DIRECTOR INDEMNIFICATION AGREEMENT
Exhibit 10.10
This Agreement made and entered into [___], 2009 (“Agreement”), by and between GAIN
Capital Holdings, Inc., a Delaware corporation (the “Company”) and [___] (the “Indemnitee”).
WHEREAS, it is essential to the Company that it be able to retain and attract as directors the
most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of directors and officers liability insurance
have made it increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of any such by-laws or any change in the
ownership of the Company or the composition of its Board of Directors); and
WHEREAS, the Company and Indemnitee desire to enter into this Agreement in order for
Indemnitee to rely upon the rights afforded under this Agreement in accepting and continuing in
Indemnitee’s position as a director of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a
director of the Company, including as a member of any committee thereof, (ii) in any capacity with
respect to any employee benefit plan of the Company, or (iii) as a director, manager, partner,
trustee, officer, employee, or agent of any other Entity at the request of the Company. For
purposes of subsection (iii) of this Section 1(a), an officer or director of the Company who is
serving or has served as a director, manager, partner, trustee, officer, employee or agent of a
Subsidiary (as defined below) shall be deemed to be serving at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity.
(c) “Expenses” shall mean all fees, costs and expenses incurred in connection with any
Proceeding (as defined below) and any taxes arising in connection therewith, including, without
limitation, reasonable attorneys’ fees, disbursements and retainers (including, without limitation,
any such fees, disbursements and retainers incurred by Indemnitee pursuant to Sections 9 and 11(c)
of this Agreement), reasonable fees and disbursements of expert witnesses, private investigators
and professional advisors (including, without limitation, accountants and
investment bankers), court costs, transcript costs, reasonable fees of experts, reasonable
travel expenses, duplicating, printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services and other disbursements and expenses.
(d) “Indemnifiable Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall
have the meanings ascribed to those terms in Section 3(a) below.
(e) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f) “Proceeding” shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by Indemnitee pursuant to Section 11
of this Agreement to enforce Indemnitee’s rights hereunder.
(g) “Subsidiary” shall mean any corporation, partnership, limited liability company, joint
venture, trust or other Entity of which the Company owns (either directly or through or together
with another Subsidiary of the Company) either (i) a general partner, managing member or other
similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interest
of such Entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity
interest of such Entity.
2. Services of Indemnitee. This Agreement shall not be deemed to constitute an agreement of
employment nor shall it impose any obligation on Indemnitee or the Company to continue Indemnitee’s
service to the Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a) below, if Indemnitee was or is a party
or is threatened to be made a party to any Proceeding (other than an action by or in the right of
the Company) by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the
Company against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such
Proceeding (referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable Amounts”).
(b) To the extent permitted by applicable law and subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company to procure a judgment in its favor by reason of
Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
(c) To the extent permitted by applicable law, if Indemnitee was or is called as an expert
witness to any Proceeding in which the Company is a party or which is otherwise related to the
Company’s business to which the Indemnitee is not a party, Indemnitee shall be
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indemnified by the Company against all Expenses incurred by Indemnitee in connection with such
Proceeding.
4. Exceptions to Indemnification. Indemnitee shall be entitled to indemnification under Sections
3(a) and 3(b) above in all circumstances other than the following:
(a) If indemnification is requested under Section 3(a) and it has been adjudicated finally by
a court of competent jurisdiction that, in connection with the subject of the Proceeding out of
which the claim for indemnification has arisen, Indemnitee failed to act (i) in good faith and (ii)
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim for indemnification has
arisen, Indemnitee failed to act (A) in good faith and (B) in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court of competent jurisdiction that
Indemnitee is liable to the Company with respect to any claim, issue or matter involved in
the Proceeding out of which the claim for indemnification has arisen, including, without
limitation, a claim that Indemnitee received an improper personal benefit, no Indemnifiable
Expenses shall be paid with respect to such claim, issue or matter unless the court of law
or another court in which such 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 indemnity for such Indemnifiable Expenses
which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim. The Company shall pay such Indemnifiable
Amounts to Indemnitee within ten (10) calendar days of receipt of the request. At the request of
the Company, Indemnitee shall furnish such documentation and information as are reasonably
available to Indemnitee and necessary to establish that Indemnitee is entitled to indemnification
hereunder.
6. Notification and Defense of Proceedings. If any Proceeding is brought against Indemnitee in
respect of which indemnity may be sought under this Agreement:
(a) Indemnitee will promptly notify the Company in writing of the commencement thereof, and
the Company and any other indemnifying party similarly notified will be entitled to
participate therein at its own expense or to assume the defense thereof and to engage counsel
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reasonably satisfactory to Indemnitee; provided, however, that the failure to give any such notice
shall not disqualify Indemnitee from indemnification hereunder unless the Company’s ability to
defend against such Proceeding is materially and adversely prejudiced thereby. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the address shown in
Section 21 of this Agreement (or such other address as the Company shall designate in writing to
Indemnitee pursuant to Section 21). Notice shall be deemed received three (3) business days after
the date postmarked if sent by domestic certified or registered mail, properly addressed; otherwise
notice shall be deemed received when such notice shall actually be received by the Company.
Indemnitee shall have the right to engage his or her own counsel in connection with any such
Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of Indemnitee unless (i) the Company shall not have assumed the defense of
the Proceeding and employed counsel for such defense, or (ii) the named parties to any such action
(including any impleaded parties) include both Indemnitee and the Company, and Indemnitee shall
have reasonably concluded that joint representation is inappropriate under applicable standards of
professional conduct due to a material conflict of interest between Indemnitee and the Company, in
either of which events the reasonable fees and expenses of such counsel to Indemnitee shall be
borne by the Company, subject to Section 9.
(b) The Company shall not be liable to indemnify Indemnitee for any amounts paid in settlement
of any Proceeding effected without the Company’s written consent, and the Company shall not settle
any Proceeding in a manner which would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent; provided, however, that neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement; and provided further, that if a
Proceeding is settled by Indemnitee with the Company’s written consent, or if there be a final
judgment or decree for the plaintiff in connection with the Proceeding by a court of competent
jurisdiction, the Company shall indemnify and hold harmless Indemnitee from and against any and all
Indemnifiable Losses incurred by reason of such settlement or judgment. The Company shall not,
without the prior written consent of Indemnitee, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of the Proceeding, which release shall be in form and
substance reasonably satisfactory to Indemnitee.
7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any
other provision of this Agreement, and without limiting any such provision, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is successful, on the
merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against all Expenses
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with each successfully resolved claim, issue or matter. For purposes of this
Agreement, 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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8. Effect of Certain Resolutions. Neither the settlement nor termination of any Proceeding nor the
failure of the Company to award indemnification or to determine that indemnification is payable
shall create an adverse presumption that Indemnitee is not entitled to indemnification hereunder.
In addition, the termination of any Proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent shall not create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal action or proceeding, had
reasonable cause to believe that Indemnitee’s action was unlawful.
9. Agreement to Advance Expenses; Conditions. The Company shall pay to Indemnitee all
Indemnifiable Expenses incurred by Indemnitee in connection with any Proceeding, including a
Proceeding by or in the right of the Company, in advance of the final disposition of such
Proceeding, as the same are incurred. To the extent required by Delaware law, Indemnitee hereby
undertakes to repay the amount of Indemnifiable Expenses paid to Indemnitee if it is finally
determined by a court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Indemnifiable Expenses. This undertaking is an
unlimited general obligation of Indemnitee.
10. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company a written
request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement under
Section 9 of this Agreement, together with documentation evidencing that Indemnitee has incurred
such Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 9 shall be made no
later than ten (10) calendar days after the Company’s receipt of such request and receipt of the
documentation described above.
11. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request for payment
of Indemnifiable Amounts under Sections 3 and 5 above or a request for an advancement of
Indemnifiable Expenses under Sections 9 and 10 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this Agreement, Indemnitee may petition a
court of law to enforce the Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 11(a) above,
the Company shall have the burden of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any Expenses
incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or
settling any action brought by Indemnitee under Section 11(a) above, or in connection with any
claim or counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from asserting in any
Proceeding, including, without limitation, an action under Section 11(a) above, that the
provisions of this Agreement are not valid, binding and enforceable or that there is
insufficient
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consideration for this Agreement and shall stipulate in court that the Company is
bound by all the provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 11(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
12. Representations and Warranties of the Company. The Company hereby represents and warrants to
Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter into, and
be bound by the terms of, this Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the Company in
accordance with the provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors’ rights generally.
13. Insurance.
(a) The Company shall, as promptly as practicable following the date hereof, obtain and
maintain directors and officers’ liability insurance coverage on terms reasonably satisfactory to
the Indemnitee of at least $5,000,000, covering, among other things, violations of federal or state
securities laws (and immediately prior to the consummation of an Initial Public Offering the level
of coverage shall be increased to at least $10,000,000). In all policies of director and officer
liability insurance, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably insured of the
Company’s officers and directors. As used herein, the term “Initial Public Offering” shall mean
the Company’s first firm commitment underwritten public offering of its Common Stock registered
under the Securities Act of 1933, as amended (or any similar successor federal statute and the
rules and regulations thereunder, all as the same shall be in effect from time to time) covering
the offer and sale by the Company of its common stock.
(b) If, at the time of the receipt of a notice of a Proceeding pursuant to Section 6(a) of
this Agreement, the Company has director and officers’ 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 Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of such policies.
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14. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and advancement
of Indemnifiable Expenses provided by this Agreement shall be in addition to, but not exclusive of,
any other rights which Indemnitee may have at any time under applicable law, the Company’s by-laws
or certificate of incorporation, any insurance policy purchased or maintained by the Indemnitee or
the Fund Indemnitors (as defined below) or any other agreement, vote of stockholders or directors
(or a committee of directors), or otherwise, both as to action in Indemnitee’s official capacity
and as to action in any other capacity as a result of Indemnitee’s serving as a director of the
Company.
15. Successors. This Agreement shall be (a) binding upon all successors and assigns of the Company
(including any transferee of all or a substantial portion of the business, stock and/or assets of
the Company and any direct or indirect successor by merger or consolidation or otherwise by
operation of law) and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement shall continue for the
benefit of Indemnitee and such heirs, personal representatives, executors and administrators after
Indemnitee has ceased to have Corporate Status.
16. Subrogation. In the event of any payment of Indemnifiable Amounts under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights of contribution or
recovery of Indemnitee against other persons, and Indemnitee shall take, at the request of the
Company, all reasonable action necessary to secure such rights, including the execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights. In no
event, however, shall the Company or any other person have any right of recovery, through
subrogation or otherwise, against (i) Indemnitee, (ii) the Fund Indemnitors, or (iii) any insurance
policy purchased or maintained by Indemnitee or the Fund Indemnitors.
17. Change in Law. To the extent that a change in Delaware law (whether by statute or judicial
decision) shall permit broader indemnification or advancement of expenses than is provided under
the terms of the by-laws of the Company and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such
extent. In the event of any change in Delaware law (whether by statute or judicial decision)
which narrows the right of a Delaware corporation to indemnify a member of its Board of Directors,
an officer, or other corporate agent, such changes, to the extent not otherwise required by
applicable law to be applied to this Agreement, shall have no effect on this Agreement or the
parties’ rights and obligations hereunder.
18. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision of this Agreement,
or any clause thereof, shall be determined by a court of competent jurisdiction to be illegal,
invalid or unenforceable, in whole or in part, such provision or clause shall be limited or
modified in its application to the minimum extent necessary to make such provision or clause valid,
legal and enforceable, and the remaining provisions and clauses of this Agreement shall remain
fully enforceable and binding on the parties.
19. Indemnitee as Plaintiff. Except as provided in Section 11(c) of this Agreement and in the next
sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or advancement of
Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee
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against the Company, any Entity which it controls, any director or officer thereof, or any third
party, unless such Company has consented to the initiation of such Proceeding. This Section shall
not apply to counterclaims or affirmative defenses asserted by Indemnitee in an action brought
against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17 above with respect to changes in
Delaware law that broaden the right of Indemnitee to be indemnified by the Company, no supplement,
modification or amendment of this Agreement shall be binding unless executed in writing by each of
the parties hereto. 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 (whether or not similar), nor shall
such waiver constitute a continuing waiver.
21. General Notices. All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand, (b) when
transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified or registered
mail with postage prepaid, on the third business day after the date on which it is so mailed:
If to Indemnitee, to:
[________]
[________]
[________]
[________]
[________]
[________]
[________]
If to the Company, to:
GAIN Capital Holdings, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
or to such other address as may have been furnished in the same manner by any party to the others.
21. Governing Law. This Agreement shall be governed by and construed and enforced under the laws
of the State of Delaware without giving effect to the provisions thereof relating to conflicts of
law.
22. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same instrument.
23. Primacy of Indemnification. The Company hereby acknowledges that Indemnitee has certain rights
to indemnification, advancement of expenses and/or insurance provided by investment funds managed
by entities referred to as “[___]” and their affiliates (collectively, the “Fund
Indemnitors”). The Company hereby agrees that it is the indemnitor of
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first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Fund
Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities
incurred by Indemnitee are secondary), and that the Company will not assert that the Indemnitee
must seek expense advancement or reimbursement, or indemnification, from any Fund Indemnitor before
the Company must perform its expense advancement and reimbursement, and indemnification
obligations, under this Agreement. No advancement or payment by the Fund Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the
Company shall affect the foregoing. The Fund Indemnitors shall be subrogated to the extent of such
advancement or payment to all of the rights of recovery which Indemnitee would have had against the
Company if the Fund Indemnitors had not advanced or paid any amount to or on behalf of Indemnitee.
If for any reason the a court of competent jurisdiction determines that the Fund Indemnitors are
not entitled to the subrogation rights described in the preceding sentence, the Fund Indemnitors
shall have a right of contribution by the Company to the Fund Indemnitors with respect to any
advance or payment by the Fund Indemnitors to or on behalf of the Indemnitee. The Company and
Indemnitee agree that each Fund Indemnitor is a third party beneficiary of this Agreement.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| GAIN CAPITAL HOLDINGS, INC. |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| INDEMNITEE |
||||
| [________] | ||||
[Signature Page to Director Indemnification Agreement]
