Exhibit 10.3





Exhibit 10.3




INDEMNITY AGREEMENT




This Indemnity Agreement (this “Agreement”) dated as of
 _____ 
, is made by
and between GSI Commerce, Inc., a Delaware corporation (the “Company”), and

 _____ 
(“Indemnitee”).



Recitals




A. The Company desires to attract and retain the services of highly qualified individuals as
directors, officers, employees and other fiduciaries.



B. The Company’s bylaws (the “Bylaws”) require that the Company indemnify its directors, and
empowers the Company to indemnify its officers, employees and other fiduciaries, as authorized by
the Delaware General Corporation Law, as amended (the “DGCL”), under which the Company is organized
and such Bylaws expressly provide that the indemnification provided therein is not exclusive and
contemplates that the Company may enter into separate agreements with its directors, officers and
other persons to set forth specific indemnification provisions.



C. Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and available insurance as adequate under the present circumstances,
and the Company has determined that Indemnitee and other directors, officers, employees and other
fiduciaries of the Company may not be willing to serve or continue to serve in such capacities
without additional protection.



D. The Company desires and has requested Indemnitee to serve or continue to serve as a
director, officer, employee or other fiduciary of the Company or any subsidiary at the request and
on behalf of the Company, as the case may be, and has proffered this Agreement to Indemnitee as an
additional inducement to serve or continue to serve in such capacity.



E. Indemnitee is willing to serve, or to continue to serve, as a director, officer, employee
or other fiduciary of the Company or a director of any subsidiary, as the case may be, only if
Indemnitee is furnished the indemnity provided for herein by the Company.



Agreement




Now Therefore, in consideration of the mutual covenants and agreements set forth
herein, the parties hereto, intending to be legally bound, hereby agree as follows:




1. Definitions.



(a) Agent. For purposes of this Agreement, the term “agent” of the Company means any person
who: (i) is or was a director, officer, employee, agent, trustee or other fiduciary of the Company
or a subsidiary of the Company; or (ii) is or was serving at the request or for the convenience of,
or representing the interests of, the Company or a subsidiary of the Company, as a director,
officer, employee or other fiduciary of a foreign or domestic corporation, partnership, joint
venture, trust or other enterprise.


 


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(b) Board. For purposes of this Agreement, the term “Board” means the Board of Directors of
the Company.



(c) Expenses. For purposes of this Agreement, the term “expenses” shall be broadly construed
and shall include, without limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’, witness or other professional fees and
related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably
incurred by Indemnitee or on his behalf in connection with the investigation, defense or appeal of
a proceeding or establishing or enforcing a right to indemnification under this Agreement, the DGCL
or otherwise, and amounts paid in settlement by or on behalf of Indemnitee, but shall not include
any judgments, fines or penalties actually levied against Indemnitee for such individual’s
violations of law. The term “expenses” shall also include (i) expenses incurred in connection with
asserting compulsory counterclaims that negate a plaintiff’s claims, (ii) reasonable compensation
for time spent by Indemnitee for which he is not compensated by the Company or any subsidiary or
third party (x) for any period during which Indemnitee is not an agent, in the employment of, or
providing services for compensation to, the Company or any subsidiary, and (y) if the rate of
compensation and estimated time involved is approved by the directors of the Company who are not
parties to any action with respect to which expenses are incurred, for Indemnitee while an agent
of, employed by, or providing services for compensation to, the Company or any subsidiary and (iii)
expenses incurred in connection with any appeal resulting from any proceeding, including without
limitation the principal, premium, security for, and other costs relating to any cost bond,
supersedes bond, or other appeal bond or its equivalent.



(d) Proceedings. For purposes of this Agreement, the term “proceeding” shall be broadly
construed and shall include, without limitation, 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 in the right of
the Company or otherwise and whether of a civil, criminal, administrative or investigative nature,
and whether formal or informal in any case, in which Indemnitee was, is, or will reasonably likely
be involved as a party or otherwise by reason of: (i) the fact that Indemnitee is or was an agent
of the Company; (ii) the fact that any action taken (or failed to be taken) by Indemnitee or of any
action (or failure to act) on Indemnitee’s part while acting as an agent of the Company; or (iii)
the fact that Indemnitee is or was serving at the request of the Company as an agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and in
any such case described above, whether or not serving in any such capacity at the time any
liability or expense is incurred for which indemnification, reimbursement, or advancement of
expenses may be provided under this Agreement.



(e) Subsidiary. For purposes of this Agreement, the term “subsidiary” means any corporation
or limited liability company of which more than 50% of the outstanding voting securities or equity
interests are owned, directly or indirectly, by the Company and one or more of its subsidiaries,
and any other corporation, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the request of the
Company as an agent.


 


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(f) Independent Counsel. For purposes of this Agreement, the term “independent counsel” means
a law firm, or a partner (or, if applicable, member) of such a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five (5) years has been,
retained to represent (i) the Company or Indemnitee in any matter material to either such party, 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.



2. Agreement to Serve. Indemnitee will serve, or continue to serve, as a director, officer,
employee or other fiduciary of the Company or any subsidiary, as the case may be, faithfully and to
the best of his or her ability, at the will of such entity (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as an agent of such entity, so long
as Indemnitee is duly appointed or elected and qualified in accordance with the applicable
provisions of the bylaws or other applicable charter documents of such entity, or until such time
as Indemnitee tenders his or her resignation in writing; provided, however, that nothing contained
in this Agreement is intended as an employment agreement between Indemnitee and the Company or any
of its subsidiaries or to create any right to continued employment of Indemnitee with the Company
or any of its subsidiaries in any capacity.



The Company acknowledges that it has entered into this Agreement and assumes the obligations
imposed on it hereby, in addition to and separate from its obligations to Indemnitee under the
Bylaws, to induce Indemnitee to serve, or continue to serve, as a director, officer, employee,
agent, trustee or other fiduciary of the Company or any subsidiary, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving, or continuing to serve, as a director,
officer, employee, agent, trustee or other fiduciary of the Company or any subsidiary.




3. Indemnification.



(a) Indemnification in Third Party Proceedings. Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the DGCL, as the same may be amended
from time to time (but, only to the extent that such amendment permits broader indemnification
rights to Indemnitee than the DGCL permitted prior to adoption of such amendment), if Indemnitee is
a party to or threatened to be made a party to or otherwise involved, in any proceeding, for any
and all expenses actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of such proceeding. For the avoidance of doubt, the
foregoing indemnification obligation includes, without limitation, claims for monetary damages
against Indemnitee in respect of an alleged breach of fiduciary duties, to the fullest extent
permitted under Section 102(b)(7) of the DGCL as in existence on the date hereof.



(b) Indemnification in Derivative Actions and Direct Actions by the Company. Subject to
Section 10 below, the Company shall indemnify Indemnitee to the fullest extent permitted by the
DGCL, as the same may be amended from time to time (but, only to the extent that such amendment
permits broader indemnification rights to Indemnitee than the DGCL permitted prior to adoption of such amendment), if Indemnitee is a party to or threatened
to be made a party to or otherwise involved in any proceeding by or in the right of the Company to
procure a judgment in its favor, for any and all expenses actually and reasonably incurred by
Indemnitee in connection with the investigation, defense, settlement, or appeal of such
proceedings.


 


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(c) Supplemental Indemnitor. The Company hereby acknowledges that the Indemnitee may have
certain rights to indemnification, advancement of expenses or insurance, provided by an employer or
by another entity at whose request the Indemnitee serves as a director and/or certain affiliates of
such employer or other entity (collectively, the “Supplemental Indemnitor”). In the event that the
Indemnitee is, or is threatened to be made, a party to or a participant in any proceeding to the
extent resulting from any claim based on the Indemnitee’s service to the Company as a director or
other fiduciary of the Company, then the Company shall (i) be an indemnitor of first resort (i.e.,
its obligations to Indemnitee are primary and any obligation of the Supplemental Indemnitor to
advance expenses or to provide indemnification for the same expenses or liabilities incurred by
Indemnitee are secondary), (ii) be required to advance expenses incurred by Indemnitee, and (iii)
be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in
settlement to the extent legally permitted and as required by the terms of this Agreement and any
provision of the Bylaws or the Certificate of Incorporation of the Company (or any other agreement
between the Company and Indemnitee), without regard to any rights Indemnitee may have against the
Supplemental Indemnitor. The Company irrevocably waives, relinquishes and releases the
Supplemental Indemnitor from any and all claims against the Supplemental Indemnitor for
contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or
payment by the Supplemental Indemnitor on behalf of Indemnitee with respect to any claim for which
Indemnitee has sought indemnification from the Company shall affect the foregoing and the
Supplemental Indemnitor shall have a right of contribution or be subrogated to the extent of such
advancement or payment to all of the rights of recovery of Indemnitee against the Company. The
Supplemental Indemnitor is a third party beneficiary of the terms of this Section.



(d) Reliance as Safe Harbor. The Indemnitee shall be entitled to indemnification for
any action or omission to act undertaken (a) in good faith reliance upon the records of the Company
or any subsidiary, including its financial statements, or upon information, opinions, reports or
statements furnished to the Indemnitee by the officers or employees of the Company or any of its
subsidiaries in the course of their duties, or by committees of the Board or of any subsidiary, or
by any other person as to matters the Indemnitee reasonably believes are within such other person’s
professional or expert competence, or (b) on behalf of the Company or any subsidiary in furtherance
of the interests of the Company or any subsidiary in good faith in reliance upon, and in accordance
with, the advice of legal counsel or accountants, provided such legal counsel or accountants were
selected with reasonable care by or on behalf of the Company or any subsidiary. In addition, the
knowledge and/or actions, or failures to act, of any director, officer, agent or employee of the
Company or any subsidiary shall not be imputed to the Indemnitee for purposes of determining the
right to indemnity hereunder.


 


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4. Indemnification of Expenses of Successful Party. 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,
including the dismissal of any action without prejudice, the Company shall indemnify Indemnitee
against all expenses actually and reasonably incurred in connection with the investigation, defense
or appeal of such proceeding.



5. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of any expenses actually and reasonably
incurred by Indemnitee in the investigation, defense, settlement or appeal of a proceeding, but is
precluded by applicable law or the specific terms of this Agreement from obtaining indemnification
for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.



6. Advancement of Expenses. To the extent not prohibited by law, the Company shall advance
the expenses incurred by Indemnitee in connection with any proceeding, and such advancement shall
be made within twenty (20) days after the receipt by the Company of a statement or statements
requesting such advances (which shall include invoices received by Indemnitee in connection with
such expenses but, in the case of invoices in connection with legal services, any references to
legal work performed or to expenditures made that would cause Indemnitee to waive any privilege
accorded by applicable law shall not be included with the invoice). Advances shall be unsecured,
interest free and without regard to Indemnitee’s ability to repay the expenses. Advances shall
include any and all expenses actually and reasonably incurred by Indemnitee pursuing an action to
enforce Indemnitee’s right to indemnification under this Agreement, or otherwise and this right of
advancement, including expenses incurred preparing and forwarding statements to the Company to
support the advances claimed. Indemnitee acknowledges that the execution and delivery of this
Agreement shall constitute an undertaking providing that Indemnitee shall, to the fullest extent
required by law, repay the advance (without interest) if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement,
the Certificate of Incorporation, the Bylaws of the Company, applicable law or otherwise. No other
form of undertaking shall be required other than the execution of this Agreement. The right to
advances under this Section shall continue until final disposition of any proceeding, including any
appeal therein. This Section 6 shall not apply to any claim made by Indemnitee for which indemnity
is excluded pursuant to Section 10(b)..




7. Notice and Other Indemnification Procedures.



(a) Notification of Proceeding. Indemnitee will notify the Company in writing promptly upon
being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any proceeding or matter which may be subject to indemnification or
advancement of expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to Indemnitee under this
Agreement or otherwise.


 


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(b) Request for Indemnification and Indemnification Payments. Indemnitee shall notify the
Company promptly in writing upon receiving notice of any demand, judgment or other requirement for
payment that Indemnitee reasonably believes to be subject to indemnification under the terms of this Agreement, and shall request payment thereof by the
Company. The failure of Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to Indemnitee under this Agreement or otherwise to the extent that the
Company is not materially prejudiced by such failure to notify. Indemnification payments requested
by Indemnitee under Section 3 hereof shall be made by the Company no later than sixty (60) days
after receipt of the written request of Indemnitee. Claims for advancement of expenses shall be
made under the provisions of Section 6 hereof.



(c) Application for Enforcement. In the event the Company fails to make timely payments as
set forth in Section 6 or Section 7(b) above, Indemnitee shall have the right to apply to any court
of competent jurisdiction for the purpose of enforcing Indemnitee’s right to indemnification or
advancement of expenses pursuant to this Agreement. In such an enforcement hearing or proceeding,
the burden of proof shall be on the Company to prove that indemnification or advancement of
expenses to Indemnitee is not required under this Agreement or the Company’s Certificate of
Incorporation or Bylaws or permitted by applicable law. Any determination by the Company
(including the Board, stockholders or independent counsel) that Indemnitee is not entitled to
indemnification hereunder, shall not be a defense by the Company to the action nor create any
presumption that Indemnitee is not entitled to indemnification or advancement of expenses
hereunder.



(d) Indemnification of Certain Expenses. The Company shall indemnify Indemnitee against all
expenses incurred in connection with any hearing or proceeding under this Section 7 unless the
Company prevails in such hearing or proceeding on the merits in all material respects.



8. Assumption of Defense. In the event the Company shall be requested by Indemnitee to pay
the expenses of any proceeding, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, or to participate to the extent permissible in such proceeding, with
counsel reasonably acceptable to Indemnitee. Upon assumption of the defense by the Company and the
retention of such counsel by the Company, the Company shall not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that Indemnitee shall have the right to employ separate counsel in such
proceeding at Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s
counsel delivers a written notice to the Company stating that such counsel has reasonably concluded
that there may be a conflict of interest between the Company and Indemnitee in the conduct of any
such defense or the Company shall not, in fact, have employed counsel or otherwise actively pursued
the defense of such proceeding within a reasonable time, then in any such event the fees and
expenses of Indemnitee’s counsel to defend such proceeding shall be subject to the indemnification
and advancement of expenses provisions of this Agreement.


 


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9. Insurance. To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees or other fiduciaries of the
Company or of any subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for
any such director, officer, employee or other fiduciary under such policy or policies. If, at the
time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has D&O 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. If the Company is named as an insured under the D&O Insurance, then the
insurance program or policy shall include a “Priority of Payments” or “Order of Payments” clause
requiring coverage proceeds to be paid first to the insured who are natural persons.




10. Exceptions.



(a) Certain Matters. Any provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee on account of any
proceeding with respect to: (i) remuneration paid to Indemnitee if it is determined by final
judgment or other final adjudication that such remuneration was in violation of law (and, in this
respect, both the Company and Indemnitee have been advised that the Securities and Exchange
Commission believes 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 appropriate courts for adjudication, as indicated in Section 10(d) below);
(ii) a final judgment rendered against Indemnitee for an accounting, disgorgement or repayment of
profits made from the purchase or sale by Indemnitee of securities of the Company against
Indemnitee or in connection with a settlement by or on behalf of Indemnitee to the extent it is
acknowledged by Indemnitee and the Company that such amount paid in settlement resulted from
Indemnitee’s conduct from which Indemnitee received monetary personal profit, pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or other provisions of any federal, state or local statute or rules and regulations
thereunder; (iii) a final judgment or other final adjudication that Indemnitee’s conduct was in bad
faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only
to the extent of such specific determination); or (iv) on account of conduct that is established by
a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or
resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For
purposes of the foregoing sentence, a final judgment or other adjudication may be reached in either
the underlying proceeding or action in connection with which indemnification is sought or a
separate proceeding or action to establish rights and liabilities under this Agreement.



(b) Claims Initiated by Indemnitee. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated to indemnify or advance expenses to Indemnitee with respect to
proceedings or claims initiated or brought by Indemnitee against the Company or any subsidiary or
its respective directors, officers, employees or other fiduciaries and not by way of defense,
except (i) with respect to proceedings brought to establish or enforce a right to indemnification
under this Agreement or under any other agreement, provision in the Bylaws or the Company’s
Certificate of Incorporation or any subsidiary’s governing documents or applicable law, or (ii)
with respect to any other proceeding initiated by Indemnitee that is either approved by the Board
or where Indemnitee’s participation is required by applicable law. However, indemnification or
advancement of expenses may be provided by the Company in specific cases if the Board determines it
to be appropriate.


 


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(c) Unauthorized Settlements. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of a proceeding effected without the
Company’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent
to any proposed settlement; provided, however, that the Company may in any event decline to consent
to (or to otherwise admit or agree to any liability for indemnification hereunder in respect of)
any proposed settlement if the Company is also a party in such proceeding and determines in good
faith that such settlement is not in the best interests of the Company and its stockholders. The
Company shall not settle any action, claim or proceeding (in whole or in part) which would impose
any expense, judgment, fine, penalty or limitation of any kind on the Indemnitee which is not
subject to indemnification by the Company hereunder.



(d) Securities Act Liabilities. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or
otherwise act in violation of any undertaking appearing in and required by the rules and
regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any
registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph
(h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in
connection with any registration statement filed under the Act to submit the issue of the
enforceability of Indemnitee’s rights under this Agreement in connection with any liability under
the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any
final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall
supersede the provisions of this Agreement and to be bound by any such undertaking.



11. Nonexclusivity and Survival of Rights. The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which
Indemnitee may at any time be entitled under any provision of applicable law, the Company’s
Certificate of Incorporation, the Bylaws or other agreements, both as to action in Indemnitee’s
official capacity and Indemnitee’s action as an agent of the Company or any subsidiary, in any
court in which a proceeding is brought, and Indemnitee’s rights hereunder shall continue after
Indemnitee has ceased acting as an agent of the Company or any subsidiary and shall inure to the
benefit of the heirs, executors, administrators and assigns of Indemnitee. The obligations and
duties of the Company to Indemnitee under this Agreement shall be binding on the Company and its
successors and assigns until terminated in accordance with its terms. The Company shall require
any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business or assets of the Company, 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 had taken place.


 


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No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his or her corporate status prior to such amendment, alteration or repeal. To
the extent that a change in the DGCL, whether by statute or judicial decision, permits greater
indemnification, hold harmless or exoneration rights, or advancement of expenses than would be
afforded currently under the Company’s Certificate of Incorporation, the Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, by Indemnitee shall not prevent the concurrent assertion or employment of
any other right or remedy by Indemnitee.



12. Change in Control. If, at any time subsequent to the date of this Agreement, continuing
directors do not constitute a majority of the members of the Board, or there is otherwise a change
in control of the Company (as contemplated by Item 403(c) of Regulation S-K under the Securities
Act and the Exchange Act), then upon the request of Indemnitee, the Company shall cause the
determination of indemnification and advances required by Section 3 hereof to be made by
independent counsel. The fees and expenses incurred by independent counsel in making the
determination of indemnification and advances shall be borne solely by the Company. If independent
counsel is unwilling and/or unable to make the determination of indemnification and advances, then
the Company shall cause the indemnification and advances to be made by a majority vote or consent
of a committee of the Board consisting solely of continuing directors. For purposes of this
Agreement, a “continuing director” means either a member of the Board as of the date of this
Agreement or a person nominated to serve as a member of the Board by a majority of the
then-continuing directors.



13. Legal Action by the Company. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against an Indemnitee or an Indemnitee’s
estate, spouse, heirs, executors or personal or legal representatives after the expiration of five
(5) years from the date of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely filing of a legal
action within such five-year period; provided, however, that if any shorter period of limitations
is otherwise applicable to such cause of action, such shorter period shall govern.



14. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who, at
the request and expense of the Company, shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such rights.



15. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the
fullest extent now or hereafter permitted by law.


 


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16. Severability. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves 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, without limitation, 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 manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 14 hereof.



17. Amendment and Waiver. No supplement, modification, amendment, or cancellation of this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.



18. Specific Performance, Etc. The parties recognize that if any provision of this Agreement
is violated by the parties hereto, the Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the
Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief or any combination
of the foregoing as the Indemnitee may elect to pursue. The Company acknowledges that in the
absence of a waiver, a bond or undertaking may be required of Indemnitee by the court, and the
Company hereby waives any such requirement of such a bond or undertaking.



19. Notice. Except as otherwise provided herein, any notice or demand which, by the
provisions hereof, is required or which may be given to or served upon the parties hereto shall be
in writing and, if by telegram, telecopy or telex, shall be deemed to have been validly served,
given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be
deemed to have been validly served, given or delivered upon actual delivery and, if mailed, shall
be deemed to have been validly served, given or delivered three (3) business days after deposit in
the United States mail, as registered or certified mail, with proper postage prepaid and addressed
to the party or parties to be notified at the addresses set forth on the signature page of this
Agreement (or such other address(es) as a party may designate for itself by like notice). If to
the Company, notices and demands shall be delivered to the attention of the Secretary of the
Company.



20. Governing Law. This Agreement shall be governed exclusively by and construed according to
the laws of the State of Delaware, as applied to contracts between Delaware residents entered into
and to be performed entirely within Delaware.



21. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which together shall constitute but
one and the same Agreement. Only one such counterpart need be produced to evidence the existence
of this Agreement.



22. Headings. The headings of the sections of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the construction
hereof.


 


10









 





23. Entire Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written and oral, between the parties with respect to the
subject matter of this Agreement, including without limitation any existing agreement between the
Company and Indemnitee providing for indemnification of the type provided for herein; provided,
however, that (a) this Agreement is a supplement to and in furtherance of the Company’s Certificate
of Incorporation, the Bylaws, the DGCL and any other applicable law, and shall not be deemed a
substitute therefor, and does not diminish or abrogate any rights of Indemnitee thereunder, and (b)
in no event shall any of Indemnitee’s rights hereunder be diminished by reason of the fact that
this Agreement supersedes any other agreements, understandings or negotiations.


 


11









 





In Witness Whereof, the parties hereto have entered into this Agreement effective as
of the date first above written.



	 	 	 	 	 	 	 
	 	 	GSI Commerce, Inc.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Indemnitee
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 	 	Signature of Indemnitee
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 	 	Print or Type Name of Indemnitee
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 	 	Address for Notices