Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is made and entered into as of
___________, 2009 between Grande Communications Holdings, Inc., a
Delaware corporation (the “ Company ”), and
__________ (“ Indemnitee ”).
RECITALS
WHEREAS, directors, officers, and
other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that
traditionally would have been brought only against the corporation
or business enterprise itself;
WHEREAS, highly competent persons
have become more reluctant to serve corporations as directors or
officers unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of
claims and actions against them arising out of their service to and
activities on behalf of the corporation;
WHEREAS, the Board of Directors of
the Company (the “ Board ”) has determined that
the increased difficulty in attracting and retaining such persons
is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that
they will not be so indemnified;
WHEREAS, the Board does not regard
the protection available under the Restated Certificate of
Incorporation of the Company (the “ Charter ”)
or the Bylaws of the Company, as amended (the “ Bylaws
”), and insurance as adequate in the present
circumstances;
WHEREAS, although the Charter and
Bylaws require indemnification of the officers and directors of the
Company, and Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware
(“ DGCL ”), the Charter, the Bylaws and the DGCL
expressly provide that the indemnification provisions set forth
therein are not exclusive, and thereby contemplate that contracts
may be entered into between the Company and members of the Board,
officers and other persons with respect to indemnification;
and,
WHEREAS, this Agreement is a
supplement to and in furtherance of the Charter and Bylaws and any
resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder or under applicable law, including the
DGCL;
NOW, THEREFORE, in consideration of
Indemnitee’s agreement to serve as an officer or director
from and after the date hereof, the parties hereto
agree as follows:
1.
Definitions. For purposes of
this Agreement:.
(a)
“
Change in Control ” means and shall be deemed to have
occurred if (i) any Person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
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, becomes the “
beneficial owner ” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing more than 30% of the total voting power represented by
the Company’s then outstanding Voting Securities, (ii) during
any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, (iii) the stockholders of
the Company approve a merger or consolidation of the Company with
any other corporation other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) at least two-thirds (2/3) of the total
voting power represented by the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of (in one transaction or a
series of transactions) all or substantially all of the
Company’s assets. For purposes of this paragraph, “
Voting Securities ” shall mean any securities of the
Company that vote generally in the election of
directors.
(b)
“
Corporate Status ” describes the status of a person at
the time of the action or inaction that is complained of in, or the
subject of, the Proceeding as (i) a director or officer of the
Company, any of its wholly-owned subsidiaries or any other
corporation, partnership, joint venture, trust, or other enterprise
that such person is or was serving at the express written request
of the Company or (ii) a fiduciary for an employee benefit plan of
the Company or any of its wholly-owned subsidiaries.
(c)
“ Disinterested
Director ” means a director of the Company who is not and
was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d)
“ Exchange Act
” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
(e)
“ Expenses
” means all expenses incurred in connection with
any Proceeding, including reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute,
or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding, or responding to, or objecting to, a
request to provide discovery in any
Proceeding. “Expenses” also shall include
Expenses incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or
other appeal bond or its
equivalent. “Expenses”, however, shall not
include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(f)
“ Independent
Counsel ” means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(g)
“ Proceeding ” means and
includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or
completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved, as
a party or otherwise, (i) by reason of the fact that Indemnitee is
or was an officer or director of the Company or any of its
wholly-owned subsidiaries at the time of the action or inaction
complained of therein, (ii) by reason of any action taken by
Indemnitee or of any inaction on Indemnitee’s part while
acting as an officer or director of the Company or any of its then
wholly-owned subsidiaries, or (iii) by reason of the fact that
Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise,
including serving in a fiduciary capacity on behalf of an employee
benefit plan of the Company or any of its wholly-owned
subsidiaries; in each case whether or not Indemnitee is acting or
serving in any such capacity at the time any liability or expense
is incurred for which indemnification can be provided under this
Agreement and including any pending on or before the date of this
Agreement.
(h)
“ Securities Act ” means the
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
2.
Indemnity of Indemnitee
. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by applicable
law, as such may be amended from time to time, for the matters set
forth below in this Section 2 .
(a)
Proceedings Other Than
Proceedings by or in the Right of the Company
. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 2(a) if, by reason
of Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be made, a party to or participant in any Proceeding
other than a Proceeding by or in the right of the
Company. Pursuant to this Section 2(a) , the
Company shall hold harmless and indemnify Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in
settlement (if such settlement is approved in advance by the Board,
which approval shall not be unreasonably withheld, conditioned or
delayed) actually and reasonably incurred by Indemnitee, or on
Indemnitee’s behalf, in connection with such Proceeding or
any claim, issue or matter therein, 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
Indemnitee’s conduct was unlawful.
(b)
Proceedings by or in the
Right of the Company . Indemnitee shall be entitled
to the rights of indemnification provided in this Section
2(b) if, by reason of Indemnitee’s Corporate Status,
Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section 2(b) , the
Company shall hold harmless and indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee, or on
Indemnitee’s behalf, in connection with such Proceeding 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; provided, however, if applicable law so provides,
no indemnification against such Expenses shall be made in respect
of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged by court order or judgment to
be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such
indemnification may be made.
(c)
Indemnification for Expenses of a Party
Who is Wholly or Partly Successful . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a
party to and is successful on the merits, in any Proceeding, the
Company shall hold harmless and indemnify Indemnitee to the maximum
extent permitted by applicable law, as such may be amended from
time to time, against all Expenses actually and 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 actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this
Section and without limitation, 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.
3.
Indemnification for Expenses of a
Witness . Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee, by reason of
Indemnitee’s Corporate Status, is a witness, or is made (or
asked) to respond to discovery requests, in any Proceeding, the
Company shall hold harmless and indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
4.
Advancement of Expenses
. Notwithstanding any other provision of this Agreement,
the Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of
Indemnitee’s Corporate Status within thirty (30) days after
the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding and
representing that In
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