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Exhibit 10.1
INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of
,
between Gateway, Inc. , a Delaware corporation (the
"Company"), and
("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director and/or officer of the
Company;
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims being asserted against
directors and officers of public companies in today’s
environment;
WHEREAS, the Restated Certificate of Incorporation, as amended,
and the Amended and Restated Bylaws of the Company require the
Company to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by law and the Indemnitee
has been serving and continues to serve as a director and/or
officer of the Company in part in reliance on such Restated
Certificate of Incorporation, as amended, and Amended and Restated
Bylaws;
WHEREAS, uncertainties as to the availability of indemnification
created by recent court decisions have increased the risk that the
Company will be unable to retain and attract as directors and
officers the most capable persons available;
WHEREAS, the Board of Directors of the Company has determined
that the inability of the Company to retain and attract as
directors and officers the most capable persons would be
detrimental to the interests of the Company and that the Company
therefore should seek to assure such persons that indemnification
and insurance coverage will be available in the future;
WHEREAS, in recognition of Indemnitee’s need for
substantial protection against personal liability in order to
enhance Indemnitee’s continued service to the Company in an
effective manner, the increasing difficulty in obtaining
satisfactory director and officer liability insurance coverage, and
Indemnitee’s reliance on the Company’s Restated
Certificate of Incorporation, as amended, and Amended and Restated
Bylaws, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such Restated Certificate
of Incorporation, as amended, and Amended and Restated Bylaws will
be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Restated Certificate of
Incorporation, as amended, and Amended and Restated Bylaws or any
change in the composition of the Company’s Board of Directors
or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies;
NOW, THEREFORE, in consideration of the premises
and of Indemnitee continuing to serve the Company directly or, at
its request, another enterprise, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain Definitions . In addition to terms defined
elsewhere herein, the following terms have the following meanings
when used in this Agreement:
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(a)
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Change in Control : shall be deemed to
have occurred if the event set forth in any one of the following
paragraphs shall have occurred: (i) Any Person (as defined
below) is or becomes the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing a percentage of the combined
voting power of the Company’s then outstanding securities
that is at least equal to the greater of (x) 30% and
(y) the percentage of such combined voting power then owned by
Theodore Waitt and his affiliates and associates; or (I) the
following individuals cease for any reason to constitute a majority
of the number of directors then serving: individuals who, on the
date hereof, constitute the Board and any new director (other than
a director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or
nomination for election by the Company’s stockholders was
approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors on the date hereof or whose appointment, election or
nomination for election was previously so approved or recommended;
or (II) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with
any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) at least 50% of the
combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes
the beneficial owner, directly or indirectly, of securities of the
Company representing a percentage of the combined voting power of
the Company’s then outstanding securities that is at least
equal to the greater of (x) 30% and (y) the percentage of
such combined voting power then owned by Theodore Waitt and his
affiliates and associates; or (III) the stockholders of the Company
approve a plan
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of complete liquidation or dissolution of the
Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets, other than a sale or disposition by the
Company of all or substantially all of the Company’s assets
to an entity, at least 50% of the combined voting power of the
voting securities of which are owned by stockholders of the Company
in substantially the same proportions as their ownership of the
Company immediately prior to such sale.
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For purposes of this Section, "Person" shall have
the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) Theodore Waitt or any of his
affiliates or associates, (ii) the Company or any of its
subsidiaries, (iii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its Affiliates, (iv) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(v) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.
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(b)
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Claim : means any threatened, asserted,
pending or completed action, suit or proceeding, or appeal thereof,
or any inquiry or investigation, whether instituted by the Company
or any governmental agency or any other party, that Indemnitee in
good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other, including any arbitration
or other alternative dispute resolution mechanism.
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(c)
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Expenses : include attorneys’
fees and all other costs, expenses and obligations (including,
without limitation, experts’ fees, court costs, retainers,
transcript fees, duplicating, printing and binding costs, as well
as telecommunications, postage and courier charges) paid or
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to investigate, defend, be a witness in or participate in, any
Claim relating to any Indemnifiable Event.
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(d)
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Indemnifiable Amounts : means any
amounts, as determined on an after-tax basis, in respect of, any
and all Expenses, damages, judgments, fines, penalties, ERISA
excise taxes and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines,
penalties, excise taxes or amounts paid in settlement) arising out
of or resulting from any Claim relating to an Indemnifiable Event.
For the purpose of determining any
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particular Indemnifiable Amount hereunder, the
Company and the Indemnitee shall cooperate, in good faith, to
determine any increase in such Indemnifiable Amount to the extent
necessary to enable the Indemnitee to recover, on an after-tax
basis (taking into account any deductions that the Indemnitee may
claim in respect of the items subject to indemnification
hereunder), the amount that the Indemnitee would have recovered had
no taxes been imposed on the receipt of such Indemnifiable Amount
or portion thereof.
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(e)
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Indemnifiable Event : means any event
or occurrence, whether occurring before, on or after the date of
this Agreement, related to the fact that Indemnitee is or was a
director and/or officer or fiduciary of the Company, or is or was
serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation,
limited liability company, partnership, joint venture, employee
benefit plan, trust or other entity or enterprise, or by reason of
anything done or not done by Indemnitee in any such
capacity.
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(f)
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Independent Legal Counsel : means an
attorney or firm of attorneys, selected in accordance with the
provisions of Section 3 hereof, who is experienced in matters
of corporate law and who shall not have otherwise performed
services for the Company or Indemnitee within the last three years
(other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements).
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(g)
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Reviewing Party : means any appropriate
person or body consisting of a member or members of the
Company’s Board of Directors or any other person or body
appointed by the Board who is not a party to the particular Claim
for which Indemnitee is seeking indemnification, or Independent
Legal Counsel.
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(h)
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Voting Securities : means any
securities of the Company which vote generally in the election of
directors.
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2. Basic Indemnification Arrangement;
Advancement of Expenses .
(a) In the event Indemnitee was, is or becomes a party to or
witness or other participant in, or is threatened to be made a
party to or witness or other participant in, a Claim by reason of
(or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law
as soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and
all Indemnifiable Amounts.
(b) If so requested by Indemnitee, the Company shall advance
(within five business days of such request) any and all Expenses
incurred by Indemnitee (an
"Expense Advance"). The Company shall, in
accordance with such request (but without duplication), either
(i) pay such Expenses on behalf of Indemnitee, or
(i
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