EXHIBIT 10.7
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and executed this ________ day of
___________, 2004, by and between GREAT WOLF RESORTS, INC., a Delaware
corporation (the "Company"), and __________________, an individual resident of
the State of ______________ (the "Indemnitee").
WHEREAS, the Company is aware that, in order to induce highly competent
persons to serve the Company as directors or officers or in other capacities,
the Company must provide such persons with adequate protection through insurance
and indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company recognizes that the increasing difficulty in
obtaining directors' and officers' liability insurance, the increases in the
cost of such insurance and the general reductions in the coverage of such
insurance have increased the difficulty of attracting and retaining such
persons;
WHEREAS, the Board of Directors of the Company has determined that it
is essential to the best interests of the Company's stockholders that the
Company 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 such persons to the fullest extent
permitted by applicable law so that they will continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and
take on additional service for or on behalf of the Company on the condition that
he/she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee agrees to serve and/or
continue to serve as a director or officer of the Company faithfully and will
discharge his/her duties and responsibilities to the best of his/her ability so
long as the Indemnitee is duly elected or qualified in accordance with the
provisions of the Certificate of Incorporation (as may be amended from time to
time, the "Certificate"), and By-laws (as may be amended from time to time, the
"By-laws") of the Company, the General Corporation Law of the State of Delaware,
as amended (the "DGCL") and any other applicable law in effect on the date of
this Agreement and from time to time, or until his/her earlier death,
resignation or removal. The Indemnitee may at any time and for any reason resign
from such position (subject to any other contractual obligation or other
obligation imposed by operation by law), in which event the Company shall have
no obligation
under this Agreement to continue the employment or directorship of the
Indemnitee. Nothing in this Agreement shall confer upon the Indemnitee the right
to continue in the employ of the Company or as a director of the Company or
affect the right of the Company to terminate the Indemnitee's employment at any
time in the sole discretion of the Company, with or without cause, subject to
any contract rights of the Indemnitee created or existing otherwise than under
this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee against
all Expenses (as defined below), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee as provided in this Agreement
to the fullest extent permitted by the Certificate, By-laws and DGCL or other
applicable law in effect on the date of this Agreement and to any greater extent
that applicable law may in the future from time to time permit. Without
diminishing the scope of the indemnification provided by this Section 2, the
rights of indemnification of the Indemnitee provided hereunder shall include,
but shall not be limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any suit in which judgment is rendered
against the Indemnitee for disgorgement of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended (the "Act"), or similar provisions of any
federal, state or local statutory law;
(b) on account of conduct of the Indemnitee which is finally
adjudged by a court of competent jurisdiction to have been knowingly
fraudulent or to constitute willful misconduct;
(c) in any circumstance where such indemnification is
expressly prohibited by applicable law;
(d) with respect to liability for which payment is actually
made to the Indemnitee under a valid and collectible insurance policy
or under a valid and enforceable indemnity clause, By-law or agreement
(other than this Agreement), except in respect of any liability in
excess of payment under such insurance policy, indemnity clause, By-law
or agreement;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in
this respect, both the Company and the Indemnitee have been advised
that it is the position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal securities
laws is against public policy and is, therefore, unenforceable, and
that claims for indemnification should be submitted to the appropriate
court for adjudication); or
(f) in connection with any proceeding by the Indemnitee
against the Company or its directors, officers, employees or other
Indemnitees, (i) unless such indemnification is expressly required to
be made by law, (ii) unless the
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proceeding was authorized by the Board of Directors of the Company,
(iii) unless such indemnification is provided by the Company, in its
sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 11 and 13
hereof.
3. ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT OF
THE COMPANY. The Indemnitee shall be entitled to the indemnification rights
provided in this Section 3 if the Indemnitee was or is a party or is threatened
to be a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative in nature,
other than an action by or in the right of the Company, by reason of the fact
that the Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of any other entity, including,
but not limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in such capacity. Pursuant to this Section 3, the
Indemnitee shall be indemnified against all Expenses, judgments, penalties
(including excise and similar taxes), fines and amounts paid in settlement which
were actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (including, but not limited to, the investigation,
defense or appeal thereof), if the Indemnitee acted in good faith and in a
manner the 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, had no reasonable cause to believe his/her conduct was unlawful.
4. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee shall be
entitled to the indemnification rights provided in this Section 4 if the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another entity, including,
but not limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in any such capacity. Pursuant to this Section 4,
the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him/her in connection with the defense or settlement of such action,
suit or proceeding (including, but not limited to the investigation, defense or
appeal thereof), if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company; provided, however, that no such indemnification shall be made in
respect of any claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action,
suit or proceeding was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to be indemnified against such
Expenses actually and reasonably incurred by him/her which such court shall deem
proper.
5. GOOD FAITH DEFINITION. For purposes of this Agreement, the
Indemnitee shall be deemed to have acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal action or
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proceeding to have had no reasonable cause to believe the Indemnitee's conduct
was unlawful, if such action was based on a reasonable reliance upon (i) the
records or books of the accounts of the Company or other enterprise, including
financial statements; (ii) information supplied to the Indemnitee by the
officers of the Company or other enterprise in the course of their duties; (iii)
the advice of legal counsel for the Company or other enterprise; or (iv)
information or records given in reports made to the Company or other enterprise
by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or other enterprise.
6. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
the other provisions of this Agreement, to the extent that the Indemnitee has
served on behalf of the Company as a witness or other participant in any class
action or proceeding, or has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Sections 3 and 4
hereof, or in defense of any claim, issue or matter therein, including, but not
limited to, the dismissal of any action without prejudice, the Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not the Indemnitee
has met the applicable standards of Section 3 or 4 and without any determination
pursuant to Section 8.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, appeal or settlement of such suit, action, investigation
or proceeding described in Section 3 or 4 hereof, but is not entitled to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnitee to which the Indemnitee is entitled.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. (a)
To obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including documentation and information that is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification. Any Expenses incurred by the Indemnitee in connection
with the Indemnitee's request for indemnification hereunder shall be borne by
the Company. The Company hereby indemnifies and agrees to hold the Indemnitee
harmless for any Expenses incurred by Indemnitee under the immediately preceding
sentence irrespective of the outcome of the determination of the Indemnitee's
entitlement to indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant
to Section 3 or 4 hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the following
person or persons, who shall be empowered to make such determination: (i) if a
Change in Control (as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing
that such determination be made by the Board of Directors (or a committee
thereof) in the
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manner provided for in clause (ii) of this Section 8(b)) in a written opinion to
the Board of Directors, a copy of which shall be delivered to the Indemnitee; or
(ii) if a Change in Control shall not have occurred, (A)(1) by the Board of
Directors of the Company, by a majority vote of Disinterested Directors (as
hereinafter defined) even though less than a quorum, or (2) by a committee of
Disinterested Directors designated by majority vote of Disinterested Directors,
even though less than a quorum, or (B) if there are no such Disinterested
Directors or, even if there are such Disinterested Directors, if the Board of
Directors, by the majority vote of Disinterested Directors, so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee. Such Independent Counsel shall be
selected by the Board of Directors and approved by the Indemnitee. Upon failure
of the Board of Directors to so select, or upon failure of the Indemnitee to so
approve, such Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall designate to make
such selection. Such determination of entitlement to indemnification shall be
made not later than 45 days after receipt by the Company of a written request
for indemnification. If the person making such determination shall determine
that the Indemnitee is entitled to indemnification as to part (but not all) of
the application for indemnification, such person shall reasonably prorate such
part of indemnification among such claims, issues or matters. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten days after such determination.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In making a
determination with respect to entitlement to indemnification, the Indemnitee
shall be presumed to be entitled to indemnification hereunder and the Company
shall have the burden of proof in the making of any determination contrary to
such presumption.
(b) If the Board of Directors, or such other person or persons
empowered pursuant to Section 8 to make the determination of whether Indemnitee
is entitled to indemnification, shall have failed to make a determination as to
entitlement to indemnification within 45 days after receipt by the Company of
such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual fraud in the request for
indemnification or a prohibition of indemnification under applicable law. The
termination of any action, suit, investigation or proceeding described in
Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself: (a) create a
presumption that the Indemnitee did not act in good faith and in a manner which
he/she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, that the
Indemnitee has reasonable cause to believe that the Indemnitee's conduct was
unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
10. ADVANCEMENT OF EXPENSES. All reasonable Expenses actually incurred
by the Indemnitee in connection with any threatened or pending action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, if so requested by the Indemnitee, within 20
days after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances. The Indemnitee may submit such
statements from time to time. The Indemnitee's entitlement to such Expenses
shall
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include those incurred in connection with any proceeding by the Indemnitee
seeking an adjudication or award in arbitration pursuant to this Agreement. Such
statement or statements shall reasonably evidence the Expenses incurred by the
Indemnitee in connection therewith and shall include or be accompanied by a
written affirmation by Indemnitee of Indemnitee's good faith belief that
Indemnitee has met the standard of conduct necessary for indemnification under
this Agreement and an undertaking by or on behalf of the Indemnitee to repay
such amount if it is ultimately determined that the Indemnitee is not entitled
to be indemnified against such Expenses by the Company pursuant to this
Agreement or otherwise. Each written undertaking to pay amounts advanced must be
an unlimited general obligation but need not be secured, and shall be accepted
without reference to financial ability to make repayment.
11. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES. In the event that a determination is made that
the Indemnitee is not entitled to indemnification hereunder or if the payment
has not been timely made following a determination of entitlement to
indemnification pursuant to Sections 8 and 9, or if Expenses are not advanced
pursuant to Section 10, the Indemnitee shall be entitled to a final adjudication
in an appropriate court of the State of Delaware or any other court of competent
jurisdiction of the Indemnitee's entitlement to such indemnification or advance.
Alternatively, the Indemnitee may, at the Indemnitee's option, seek an award in
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, such award to be made within 60 days following
the filing of the demand for arbitration. The Company shall not unreasonably
oppose the Indemnitee's right to seek any such adjudication or award in
arbitration or any other claim. Such judicial proceeding or arbitration shall be
made de novo, and the Indemnitee shall not be prejudiced by reason of a
determination (if so made) that the Indemnitee is not entitled to
indemnification. If a determination is made or deemed to have been made pursuant
to the terms of Section 8 or Section 9 hereof that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination and shall be
precluded from asserting that such determination has not been made or that the
procedure by which such determination was made is not valid, binding and
enforceable. The Company further agrees to stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertions to the contrary. If the
court or arbitrator shall determine that the Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable Expenses
actually incurred by the Indemnitee in connection with such adjudication or
award in arbitration (including, but not limited to, any appellate proceedings).
12. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Indemnitee of notice of the commencement of any action, suit or proceeding, the
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to the Indemnitee otherwise than under this Agreement
or otherwise, except to the extent that the Company may suffer material
prejudice by reason of such failure. Notwithstanding any other provision of this
Agreement, with respect to any such action, suit or proceeding as to which the
Indemnitee gives notice to the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its
own expense.
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(b) Except as otherwise provided in this Section 12(b), to the
extent that it may wish, the Company, jointly with any other
indemnifying party similarly notified, shall be entitled to assume the
defense thereof with counsel reasonably satisfactory to the Indemnitee.
After notice from the Company to the Indemnitee of its election to so
assume the defense thereof, the Company shall not be liable to the
Indemnitee under this Agreement for any legal or other Expenses
subsequently incurred by the Indemnitee in connection with the defense
thereof other than reasonable costs of investigation or as otherwise
provided below. The Indemnitee shall have the right to employ the
Indemnitee's own counsel in such action or lawsuit, but the fees and
Expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized in writing by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest
between the Company and the Indemnitee in the conduct of the defense of
such action and such determination by the Indemnitee shall be supported
by an opinion of counsel, which opinion shall be reasonably acceptable
to the Company, or (iii) the Company shall not in fact have employed
counsel to assume the defense of the action, in each of which cases the
fees and Expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action,
suit or proceeding brought by or on behalf of the Company or as to
which the Indemnitee shall have reached the conclusion provided for in
clause (ii) above.
(c) The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent, which consent
shall not be unreasonably withheld. The Company shall not be required
to obtain the consent of Indemnitee to settle any action or claim which
the Company has undertaken to defend if the Company assumes full and
sole responsibility for such settlement and such settlement grants
Indemnitee a complete and unqualified release in respect of potential
liability.
(d) If, at the time of the receipt of a notice of a claim
pursuant to this Section 12, the Company has director and officer
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 the Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of the policies.
13. OTHER RIGHT TO INDEMNIFICATION. The indemnification and advancement
of Expenses provided by this Agreement are cumulative, and not exclusive, and
are in addition to any other rights to which the Indemnitee may now or in the
future be entitled under any provision of the By-laws or Certificate of the
Company, any vote of stockholders or Disinterested Directors, any provision of
law or otherwise. Except as required by applicable law, the Company shall not
adopt any amendment to its By-laws or Certificate the effect of which
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would be to deny, diminish or encumber the Indemnitee's right to indemnification
under this Agreement.
14. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall, from
time to time, make the good faith determination whether or not it is practicable
for the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In the event the
Company maintains directors' and officers' liability insurance, the Indemnitee
shall be named as an insured in such manner as to provide the Indemnitee the
same rights and benefits as are accorded to the most favorably insured of the
Company's officers or directors. However, the Company agrees that the provisions
hereof shall remain in effect regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company; except that any
payments made to, or on behalf of, the Indemnitee under an insurance policy
shall reduce the obligations of the Company hereunder. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided or if the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit.
15. SPOUSAL INDEMNIFICATION. The Company will indemnify the
Indemnitee's spouse to whom the Indemnitee is legally married at any time the
Indemnitee is covered under the indemnification provided in this Agreement (even
if Indemnitee did not remain married to him or her during the entire period of
coverage) against any pending or threatened action, suit, proceeding or
investigation for the same period, to the same extent and subject to the same
standards, limitations, obligations and conditions under which the Indemnitee is
provided indemnification herein, if the Indemnitee's spouse (or former spouse)
becomes involved in a pending or threatened action, suit, proceeding or
investigation solely by reason of his or her status as Indemnitee's spouse,
including, without limitation, any pending or threatened action, suit,
proceeding or investigation that seeks damages recoverable from marital
community property, jointly-owned property or property purported to have been
transferred from the Indemnitee to his/her spouse (or former spouse). The
Indemnitee's spouse or former spouse also may be entitled to advancement of
Expenses to the same extent that Indemnitee is entitled to advancement of
Expenses herein. The Company may maintain insurance to cover its obligation
hereunder with respect to Indemnitee's spouse (or former spouse) or set aside
assets in a trust or escrow fund for that purpose.
16. INTENT. This Agreement is intended to be broader than any statutory
indemnification rights applicable in the State of Delaware and shall be in
addition to any other rights Indemnitee may have under the Company's
Certificate, By-laws, applicable law or otherwise. To the extent that a change
in applicable law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Company's Certificate, By-laws, applicable law or this Agreement, it is the
intent of the parties that Indemnitee enjoy by this Agreement the greater
benefits so afforded by such change.
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17. ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In the
event that the Indemnitee is subject to or intervenes in any proceeding in which
the validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce the Indemnitee's rights under,
or to recover damages for breach of, this Agreement the Indemnitee, if he/she
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any actual expenses
for attorneys' fees and disbursements reasonably incurred by the Indemnitee.
18. EFFECTIVE DATE. The provisions of this Agreement shall cover
claims, actions, suits or proceedings whether now pending or hereafter commenced
and shall be retroactive to cover acts or omissions or alleged acts or omissions
which heretofore have taken place. The Company shall be liable under this
Agreement, pursuant to Sections 3 and 4 hereof, for all acts of the Indemnitee
while serving as a director and/or officer, notwithstanding the termination of
the Indemnitee's service, if such act was performed or omitted to be performed
during the term of the Indemnitee's service to the Company.
19. DURATION OF AGREEMENT. This Agreement shall survive and continue
even though the Indemnitee may have terminated his/her service as a director,
officer, employee, agent or fiduciary of the Company or as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to
another corporation, partnership, limited liability company, employee benefit
plan, joint venture, trust or other enterprise or by reason of any act or
omission by the Indemnitee in any such capacity. This Agreement shall be binding
upon the Company and its successors and assigns, including, without limitation,
any corporation or other entity which may have acquired all or substantially all
of the Company's assets or business or into which the Company may be
consolidated or merged, and shall inure to the benefit of the Indemnitee and
his/her spouse, successors, assigns, heirs, devisees, executors, administrators
or other legal representations. The Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance reasonably satisfactory to
the Company and the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or assignment had taken place.
20. DISCLOSURE OF PAYMENTS. Except as expressly required by any Federal
or state securities laws or other Federal or state law, neither party shall
disclose any payments under this Agreement unless prior approval of the other
party is obtained.
21. SEVERABILITY. If any provision or provisions of this Agreement
shall be held invalid, illegal or unenforceable for any reason whatsoever, (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, but not limited to, all portions of any Sections of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (b) to
the fullest extent possible, the provisions of this Agreement (including, but
not limited to, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
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22. COUNTERPARTS. This Agreement may be executed by one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought shall
be required to be produced to evidence the existence of this Agreement.
23. CAPTIONS. The captions and headings used in this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
24. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" shall mean:
(i) a "change in control" of the Company of a nature that
would be required to be reported in response to Item
6(e) of Schedule 14A for a proxy statement filed under
Section 14(a) of the Act as in effect on the date of
this Agreement;
(ii) a "person" (as that term is used in 14(d)(2) of the Act)
who becomes the beneficial owner (as defined in Rule
13d-3 under the Act) directly or indirectly of
securities representing 45% or more of the combined
voting power for election of directors of the then
outstanding securities of the Company;
(iii) the individuals who at the beginning of any period of
two consecutive years or less (starting on or after the
date of this Agreement) constitute the Company's Board
of Directors cease for any reason during such period to
constitute at least a majority of the Company's Board of
Directors, unless the election or nomination for
election of each new member of the Board of Directors
was approved in advance by vote of at least two-thirds
of the members of such Board of Directors then still in
office who were members of such Board of Directors at
the beginning of such period;
(iv) the stockholders of the Company approve any
reorganization, merger, consolidation or share exchange
as a result of which the common stock of the Company
shall be changed, converted or exchanged into or for
securities of another organization or any dissolution or
liquidation of the Company or any sale or the
disposition of 50% or more of the assets or business of
the Company; or
(v) the stockholders of the Company approve any
reorganization, merger, consolidation or share exchange
with another corporation unless (1) the persons who were
the beneficial owners of the
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outstanding shares of the common stock of the Company
immediately before the consummation of such transaction
beneficially own more than 60% of the outstanding shares
of the common stock of the successor or survivor
corporation in such transaction immediately following
the consummation of such transaction and (2) the number
of shares of the common stock of such successor or
survivor corporation beneficially owned by the persons
described in Section 24(a)(v)(1) immediately following
the consummation of such transaction is beneficially
owned by each such person in substantially the same
proportion that each such person had beneficially owned
shares of the Company common stock immediately before
the consummation of such transaction, provided (3) the
percentage described in Section 24(a)(v)(1) of the
beneficially owned shares of the successor or survivor
corporation and the number described in Section
24(a)(v)(2) of the beneficially owned shares of the
successor or survivor corporation shall be determined
exclusively by reference to the shares of the successor
or survivor corporation which result from the beneficial
ownership of shares of common stock of the Company by
the persons described in Section 24(a)(v)(1) immediately
before the consummation of such transaction.
(b) "Disinterested Director" shall mean a director of the Company who
is not or was not a party to the action, suit, investigation or proceeding in
respect of which indemnification is being sought by the Indemnitee.
(c) "Expenses" shall include all 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 incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative in nature.
(d) "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five years has been retained to
represent (i) the Company or the Indemnitee in any matter material to either
such party or (ii) any other party to the action, suit, investigation or
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 the Indemnitee
in an action to determine the Indemnitee's right to indemnification under this
Agreement.
25. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement
constitutes the entire agreement and understanding of the parties hereto
regarding the subject matter hereof, and
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no supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver. No supplement, modification or amendment of this
Agreement shall limit or restrict any right of the Indemnitee under this
Agreement in respect of any act or omission of the Indemnitee prior to the
effective date of such supplement, modification or amendment unless expressly
provided therein.
26. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand with receipt acknowledged by the party to whom said notice or
other communication shall have been directed or if (ii) mailed by certified or
registered mail, return receipt requested with postage prepaid, on the date
shown on the return receipt:
(a) If to the Indemnitee to:
________________________________
________________________________
________________________________
(b) If to the Company, to:
Great Wolf Resorts, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxxxxx
with a copy to:
King & Spalding LLP
Attn: Xxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
27. GOVERNING LAW. The parties hereto agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, applied without giving effect to any conflicts-of-law
principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
GREAT WOLF RESORTS, INC.
By_________________________________
Name:______________________________
Title:_____________________________
INDEMNITEE:
By_________________________________
Name:______________________________
