exv10w9






Exhibit 10.9




INDEMNITY AGREEMENT




     THIS INDEMNITY AGREEMENT (this “Agreement”) is made as of ____________, 2010, by and between
JWC ACQUISITION CORP., a Delaware corporation (the “Company”), and _______________ (“Indemnitee”).



RECITALS




     WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities 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 such corporations.



     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and other business
enterprises, the Company believes that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and with more exclusions. At the same
time, 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 Company or business
enterprise itself. The Amended and Restated Certificate of Incorporation (the “Charter”) and
Bylaws of the Company require indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to applicable provisions of the
Delaware General Corporation Law (“DGCL”). The Charter, 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 of directors, officers
and other persons with respect to indemnification, hold harmless, exoneration, advancement and
reimbursement rights.



     WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons.



     WHEREAS, 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, hold harmless, exonerate 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 protected against liabilities.



 









 





     WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and Bylaws of the
Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.



     WHEREAS, Indemnitee may not be willing to serve as an officer or director without adequate
protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to
serve, continue to serve and to take on additional service for or on behalf of the Company on the
condition that he be so indemnified.



     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:



TERMS AND CONDITIONS



1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve as an officer, director or
key employee of the Company for so long as Indemnitee is duly elected or appointed or until
Indemnitee tenders his resignation.



2. DEFINITIONS. As used in this Agreement:




     (a) References to “agent” shall mean any person who is or was a director, officer or employee
of the Company or a subsidiary of the Company or other person authorized by the Company to act for
the Company, to include such person serving in such capacity as a director, officer, employee,
fiduciary or other official of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company.



     (b) The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth
in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date
hereof.



     (c) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:




     (i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company representing
fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding
securities entitled to vote generally in the election of directors, unless (1) the change in
the relative Beneficial Ownership of the Company’s securities by any Person results solely
from a reduction in the aggregate number of outstanding shares of securities entitled to
vote generally in the election of directors, or (2) such acquisition was approved in advance
by the Continuing Directors (as defined below) and such acquisition would not constitute a
Change in Control under part (iii) of this definition;




     (ii) Change in Board of Directors. Individuals who, as of the date hereof, 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 of



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the directors then still in office who were directors on the date hereof or whose
election for nomination for election was previously so approved (collectively, the
“Continuing Directors”), cease for any reason to constitute at least a majority of the
members of the Board;




     (iii) Corporate Transactions. The effective date of a reorganization, merger or
consolidation of the Company (a “Business Combination”), in each case, unless, following
such Business Combination: (1) all or substantially all of the individuals and entities who
were the Beneficial Owners of securities entitled to vote generally in the election of
directors immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 51% of the combined voting power of the then outstanding securities of
the Company entitled to vote generally in the election of directors resulting from such
Business Combination (including, without limitation, a corporation which 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 immediately prior to such Business Combination, of the securities entitled to vote
generally in the election of directors; (2) no Person (excluding any corporation resulting
from such Business Combination) is the Beneficial Owner, directly or indirectly, of 15% or
more of the combined voting power of the then outstanding securities entitled to vote
generally in the election of directors of the surviving corporation except to the extent
that such ownership existed prior to the Business Combination; and (3) at least a majority
of the Board of Directors of the corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial agreement, or of the action
of the Board of Directors, providing for such Business Combination;




     (iv) Liquidation. The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements for the sale or
disposition by the Company of all or substantially all of the Company’s assets, other than
factoring the Company’s current receivables or escrows due (or, if such approval is not
required, the decision by the Board to proceed with such a liquidation, sale, or disposition
in one transaction or a series of related transactions); or




     (v) Other Events. There occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such reporting requirement.



     (d) “Corporate Status” describes the status of a person who is or was a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any
other Enterprise (as defined below) which such person is or was serving at the request of the
Company.



     (e) “Delaware Court” shall mean the Court of Chancery of the State of Delaware.



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     (f) “Disinterested Director” shall mean a director of the Company who is not and was not a
party to the Proceeding (as defined below) in respect of which indemnification is sought by
Indemnitee.



     (g) “Enterprise” shall mean the Company and any other corporation, constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger to which the
Company (or any of its wholly owned subsidiaries) is a party, 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 a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent.



     (h) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     (i) “Expenses” shall include all direct and indirect costs, fees and expenses of any type or
nature whatsoever, including, without limitation, all attorneys’ fees and costs, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private
investigators and professional advisors, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, fax transmission charges, secretarial services and all
other disbursements, obligations or expenses in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal
of, or otherwise participating in, a Proceeding (as defined below), including reasonable
compensation for time spent by the Indemnitee for which he or she is not otherwise compensated by
the Company or any third party. Expenses also shall include Expenses incurred in connection with
any appeal resulting from any Proceeding (as defined below), including without limitation the
principal, 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.



     (j) “Independent Counsel” shall mean a law firm or a member of a law firm with significant
experience 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 the Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements); or (ii) any other party to the
Proceeding (as defined below) 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.



     (k) References to “fines” shall include any excise tax assessed on Indemnitee with respect to
any employee benefit plan; references to “serving at the request of the Company” shall include any
service as a director, officer, employee, agent or fiduciary of the Company which imposes duties
on, or involves services by, such director, officer, employee, agent or fiduciary with respect to
an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have



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acted in a manner “not opposed to the best interests of the Company” as referred to in this
Agreement.




     (l) The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i)
the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any employment benefit
plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation
owned, directly or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company; and (iv) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or of a Subsidiary (as defined
below) of the Company or of 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.



     (m) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, mediation, 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 (including intentional or
unintentional tort claims), criminal, administrative or investigative nature, in which Indemnitee
was, is, will or might be involved as a party or otherwise by reason of the fact that Indemnitee is
or was a director or officer of the Company, by reason of any action (or failure to act) taken by
him or of any action (or failure to act) on his part while acting as a director or officer of the
Company, or by reason of the fact that he is or was serving at the request of the Company as a
director, officer, trustee, general partner, managing member, fiduciary, employee or agent of any
other Enterprise, in each case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.



     (n) The term “Subsidiary,” with respect to any Person, shall mean any corporation or other
entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.


3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. To the fullest extent permitted by applicable law, the
Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions
of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant
(as a witness or otherwise) in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, 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 or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his
conduct was unlawful.







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4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent permitted by
applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance
with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party
to or a participant (as a witness or otherwise) in any Proceeding by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified,
held harmless and exonerated against all Expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall be
made under this Section 4 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 any court in which the Proceeding was brought or the Delaware Court 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 indemnification, to be held harmless or to
exoneration.



5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL. Notwithstanding any
other provisions of this Agreement, to the extent that Indemnitee is a party to (or a participant
in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim,
issue or matter therein, in whole or in part, the Company shall, to the fullest extent permitted by
applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and
reasonably incurred by him 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, to the fullest extent permitted by
applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each successfully resolved claim,
issue or matter. If the Indemnitee is not wholly successful in such Proceeding, the Company also
shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter
related to any claim, issue, or matter on which the Indemnitee was successful. 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.



6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall, to the fullest extent permitted by
applicable law, be indemnified, held harmless and exonerated against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith.



7. ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS.




     (a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall, to the fullest
extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee
is a party to or threatened to be made a party to any Proceeding (including a



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Proceeding by or in the right of the Company to procure a judgment in its favor) 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 Proceeding. No indemnification, hold harmless or exoneration
rights shall be available under this Section 7(a) on account of Indemnitee’s conduct which
constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or is an
act or omission not in good faith or which involves intentional misconduct or a knowing violation
of the law.




     (b) Notwithstanding any limitation in Sections 3, 4, 5 or 7(a), the Company shall, to the
fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if
Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding
by or in the right of the Company to procure a judgment in its favor) 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 Proceeding.


8. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.




     (a) To the fullest extent permissible under applicable law, if the indemnification, hold
harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in
whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless
or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by
Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to
contribute to such payment, and the Company hereby waives and relinquishes any right of
contribution it may have at any time against Indemnitee.



     (b) The Company shall not enter into any settlement of any Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against Indemnitee.



     (c) The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from
any claims for contribution which may be brought by officers, directors or employees of the Company
other than Indemnitee who may be jointly liable with Indemnitee.


9. EXCLUSIONS. Notwithstanding any provision in this Agreement, the Company shall not be obligated
under this Agreement to make any indemnification, hold harmless or exoneration payment in
connection with any claim made against Indemnitee:




     (a) for which payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement, other indemnity provision or
otherwise;



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     (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of state statutory law or common law; or



     (c) except as otherwise provided in Sections 14(e)-(f) hereof, prior to a Change in Control,
in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized
the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides
the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the
powers vested in the Company under applicable law.


10. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.




     (a) Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent
not prohibited by applicable law, the Company shall pay the Expenses incurred by Indemnitee (or
reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection
with any Proceeding within ten (10) days after the receipt by the Company of a statement or
statements requesting such advances from time to time, prior to the final disposition of any
Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard
to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate
entitlement to be indemnified, held harmless or exonerated under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding
to enforce this right of advancement, including Expenses incurred preparing and forwarding
statements to the Company to support the advances claimed. To the fullest extent required by
applicable law, such payments of Expenses in advance of the final disposition of the Proceeding
shall be made only upon the Company’s receipt of an undertaking, by or on behalf of the Indemnitee,
to repay the advance to the extent that it is ultimately determined that Indemnitee is not entitled
to be indemnified by the Company under the provisions of this Agreement, the Charter, the Bylaws of
the Company, applicable law or otherwise. This Section 10(a) shall not apply to any claim made by
Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant
to Section 9.



     (b) The Company will be entitled to participate in the Proceeding at its own expense.



     (c) 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 on the Indemnitee without the
Indemnitee’s prior written consent.


11. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.




     (a) Indemnitee agrees to notify promptly the Company in writing 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, hold harmless or exoneration rights,
or advancement of Expenses covered hereunder. The failure of Indemnitee to



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so notify the Company shall not relieve the Company of any obligation which it may have to the
Indemnitee under this Agreement, or otherwise.




     (b) Indemnitee may deliver to the Company a written application to indemnify, hold harmless or
exonerate Indemnitee in accordance with this Agreement. Such application(s) may be delivered from
time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion.
Following such a written application for indemnification by Indemnitee, the Indemnitee’s
entitlement to indemnification shall be determined according to Section 12(a) of this Agreement.


12. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.




     (a) A determination, if required by applicable law, with respect to Indemnitee’s entitlement
to indemnification shall be made in the specific case by one of the following methods, which shall
be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board or (ii) by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee. The Company promptly will advise
Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to
indemnification, including a description of any reason or basis for which indemnification has been
denied. If it is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall
reasonably cooperate with the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity
upon reasonable advance request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or Expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making
such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.



     (b) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as
provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected
and certifying that the Independent Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the
Board, the Company shall give written notice to Indemnitee advising him of the identity of the
Independent Counsel so selected and certifying that the Independent Counsel so selected meets the
requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice
of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be,
a written objection to such selection; provided, however, that such objection may be asserted only
on the ground that the Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion.



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Absent a proper and timely objection, the person so selected shall act as Independent Counsel.
If such written objection is so made and substantiated, the Independent Counsel so selected may
not serve as Independent Counsel unless and until such objection is withdrawn or a court of
competent jurisdiction has determined that such objection is without merit. If, within twenty (20)
days after submission by Indemnitee of a written request for indemnification pursuant to Section
11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall
have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by the Delaware Court, and the
person with respect to whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).




     (c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to
fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


13. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.




     (a) In making a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 11(b) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the Company (including by its
directors or Independent Counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.



     (b) If the person, persons or entity empowered or selected under Section 12 of this Agreement
to determine whether Indemnitee is entitled to indemnification shall not have made a determination
within thirty (30) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a final judicial
determination that any or all such indemnification is expressly prohibited under applicable law;
provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an
additional fifteen (15) days, if the person, persons or entity making the determination with



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respect to entitlement to indemnification in good faith requires such additional time for the
obtaining or evaluating of documentation and/or information relating thereto.




     (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.



     (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee by the directors or
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise, its Board, any committee of the Board or any director, or on information or records
given or reports made to the Enterprise, its Board, any committee of the Board or any director, by
an independent certified public accountant or by an appraiser or other expert selected by the
Enterprise, its Board, any committee of the Board or any director. The provisions of this Section
13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in
this Agreement.



     (e) The knowledge and/or actions, or failure to act, of any other director, officer, trustee,
partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this Agreement.


14. REMEDIES OF INDEMNITEE.




     (a) In the event that (i) a determination is made pursuant to Section 12 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section
10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 12(a) of this Agreement within thirty (30) days after receipt by the Company of
the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5,
6, 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days after receipt by
the Company of a written request therefor, (v) a contribution payment is not made in a timely
manner pursuant to Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section
3 or 4 of this Agreement is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, or (vii) payment to Indemnitee pursuant to any hold
harmless or exoneration rights under this Agreement or otherwise is not made within ten (10) days
after receipt by the Company of a written request therefor, Indemnitee shall be entitled to an
adjudication by the Delaware Court to such indemnification, hold harmless, exoneration,
contribution or advancement rights. Alternatively, Indemnitee, at his option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. Except



11









 




as set forth herein, the provisions of Delaware law (without regard to its conflict of laws
rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to
seek any such adjudication or award in arbitration.




     (b) In the event that a determination shall have been made pursuant to Section 12(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 14, Indemnitee shall be presumed to be entitled to be indemnified, held harmless,
exonerated to receive advances of Expenses under this Agreement and the Company shall have the
burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to
receive advances of Expenses, as the case may be, and the Company may not refer to or introduce
into evidence any determination pursuant to Section 12(a) of this Agreement adverse to Indemnitee
for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this
Section 14, Indemnitee shall not be required to reimburse the Company for any advances pursuant to
Section 10 until a final determination is made with respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or lapsed).



     (c) If a determination shall have been made pursuant to Section 12(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.



     (d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.



     (e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted
by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted by
applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee (i) to enforce his rights under, or to recover
damages for breach of, this Agreement or any other indemnification, hold harmless, exoneration,
advancement or contribution agreement or provision of the Charter, or the Company’s Bylaws now or
hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any
person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately
is determined to be entitled to such indemnification, hold harmless or exoneration right,
advancement, contribution or insurance recovery, as the case may be (unless such judicial
proceeding or arbitration was not brought by Indemnitee in good faith).



     (f) Interest shall be paid by the Company to Indemnitee at the legal rate under Delaware law
for amounts which the Company indemnifies, holds harmless or exonerates, or is



12









 




obliged to indemnify, hold harmless or exonerate for the period commencing with the date on
which Indemnitee requests indemnification, to be held harmless, exonerated, contribution,
reimbursement or advancement of any Expenses and ending with the date on which such payment is made
to Indemnitee by the Company.



15. SECURITY. Notwithstanding anything herein to the contrary, to the extent requested by the
Indemnitee and approved by the Board, the Company may at any time and from time to time provide
security to the Indemnitee for the Company’s obligations hereunder through an irrevocable bank line
of credit, funded trust or other collateral. Any such security, once provided to the Indemnitee,
may not be revoked or released without the prior written consent of the Indemnitee.



16. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.




     (a) The rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter,
the Company’s Bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. 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 Proceeding
(regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or
related to, any action taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in applicable law, 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 Charter, the Company’s Bylaws or
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, shall not prevent the concurrent assertion or employment of any other
right or remedy.



     (b) The DGCL, the Charter and the Company’s Bylaws permit the Company to purchase and maintain
insurance or furnish similar protection or make other arrangements including, but not limited to,
providing a trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf
of Indemnitee against any liability asserted against him or incurred by or on behalf of him or in
such capacity as a director, officer, employee or agent of the Company, or arising out of his
status as such, whether or not the Company would have the power to indemnify him against such
liability under the provisions of this Agreement or under the DGCL, as it may then be in effect.
The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in
any way limit or affect the rights and obligations of the Company or of the Indemnitee under this
Agreement except as expressly provided herein, and the execution and delivery of this Agreement by
the Company and the Indemnitee shall not in any way limit or affect the rights and obligations of
the Company or the other party or parties thereto under any such Indemnification Arrangement.



13









 





     (c) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees, or agents of the Company or of any other Enterprise which such person serves at the
request of the Company, 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,
trustee, partner, managing member, fiduciary, employee or agent under such policy or policies. If,
at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice 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 such policies.



     (d) In the event of any 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 shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.



     (e) The Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other Enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification, hold harmless or
exoneration payments or advancement of expenses from such Enterprise. Notwithstanding any other
provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce,
offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement,
contribution or insurance coverage among multiple parties possessing such duties to Indemnitee
prior to the Company’s satisfaction and performance of all its obligations under this Agreement,
and (ii) the Company shall perform fully its obligations under this Agreement without regard to
whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold
harmless, exoneration, contribution or insurance coverage rights against any person or entity other
than the Company.


17. DURATION OF AGREEMENT. All agreements and obligations of the Company contained herein shall
continue during the period Indemnitee serves as a director or officer of the Company or as a
director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which
Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee
shall be subject to any possible Proceeding (including any rights of appeal thereto and any
Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of his
Corporate Status, whether or not he is acting in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement.



18. SEVERABILITY. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity, legality and


14









 






enforceability of the remaining provisions of this Agreement (including, without limitation, each
portion of any Section, paragraph or sentence of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.



19. ENFORCEMENT AND BINDING EFFECT.




     (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer or key employee of the Company.



     (b) Without limiting any of the rights of Indemnitee under the Charter or Bylaws of the
Company as they may be amended from time to time, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties hereto with respect
to the subject matter hereof.



     (c) The indemnification, hold harmless, exoneration and advancement of expenses rights
provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the
parties hereto and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent of the Company or of any other Enterprise at the Company’s
request, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs,
devisees, executors and administrators and other legal representatives.



     (d) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance satisfactory to
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 had taken
place.



     (e) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking, among other things, injunctive relief
and/or specific performance hereof, without any necessity of showing actual



15









 




damage or irreparable harm and that by seeking injunctive relief and/or specific performance,
Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be
entitled. The Company and Indemnitee further agree that Indemnitee shall be entitled to such
specific performance and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking
in connection therewith. 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.



20. MODIFICATION AND WAIVER. No supplement, modification or amendment 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 provisions of this
Agreement nor shall any waiver constitute a continuing waiver.



21. NOTICES. All notices, requests, demands and other communications under this Agreement shall be
in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for
by the party to whom said notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third (3rd) business day after the date
on which it is so mailed:




     (a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the Company.



     (b) If to the Company, to:


JWC Acquisition Corp.

111 Huntington Avenue

Suite 2900

Boston, Massachusetts 02199




     or to any other address as may have been furnished to Indemnitee in writing by the Company.


22. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in accordance with, the laws of the State
of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration
commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee
hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or
in connection with this Agreement shall be brought only in the Delaware Court and not in any other
state or federal court in the United States of America or any court in any other country; (b)
consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement; (c) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court; and (d) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a
jury trial.







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23. IDENTICAL 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
one and the same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this Agreement.



24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.



25. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs,
executors or personal or legal representatives after the expiration of two 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
two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.



26. ADDITIONAL ACTS. If for the validation of any of the provisions in this Agreement any act,
resolution, approval or other procedure is required, the Company undertakes to cause such act,
resolution, approval or other procedure to be affected or adopted in a manner that will enable the
Company to fulfill its obligations under this Agreement.




[SIGNATURE PAGE FOLLOWS]








17









 








     IN WITNESS WHEREOF, the parties hereto have caused this Indemnity Agreement to be signed as of
the day and year first above written.



	 	 	 	 	 
	 	JWC ACQUISITION CORP.

 	 
	 	By:  	 	 
	 	 	Adam L. Suttin 	 
	 	 	President 	 
	 



	 	 	 	 	 
	 	INDEMNITEE

 	 
	 	
 	 
	 	Name:  	 	 
	 	Address: