Committee. The Indemnitor shall also be solely responsible for
paying (i) all expenses incurred by the Indemnitee to enforce this Agreement,
and (ii) all costs of defending any suits or proceedings challenging payments
to the Indemnitee under this Agreement.
1.2 CONTRIBUTION. If for any reason the foregoing indemnification is
unavailable to the Indemnitee or insufficient to hold it harmless, then the
Indemnitor shall contribute to the amount paid or payable by the Indemnitor as a
result of such Loss in such proportion as is appropriate to reflect not only the
relative benefits received by the Indemnitee on the one hand and the Indemnitor
on the other hand, but also the relative fault of the Indemnitor on the one
hand, and the Indemnitee on the other hand, as well as any relevant equitable
considerations.
SECTION 2. PROCEDURES FOR INDEMNIFICATION/NOTICE OF CLAIMS.
2.1 PROCEDURES FOR INDEMNIFICATION/NOTICE OF CLAIMS. The Indemnitee
shall give written notice to the Indemnitor of any liability which might give
rise to a claim for indemnity under this Agreement within ten (10) calendar
days of the receipt of any written claim; provided, however, that any failure
to give such notice will not waive any rights of the Indemnitee except to the
extent the rights of the Indemnitor are finally determined by a court of
competent jurisdiction beyond any review or appeal to have been materially
prejudiced. Such notice shall set forth in reasonable detail the nature and
basis of such third party claim and the amount thereof, to the extent known,
and shall be accompanied by copies of any written demand, summons, complaint
or other pleading which may have been served in connection therewith. The
Indemnitor shall notify the Indemnitee in writing within ten (10) calendar
days after Indemnitee has given notice of the matter that the Indemnitor is
assuming the defense thereof and acknowledge in writing that the Indemnitor
is fully responsible to indemnify, defend and hold harmless Indemnitee from
and against all damages related to such claim, and further: (a) the
Indemnitor will defend the Indemnitee against the matter with counsel of
Indemnitor's own choice (which counsel shall be reasonably acceptable to the
Indemnitee) and shall control the defense of any such action or matter; (b)
the Indemnitee may retain separate co-counsel at its sole cost and expense
(except that the Indemnitor will be responsible for the fees and expenses of
separate counsel to the extent the Indemnitee reasonably concludes that the
counsel the Indemnitor has selected is also represent-
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ing Indemnitor and has a conflict of interest or separate and different
defenses, in which case, if the Indemnitee notifies the Indemnitor in writing
that such Indemnitee elects to employ separate counsel at the expense of the
Indemnitor, the Indemnitor shall not have the right to assume the defense of
such claim on behalf of the Indemnitee); and (c) the Indemnitor will not
consent to the entry of judgment or enter into any settlement with respect to
any matter without the written consent of the Indemnitee and unless the terms
thereof include as an unconditional term thereof the giving by the claimant
or plaintiff to the Indemnitee the written release from all liability in
respect of such claim or litigation, of the Indemnitee (which consent shall
not be unreasonably withheld ) or delayed). The parties shall cooperate as
reasonably requested to ensure the proper and adequate defense and settlement
thereof.
2.2 TIMING OF PAYMENTS. All payments of Losses by the Indemnitor to the
Indemnitee pursuant to this Agreement shall be made to the fullest extent
permitted by law as soon as practicable after written demand by the
Indemnitee is presented to the Indemnitor, but in no event later than thirty
(30) calendar days after such written demand by the Indemnitee is presented
to the Indemnitor.
SECTION 3. MISCELLANEOUS.
3.1 NOTICE. Any notices, demands or other communication given in
connection herewith shall be in writing and be deemed given when (i) personally
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delivered, (ii) sent by facsimile transmission and a confirmation receipt is
simultaneously generated by the sender, followed by mailing by regular mail or
(iii) delivered by a recognized overnight courier, such as FedEx, and addressed
or sent, as the case may be, to the address or facsimile number set forth below
or to such other address or facsimile number as such party may designate in
accordance herewith:
When the Indemnitor is the intended recipient:
General Maritime Ship Holdings Ltd.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
When any Indemnitee is the intended recipient:
Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx and B. Xxxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
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3.2 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the parties and supersedes all prior understanding, whether written or oral,
between the parties with respect to the subject matter of this Agreement.
3.3 SEVERABILITY OF PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid, or unenforceable provision there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid, and enforceable.
3.4 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAWS.
3.5 EXECUTION IN COUNTERPARTS. This Agreement and any amendment may be
executed simultaneously or in counterparts, each of which together shall
constitute one and the same instrument.
3.6 AMENDMENT. No amendment, modification or alteration of the terms of
this Agreement shall be binding unless in writing, dated subsequent to the date
of this Agreement, and executed by the parties hereto.
3.7 BINDING EFFECT. The obligations of the Indemnitor to the Indemnitee
hereunder shall survive and continue as to the Indemnitee even if the Indemnitee
ceases to be a representative on the IPO Committee. Each and all of the
covenants, terms and provision of this Agreement shall be binding upon and inure
to the benefit of the successors to the Indemnitor and, upon the death of the
Indemnitee, to the benefit of the estate, heirs, executors, administrators and
personal representatives of the Indemnitee's estate.
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3.8 NONEXCLUSIVITY. The rights of indemnification and reimbursement
provided in this Agreement shall be in addition to any rights to which the
Indemnitee may otherwise be entitled by statute, agreement or otherwise.
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EXECUTED AS OF THE DATE FIRST ABOVE WRITTEN.
THE INDEMNITOR:
GENERAL MARITIME SHIP
HOLDINGS LTD.
By:
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Name:
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Title:
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THE INDEMNITEE:
XXXXXXX X. XXXXXX
By:
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OAKTREE CAPITAL MANAGEMENT, LLC
By:
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Name:
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Title:
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OCM AJAX INVESTMENTS, INC.
By:
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Name:
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Title:
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OCM PRINCIPAL OPPORTUNITIES
FUND, L.P.
By: Oaktree Capital Management, LLC
its general partner
By:
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Name:
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Title:
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