INDEMNITY AGREEMENT
Exhibit 10.31
This Indemnity Agreement, dated as of [ ], is made by and between Trident
Microsystems, Inc., a Delaware corporation (the “Company”), and [ ] (the
“Indemnitee”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant to
serve as directors, officers or agents of corporations unless they are protected by comprehensive
liability insurance or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such directors, officers and other agents.
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors,
officers and agents with adequate, reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to take.
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or settlement of such
litigation are often beyond the personal resources of directors, officers and other agents.
D. The Company believes that it is unfair for its directors, officers, employees and agents
and the directors, officers, employees and agents of its subsidiaries to assume the risk of huge
judgments and other expenses which may occur in cases in which the director, officer, employee or
other agent received no personal profit and in cases where the director, officer, employee or other
agent was not culpable.
E. The Company recognizes that the issues in controversy in litigation against a director,
officer or other agent of a corporation, such as the Company or a subsidiary of the Company, are
often related to the knowledge, motives and intent of such director, officer or agent, that the
director, officer or agent is usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters, and that the long period of time which usually
elapses before the trial or other disposition of such litigation often extends beyond the time that
the director, officer or agent can reasonably recall such matters and may extend beyond the normal
time for retirement for such director, officer or agent, with the result that the director, officer
or agent, after retirement or in the event of his or her death, the director’s or officer’s spouse,
heirs, executors or administrators, may be faced with limited ability and undue hardship in
maintaining an adequate defense, which may discourage such a director, officer or agent from
serving in that position.
F. Based upon their experience as business managers, the Board of Directors of the Company
(the “Board”) has concluded that, to retain and attract talented and experienced
individuals to serve as directors, officers, employees and agents of the Company and its
subsidiaries and to encourage such individuals to take the business risks necessary for the
1
success of the Company and its subsidiaries, it is necessary for the Company to contractually
indemnify its directors, officers, employees and other agents to the maximum extent permitted by
law.
G. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized (“Section 145”), empowers the Company to indemnify its directors, officers,
employees and agents by agreement and to indemnify persons who serve, at the request of the
Company, as the directors, officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Section 145 is not exclusive.
H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director, officer, employee or agent of the Company and/or one or more subsidiaries of the Company
free from undue concern for claims for damages arising out of or related to such services to the
Company and/or one or more subsidiaries of the Company.
I. The Indemnitee is willing to serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that the Indemnitee is furnished the indemnity provided for
herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent. For the purposes of this Agreement, an “Agent” of the Company means any
person who is or was a director, officer, employee or other agent of the Company or a subsidiary of
the Company; or is or was serving at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company as a director, officer, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise;
or was a director, officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Company or a subsidiary of the Company, or was a director, officer,
employee or agent of another enterprise at the request of, for the convenience of, or to represent
the interests of such predecessor corporation. For avoidance of doubt, the Indemnitee’s service as
a trustee of an employee benefits plan sponsored by the Company or one of its subsidiaries (e.g.,
the Company’s 401K Plan) will constitute acting as an Agent for purposes of this Agreement.
(b) Expenses. For purposes of this Agreement, “Expenses” include all out-of-pocket
costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and
related disbursements), actually and reasonably incurred by the Indemnitee in connection with
either the investigation, defense or appeal of a proceeding or establishing or enforcing a right to
indemnification under this Agreement, Section 145 or otherwise; provided, however, that “expenses”
shall not include any judgments, fines, ERISA excise taxes or penalties, or amounts paid in
settlement of a Proceeding.
2
(c) Independent Counsel. For the purposes of this Agreement, “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 years has been,
retained to represent: (i) the Company or the 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 giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement.
The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(d) Proceeding. For the purposes of this Agreement, a “Proceeding” means any
threatened, pending, or completed action, suit or other proceeding, whether civil, criminal,
administrative or investigative.
(e) Subsidiary. For purposes of this Agreement, a “Subsidiary” means any corporation
of which more than 50% of the outstanding voting securities is owned directly or indirectly by the
Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries,
including without limitation any branch or representative office thereof, or any similar corporate
form recognized in jurisdictions outside the United States.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an
Agent of the Company, at its will (or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an Agent of the Company, so long as the Indemnitee is duly
appointed or elected and qualified in accordance with the applicable provisions of the Bylaws of
the Company or any subsidiary of the Company or until such time as the Indemnitee tenders his or
her resignation in writing; provided, however, that nothing contained in this Agreement is intended
to create any right to continued employment by the Indemnitee.
3. Liability Insurance.
(a) Maintenance of D&O Insurance. The Company hereby covenants and agrees that, so
long as the Indemnitee shall continue to serve as an Agent of the Company and thereafter so long as
the Indemnitee shall be subject to any possible Proceeding by reason of the fact that the
Indemnitee was an Agent of the Company, the Company, subject to Section 3(c), shall promptly obtain
and maintain in full force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) in reasonable amounts from established and reputable insurers.
(b) Rights and Benefits. In all policies of D&O Insurance, the Indemnitee shall
qualify as an insured in such a manner as to provide the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company’s independent directors (as defined by
the insurer), if the Indemnitee is such an independent director; of the Company’s non-independent
directors if the Indemnitee is not an independent director; of the Company’s
3
officers, if the Indemnitee is an officer of the Company; or of the Company’s key employees,
if the Indemnitee is not an officer or director but is a key employee.
(c) Limitation on Required Maintenance of D&O Insurance. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company
determines in good faith that: such insurance is not reasonably available; the premium costs for
such insurance are disproportionate to the amount of coverage provided; the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit; the Indemnitee is
covered by similar insurance maintained by a subsidiary of the Company; the Company is to be
acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts by
the Indemnitee; or the Company is to be acquired and D&O Insurance will be maintained by the
acquirer that covers pre-closing acts by the Indemnitee.
4. Mandatory Indemnification. Subject to the terms of this Agreement:
(a) Third Party Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in the right of the
Company) by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason
of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify
the Indemnitee against any and all Expenses and liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement)
actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of such Proceeding, provided the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company and its stockholders, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any proceeding by or in the right of the Company by reason of the
fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not
done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all
Expenses actually and reasonably incurred by him in connection with the investigation, defense,
settlement, or appeal of such proceeding, provided the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company and its stockholders; except that no indemnification under this Subsection 4(b) shall be
made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally
adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the
extent that the Delaware Court of Chancery or the court in which such Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such
amounts which the Delaware Court of Chancery or such other court shall deem proper.
(c) Actions where Indemnitee is Deceased. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any proceeding by reason of the fact that the
Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the
Indemnitee in any such capacity, and if, prior to, during the pendency of or after completion
4
of such Proceeding, the Indemnitee is deceased, the Company shall indemnify the Indemnitee’s
heirs, executors and administrators against any and all Expenses and liabilities of any type
whatsoever to the extent the Indemnitee would have been entitled to indemnification pursuant to
this Agreement were the Indemnitee still alive.
(d) Limitations. Notwithstanding the foregoing, the Company shall not be obligated to
indemnify the Indemnitee for Expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) for
which payment is actually made to or on behalf of Indemnitee under an insurance policy, or under a
valid and enforceable indemnity clause, by-law or agreement, but only if the Indemnitee is actually
indemnified or advanced Expenses by any such third party, and then only for so long as the
Indemnitee is not required to disgorge the amounts so received.
5. Indemnification for Expenses in a Proceeding in Which the Indemnitee is Wholly or
Partly Successful. Notwithstanding any other provisions of this Agreement, to the extent that
the 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 indemnify the Indemnitee against all Expenses actually and reasonably incurred by him
in connection therewith. If the Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify the Indemnitee against (a) all Expenses
actually and reasonably incurred by the Indemnitee or on his or her behalf in connection with each
successfully resolved claim, issue or matter and (b) any claim, issue or matter related to any such
successfully resolved claim, issue or matter. For purposes of this section and without limitation,
the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that the Indemnitee is a witness in any Proceeding to which the
Indemnitee is not a party by reason of the fact that the Indemnitee is or was an Agent of the
Company, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred
by him or her or on his or her behalf in connection therewith.
7. Mandatory Advancement of Expenses. Subject to the terms of this Agreement and
following notice pursuant to Section 7(a) below, the Company shall advance all Expenses incurred by
the Indemnitee in connection with the investigation, defense, settlement or appeal of any
Proceeding to which the Indemnitee is a party or is threatened to be made a party by reason of the
fact that the Indemnitee is or was an Agent of the Company (unless there has been a final
determination that the Indemnitee is not entitled to indemnification for such expenses). The
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined pursuant to Section 9 hereof that the Indemnitee is not entitled to
be indemnified by the Company as authorized hereby. The advances to be made hereunder shall be
paid by the Company to the Indemnitee within twenty (20) days following delivery of a written
request therefor by the Indemnitee to the Company. In the event that the Company fails to pay
expenses as incurred by the Indemnitee as required by this paragraph, Indemnitee may seek mandatory
injunctive relief from any court having jurisdiction to require the Company to
5
pay expenses as set forth in this paragraph. If Indemnitee seeks mandatory injunctive relief
pursuant to this paragraph, it shall not be a defense to enforcement of the Company’s obligations
set forth in this paragraph that Indemnitee has an adequate remedy at law for damages.
8. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company
a written request therefor. Promptly after receipt by the Indemnitee of notices of the
commencement or the threat of commencement of any Proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company of the commencement or threat of commencement thereof. If, at
the time of the receipt of a notice of the commencement of a proceeding pursuant to this Section
8(a), 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
prospective 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.
(b) In the event the Company shall be obligated to pay the expenses of any Proceeding against
the Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by the Indemnitee, upon the delivery to the Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same Proceeding, provided that (i) the Indemnitee shall have the right to
employ the Indemnitee’s counsel in any such Proceeding at the Indemnitee’s expense; and (ii) if (A)
the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense or (C) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding, the fees and expenses of the
Indemnitee’s counsel shall be at the expense of the Company.
9. Procedure Upon Application for Indemnification.
(a) To the extent the Indemnitee has been successful on the merits or otherwise in defense of
any Proceeding referred to in Sections 4(a), 4(b), 4(c) or 4(d) of this Agreement or in the defense
of any claim, issue or matter described therein, the Company shall indemnify the Indemnitee against
expenses actually and reasonably incurred by the Indemnitee in connection with the investigation,
defense or appeal of such Proceeding.
(b) Upon written request by the Indemnitee for indemnification pursuant to Section 8(a), a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made in the specific case by an Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to the Indemnitee and, if it is so determined that the Indemnitee
is entitled to indemnification, payment to the Indemnitee shall be
6
made within ten (10) days after such determination. The Indemnitee shall cooperate with the
Independent Counsel making such determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such counsel upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from disclosure and
which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by the Indemnitee in so
cooperating with the Independent Counsel shall be borne by the Company (irrespective of the
determination as to the Indemnitee’s entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold the Indemnitee harmless therefrom.
(c) The Independent Counsel shall be selected by the Indemnitee. The Company may, within ten
(10) days after written notice of such selection, deliver to the Indemnitee 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 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. 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 has determined that such objection is without merit.
If, within twenty (20) days after the later of submission by the Indemnitee of a written request
for indemnification pursuant to Section 8(a) hereof, and the final disposition of the Proceeding,
including any appeal therein, no Independent Counsel shall have been selected and not objected to,
the Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company to the selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under Section 9(a) hereof. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 13(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).
10. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to the Indemnitee’s entitlement to indemnification
hereunder, the Independent Counsel making such determination shall presume that the Indemnitee is
entitled to indemnification under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 8(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making by the Independent
Counsel of any determination contrary to that presumption. Neither the failure of the Company or of
the 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 the
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
or by the Independent Counsel that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
7
(b) The termination of any proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Indemnitee to indemnification or create a presumption that the
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 the
Indemnitee had reasonable cause to believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, the Indemnitee shall be deemed to have
acted in good faith if the Indemnitee’s action is based on the records or books of account of the
Company, including financial statements, or on information supplied to the Indemnitee by the
officers of the Company in the course of their duties, or on the advice of legal counsel for the
Company or the Board or counsel selected by any committee of the Board or on information or records
given or reports made to the Company by an independent certified public accountant or by an
appraiser, investment banker or other expert selected with reasonable care by the Company or the
Board or any committee of the Board. The provisions of this Section 10(c) shall not be deemed to
be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed
to have met the applicable standard of conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Company shall not be imputed to the Indemnitee for purposes of determining the
right to indemnification under this Agreement.
11. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to the
Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, unless (i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board, (iii) such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in the Company under the General
Corporation Law of Delaware or (iv) the proceeding is brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as required under
Section 145;
(b) Lack of Good Faith. To indemnify the Indemnitee for any Expenses incurred by the
Indemnitee with respect to any Proceeding instituted by the Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such Proceeding was not made in good faith or was frivolous;
(c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a Proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld;
8
(d) Accounting of Profits. To indemnify the Indemnitee for an accounting of profits
made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the
Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of state statutory law or common law; or
(e) Payments Contrary to Law. To indemnify or advance Expenses to the Indemnitee for
which payment is prohibited by applicable law.
12. Non-exclusivity. The provisions for indemnification and advancement of Expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to action in the Indemnitee’s official capacity and to action in another capacity while occupying
the Indemnitee’s position as an Agent of the Company, and the Indemnitee’s rights hereunder shall
continue after the Indemnitee has ceased acting as an Agent of the Company and shall inure to the
benefit of the heirs, executors and administrators of the Indemnitee.
13. Enforcement.
(a) Subject to Section 13(e), in the event that (i) a determination is made pursuant to
Section 9 of this Agreement that the Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section
9(a) of this Agreement within sixty (60) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 or the last
sentence of Section 9(a) of this Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification pursuant to Section 4 of this Agreement
is not made within ten (10) days after a determination has been made that the Indemnitee is
entitled to indemnification, the Indemnitee shall be entitled to an adjudication by a court of his
or her entitlement to such indemnification or advancement of expenses. Alternatively, the
Indemnitee, at his or her 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.
The Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which the Indemnitee first has the right to commence such
Proceeding pursuant to this Section 13(a); provided, however, that the foregoing
clause shall not apply in respect of a proceeding brought by the Indemnitee to enforce his or her
rights under Section 5 of this Agreement. The Company shall not oppose the 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 9(a) of this
Agreement that the Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 13 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section
13, the Company shall have the burden of proving the Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be.
9
(c) If a determination shall have been made pursuant to Section 9(a) of this Agreement that
the Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 13, absent (i) a
misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to
make the 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 13 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. The Company shall
indemnify the Indemnitee against any and all Expenses and, if requested by the Indemnitee, shall
(within ten (10) days after receipt by the Company of a written request therefor) advance, to the
extent not prohibited by law, such Expenses to the Indemnitee, which are incurred by the Indemnitee
in connection with any action brought by the Indemnitee for indemnification or advancement of
Expenses from the Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether the Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of Expenses or insurance recovery,
as the case may be, in the suit for which indemnification or advances is being sought.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.
14. Subrogation. In the event the Company is obligated to make a payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery under an insurance policy or any other indemnity agreement covering the Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
15. Survival of Rights.
(a) All agreements and obligations of the Company contained herein shall continue during the
period the Indemnitee is an Agent of the Company and shall continue thereafter so long as the
Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit
or Proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason
of the fact that the Indemnitee was serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company (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.
10
16. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the
fullest extent now or hereafter permitted by law including those circumstances in which
indemnification would otherwise be discretionary.
17. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the 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 (ii) 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 16 hereof.
18. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of 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.
19. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted
for by the party addressee or (ii) if mailed by certified or registered mail with postage prepaid,
on the third business day after the mailing date. Addresses for notice to either party are as
shown on the signature page of this Agreement, or as subsequently modified by written notice.
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.
The parties hereto have entered into this Indemnity Agreement effective as of the date first
above written.
| THE COMPANY: | ||||||
| TRIDENT MICROSYSTEMS, INC. | ||||||
| By | ||||||
| Title | ||||||
| Address 0000 Xxxxxxx Xxxxx | ||||||
| Xxxxx Xxxxx, XX 00000-0000 | ||||||
11
| INDEMNITEE: | ||||||
| [NAME] | ||||||
| Address | ||||||
12
