Exhibit 10.1.1
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
“ Agreement ”) is made and entered into as of
,
2007, by and between GLG Partners, Inc., a Delaware corporation
(the “ Company ”), and [Name] (“
Indemnitee ”).
RECITALS
WHEREAS, the Company recognizes that
competent and experienced individuals are increasingly reluctant to
serve or continue to serve as directors, officers, senior
management or other Agents of corporations unless they are
protected by comprehensive liability insurance or indemnification,
or both, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the
fact that the exposure frequently bears no reasonable relationship
to the compensation of such directors and officers;
WHEREAS, Article B of the
Company’s Amended and Restated Certificate of Incorporation
requires the Company to indemnify its directors, officers,
employees and agents to the fullest extent permitted by the
Delaware General Corporation Law (the “ DGCL ”),
and the Amended Bylaws of the Company expressly provide that the
indemnification provisions set forth therein are not exclusive, and
contemplate that contracts may be entered into between the Company
and its Agents with respect to indemnification;
WHEREAS, the Company and its
Subsidiaries operate in a regulated industry and in order to induce
and encourage highly experienced and capable individuals to serve
as officers, directors, senior management or other Agents of the
Company, its Subsidiaries and certain other entities (including the
funds managed by Subsidiaries) to take the business risks necessary
for the success of the Company and to otherwise promote the
desirable end that such persons will resist what they consider
unjustifiable lawsuits and claims made against them in connection
with good faith performance of their duties to the Company, its
Subsidiaries and certain other entities (including the funds
managed by Subsidiaries) secure in the knowledge that certain
expenses, costs and liabilities incurred by them in their defense
of such litigation will be borne by the Company and that they will
receive the maximum protection against such risks and liabilities
as may be afforded by law, the Board of Directors of the Company
(the “ Board ”) has determined, after due
consideration and investigation of the terms and provisions of this
Agreement and the various other options available to the Company
and Indemnitee in lieu hereof, that contractual indemnification as
set forth herein is not only reasonable and prudent but necessary
to promote and ensure the best interests of the Company and its
stockholders;
WHEREAS, the Company desires and has
requested Indemnitee to serve or continue to serve as a director,
officer, senior manager or other Agent of the Company; and
WHEREAS, Indemnitee is willing to
serve, continue to serve or provide additional service as a
director, officer, senior manager or other Agent of the Company
based on the expectation that he or she is furnished the indemnity
provided for herein.
NOW, THEREFORE, in consideration of
the above premises and the mutual covenants and agreements set
forth herein, the parties hereby agree as follows:
Section 1. Definitions
. As used in this Agreement:
(a) “ Acquisition Closing
Date ” means November 2, 2007.
(b) “ Agent ” of
the Company shall include any person who is or was a director,
officer, employee or agent of the Company, a Subsidiary, a
predecessor corporation of the Company or an Employee Benefit Plan,
or is or was a person authorized by the Company to act for the
Company as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan, fund or other enterprise (including
of Sage Summit Ltd. and Mount Garnet Limited, as general partners
of Sage Summit LP and Lavender Heights Capital LP, respectively,
and of Mount Granite Limited and Mount Garnet Limited, as managing
members of Laurel Heights LLP and Lavender Heights LLP,
respectively), at the request of, for the convenience of or to
represent the interests of the Company or a Subsidiary.
(c) “ Applicable
Threshold ” means the greater of (i) 25% of the then
Outstanding Voting Securities or (ii) the then Outstanding
Voting Securities beneficially owned by the Principals (including
by their respective families, Trusts, partnerships and charitable
foundations controlled by any of the Principals), as the case may
be.
(d) “ Bylaws ”
means the Bylaws of the Company, as amended.
(e) “ Certificate of
Incorporation ” means the certificate of incorporation of
the Company, as amended.
(f) A “Change in
Control” shall be deemed to occur upon the earliest to
occur after the date hereof of any of the following events:
(i) Acquisition of Stock by Third
Party . (i) the acquisition or ownership after the
Acquisition Closing Date by any individual, entity or group (within
the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) (each, a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act)
of the combined voting power of the then Outstanding Voting
Securities in excess of the Applicable Threshold; provided ,
however , that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change of Control:
(1) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or a Subsidiary,
(2) any acquisition pursuant to the exchange of Exchangeable
Class B Ordinary Shares of FA Sub 2 Limited for shares of
Stock or (3) any acquisition pursuant to a transaction that
complies with clauses clauses (A), (B) and (C) of
subsection (iii) of this paragraph (f).
(ii) Change in Board of
Directors . Individuals who, as of the Acquisition Closing
Date, constitute the Board of Directors (the “ Incumbent
Board ”) cease for any reason to constitute at least a
majority of the Board of Directors; provided ,
however , that any individual becoming a director subsequent
to that date whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the
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Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board;
(iii) Corporate Transactions .
The consummation of a reorganization, merger or consolidation, or
sale or other disposition of all or substantially all of the assets
of the Company, or the acquisition of assets of another entity (a
“ Corporate Transaction ”), in each case,
unless, following such Corporate Transaction, (A) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Voting Securities immediately
prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 50% of the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation
that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership of the Outstanding Voting Securities
immediately prior to such Corporate Transaction, (B) no Person
(excluding any employee benefit plan (or related trust) of the
Company, a Subsidiary or such corporation resulting from such
Corporate Transaction) beneficially owns, directly or indirectly,
the combined voting power of the then outstanding voting securities
in excess of the greater of (x) 25% of the outstanding voting
securities or (y) the number of outstanding voting securities
beneficially owned by the Principals (including their respective
families, Trusts, partnerships and charitable foundations
controlled by any of the Principals), in each case, with respect to
the corporation resulting from such Corporate Transaction, except
to the extent that such ownership existed in the Company prior to
the Corporate Transaction, and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Corporate Transaction were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such Corporate
Transaction; or
(iv) Liquidation . Approval by
the stockholders of the Company of a complete liquidation or
dissolution of the Company.
(g) “ Company ”
shall include, without limitation and in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and 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
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving
corporation as he or she would have with respect to such
constituent corporation if its separate existence had
continued.
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(h) “ Disinterested
Director ” means a director of the Company who is not and
was not a party to any Proceeding in respect of which indemnity is
sought by Indemnitee.
(i) “ Employee Benefit
Plan ” means any employee benefit plan of the Company or
any of its Subsidiaries for the benefit of their employees, service
providers, non-employee directors and/or limited partners,
including the GLG Equity Participation Plan, the GLG Limited
Partner Profit Share Arrangement, the 2007 Restricted Stock Plan
and the 2007 Long-Term Incentive Plan.
(j) “ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
(k) “ Expenses ”
shall be broadly and reasonably construed and shall include all
direct and indirect costs actually and reasonably incurred of any
type or nature whatsoever including, without limitation,
(i) all attorneys’ fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses
(including food and lodging expenses while traveling), duplicating
costs, printing and binding costs, telephone charges, postage,
delivery service, freight or other transportation fees and expenses
and related disbursements and (ii) all other disbursements and
out-of-pocket costs, actually and reasonably incurred by Indemnitee
in connection with either the investigation, defense or appeal of a
Proceeding (including, without limitation, the costs of any surety
or other bond that may be required of Indemnitee pending the
defense or appeal of a Proceeding) or establishing or enforcing a
right to indemnification or advancement of expenses under this
Agreement, the DCGL or otherwise. The term “ Expenses
” shall not include taxes except to the extent taxes are
imposed in respect of payments otherwise made pursuant to this
Agreement, in which case such Indemnitee’s Expenses shall
include an amount not greater than the net taxes payable (taking
into account any deductions, credits or other tax benefits
available to such Indemnitee as a result of the Expenses in respect
of which such payment is made and the payment of the taxes imposed
in respect of such payment) (such amount, a “ Gross-Up
Payment ”). Any Gross-Up Payment will be made to
Indemnitee no later than the end of the calendar year following the
year in which Indemnitee pays the related taxes that are being
“grossed-up”.
(l) “ GLG Equity
Participation Plan ” means the plan established in
March 2007 pursuant to which certain holders of direct or
indirect limited partnership interests in GLG Partners LP and GLG
Partners Services LP are entitled to receive in the aggregate 15%
of the total consideration to be paid in the acquisition by the
Company of GLG Partners LP and its affiliated entities.
(m) “ GLG Limited Partner
Profit Share Arrangement ” means the arrangement
established in June 2006 pursuant to which certain individuals
provide services to GLG Partners LP and/or GLG Partners Services LP
as holders of direct or indirect limited partnership interests in
GLG Partners LP and GLG Partners Services LP and are entitled to
receive fixed, variable and/or discretionary profit share interests
in the profits of GLG Partners LP and GLG Partners Services
LP.
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(n) “ Independent
Counsel ” means a law firm, member of a law firm, or
attorney that is (i) experienced in matters of corporation
law; (ii) neither presently is, nor in the past year has been,
retained to represent: the Company, Indemnitee, any affiliate of
the Company or any other party to the Proceeding giving rise to a
claim for indemnification hereunder in any matter material to any
such party; and (iii) would not, under the applicable
standards of professional conduct then prevailing, have a conflict
of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this
Agreement.
(o) “ Outstanding Voting
Securities ” means the outstanding voting securities of
the Company entitled to vote generally in the election of
directors.
(p) “ Principals ”
means Noam Gottesman, Pierre Lagrange and Emmanuel Roman.
(q) “ Proceeding ”
shall include any overtly threatened (in writing), pending or
completed action, suit or proceeding, whether brought by or in the
name of the Company or otherwise, and whether of a civil, criminal,
administrative, regulatory, arbitral or investigative nature
including, but not limited to, actions, suits, arbitrations,
mediations, discovery requests, investigations (including internal
investigations), formal or informal investigations by a government
agency, or any other proceedings, in which Indemnitee may be or may
have been involved as a party, a witness or otherwise, by reason of
the fact that Indemnitee is or was an Agent of the Company, by
reason of any action taken by him or her or of any inaction on his
or her part while acting as an Agent whether or not he or she is
serving in such capacity at the time any Expense is incurred for
which indemnification or reimbursement can be provided under this
Agreement; provided , however , that except with
respect to an action to enforce the right to indemnification or
advancement of expenses under this Agreement, the DGCL or otherwise
or a right to D&O Insurance (as defined in Section 8),
“ Proceeding ” shall not include any action,
suit or proceeding instituted by or at the direction of Indemnitee,
unless such action, suit or proceeding is or was authorized by the
Board.
(r) “ Subsidiary ”
shall mean any corporation or other entity of which a majority of
the voting power of the voting equity securities or equity
interests is owned, directly or indirectly, by the Company.
(s) “ Trust ”
means any trust of which any of the Principals is the settlor or of
which any of the Principals and/or any of the members of their
family are beneficiaries, including the Gottesman GLG Trust, the
Lagrange GLG Trust and the Roman GLG Trust.
(t) References to “ other
enterprises ” shall include, without limitation, Employee
Benefit Plans; references to “ judgments ” shall
include, without limitation, any award of punitive damages;
references to “ fines ” shall include, without
limitation, any excise tax assessed with respect to any Employee
Benefit Plan; and reference to “ at the request of the
Company or a Subsidiary ” shall include any service as a
director, officer, employee
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or agent with
respect to any Employee Benefit Plan, its member, participants
and/or beneficiaries.
(u) Any person who serves an Agent
with respect to any Employee Benefit Plan, its members,
participants and/or beneficiaries and acts in good faith and in a
manner he or she reasonably believes to be in the interest of the
members, participants and/or beneficiaries of such Employee Benefit
Plan, shall be deemed to have acted in a manner “ not
opposed to the best interests of the Company ” as
referred to in this Agreement.
Section 2. Indemnification
and Contribution . The Company shall indemnify
Indemnitee to the fullest extent permitted by Delaware law as in
effect on the date hereof or as Delaware law may from time to time
be amended (but, in the case of any such amendment, only to the
extent such amendment permits the Company to provide broader
indemnification rights than Delaware law permitted the Company to
provide before such amendment). Such indemnification shall include,
without limitation, the following:
(a) Indemnity in Third Party
Proceedings. The Company shall indemnify Indemnitee if
Indemnitee was or is a party to or is threatened to be made a party
to or otherwise involved in any Proceeding (other than a Proceeding
by or in the name of the Company to procure a judgment in its
favor) by reason of the fact that he or she is or was an Agent of
the Company or by reason of any action or inaction by him or her in
any such capacity, against all Expenses, judgments, fines,
penalties 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 and
amounts paid in settlement) actually and reasonably incurred by
Indemnitee in connection with the investigation, defense,
settlement or appeal of such Proceeding; provided that such
indemnification shall only be provided if Indemnitee acted in good
faith and 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 Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Indemnity in Derivative
Actions. The Company shall indemnify Indemnitee if Indemnitee
was or is a party to or threatened to be made a party to or
otherwise involved in (as a witness or otherwise) any Proceeding by
or in the name of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee was or is an Agent of the
Company or by reason of any action or inaction by him or her in any
such capacity, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of such Proceeding; provided
that such indemnification shall only be provided if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company; and
provided , further , that no such indemnification
shall be made 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, and only to the extent that, the Delaware
Court of Chancery or the 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
Expenses which the Delaware Court of Chancery or such other court
shall deem proper.
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(c) Partial Indemnification .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding or in defense of any claim,
issue or matter therein, in whole or in part, Indemnitee shall be
indem
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