INDEMNITY AGREEMENT
Exhibit 10.1
INDEMNITY AGREEMENT
AGREEMENT, dated between Avnet, Inc., a New York corporation (the
“Corporation”) and (“Indemnitee”).
W I T N E S S E T H:
WHEREAS, Indemnitee currently serves and performs valuable services for the Corporation
as an officer or director of the Corporation or a subsidiary thereof and, as such, may be subject
to claims, actions, suits or proceedings arising as a result of such service; and
WHEREAS, the Corporation (i) has adopted By-Laws providing for the indemnification and
advancement of expenses by the Corporation of any director and officer to the full extent permitted
by law, and (ii) the Business Corporation Law of the State of New York (the “State Statute”) is not
exclusive of other rights of indemnification or advancement when authorized by an agreement
providing for such rights; and
WHEREAS, in order to induce Indemnitee to serve or continue to serve as an officer or director
of the Corporation or a subsidiary thereof, the Corporation has determined that it is in its best
interest to enter into this agreement;
NOW, THEREFORE, the parties hereto agree as follows:
FIRST: Indemnification. The Corporation hereby agrees to hold harmless and indemnify
Indemnitee, effective as of the date Indemnitee first became a director or officer of the
Corporation or a subsidiary thereof, or served in any other capacity of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise at the request of the
Corporation or a subsidiary thereof, from and against any and all judgments, fines, amounts paid in
settlement and expenses, including attorneys’ fees, incurred as a result of or in connection with
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative or as a result of or in connection with any appeal therein, whether
or not such action, suit or proceeding is by or in the right of the Corporation or any subsidiary
thereof to provide a judgment in its favor, including any action, suit or proceeding by or in the
right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise that the Indemnitee serves in any
capacity at the request of the Corporation, to which Indemnitee is, was or at any time becomes a
party, or is threatened to be made a party or as a result of or by reason of the fact that
Indemnitee is, was or at any time, becomes a director or officer of the Corporation or a subsidiary
thereof, or is or was serving or at any time serves such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, in any capacity, whether arising out of
any breach of Indemnitee’s fiduciary duty, under any state or federal law or otherwise, as a
director or officer of the Corporation or subsidiary or as a director, officer, employee or agent
of such other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise if Indemnitee acted in good
faith, for a purpose which Indemnitee reasonably believed to be in or (in the case of service
for another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) not opposed to, the best interests of the corporation, and, in criminal actions or
proceedings, in addition, had no reasonable cause to believe that his or her conduct was unlawful;
provided, however, that no indemnity pursuant to this Article FIRST shall be paid by the
Corporation
(1) | except to the extent the aggregate of losses to be indemnified exceeds the amount of such losses for which Indemnitee is actually paid pursuant to any insurance purchased and maintained by the Corporation for the benefit of Indemnitee; | ||
(2) | if judgment or other final adjudication establishes that the Indemnitee’s acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that Indemnitee personally gained in fact a financial profit or other advantage to which Indemnitee was not legally entitled; or | ||
(3) | if a final judgment by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. |
The termination of any such civil, criminal, administrative or investigative action, suit or
proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not act in good faith, for a purpose
which Indemnitee reasonably believed to be in or (in the case of service for another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise) not opposed to, the
best interests on the corporation, or that Indemnitee had reasonable cause to believe that his or
her conduct was unlawful. For purposes of this Agreement (i) the Corporation shall be deemed to
have requested Indemnitee to serve in a capacity with respect to an employee benefit plan where the
performance by Indemnitee of his or her duties to the Corporation or a subsidiary thereof also
imposes duties on, or otherwise involves services by, Indemnitee to the plan or participants or
beneficiaries of the plan; (ii) excise taxes assessed on Indemnitee with respect to any employee
benefit plan pursuant to applicable law shall be considered fines; and (iii) action taken or
omitted by Indemnitee with respect to an employee benefit plan in the performance of Indemnitee’s
duties for a purpose reasonably believed by Indemnitee to be either in the interest of the
Corporation or a subsidiary or in the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the best interests of the Corporation.
SECOND: Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee shall serve as a director or officer
of the Corporation or subsidiary thereof and thereafter so long as Indemnitee shall be subject to
any possible claim or threatened, pending or completed action, suit or proceeding, whether, civil,
criminal, administrative or investigative, by reason of the fact that Indemnitee was a director or
officer of the Corporation or subsidiary or served at the request of the Corporation in any
capacity in any other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise.
THIRD: Determination of Entitlement to Indemnification. Upon written request by
Indemnitee for indemnification pursuant to Article FIRST hereof, the entitlement of
Indemnitee to indemnification, to the extent not provided pursuant to the terms of this
Agreement, shall be determined by the following person or persons who shall be empowered to make
such determination: (a) the Board of Directors of the Corporation, acting by a quorum consisting
of directors who are not parties to the action, suit or proceeding with respect to which
indemnification is sought; or (b) if a quorum is not obtainable, or, even if obtainable, if a
quorum of directors who are not parties to the action, suit or proceeding with respect to which
indemnification is sought so directs, either by the Board of Directors upon the written opinion of
independent legal counsel, a copy of which shall be delivered to Indemnitee, or by the
Corporation’s shareholders. Such independent counsel shall be selected by the Board of Directors
and approved by Indemnitee. Upon failure of the Board of Directors to select such independent
counsel or upon failure of Indemnitee so to approve, such independent counsel shall be selected
upon application to a court of competent jurisdiction. Such determination of entitlement to
indemnification shall be made not later than 30 calendar days after receipt by the Corporation of a
written request for indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to Indemnitee. Any expenses
incurred by Indemnitee in connection with a request for indemnification or advancement of expenses
under this Agreement, or under any provision of the Corporation’s Certificate of Incorporation or
By-laws or any directors’ and officers’ liability insurance, shall be borne by the Corporation.
The Corporation hereby indemnifies Indemnitee for any such expense and agrees to hold Indemnitee
harmless therefrom irrespective of the outcome of the determination of Indemnitee’s entitlement to
indemnification. If the person making such determination shall determine that Indemnitee is
entitled to indemnification as to part (but not all) of the application for indemnification, such
person shall reasonably prorate such partial indemnification among the claims, issues or matters at
issue at the time of the determination. Notwithstanding anything to the contrary, in the event
that the Indemnitee is not a member of the Board of Directors or an Executive Officer of the
Corporation, the Board of Directors may delegate its responsibilities under this Article Third to
the Chief Executive Officer of the Corporation.
FOURTH: Presumptions and Effect of Certain Proceedings. The Secretary of the
Corporation shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in
writing the Board of Directors or such other person or persons empowered to make the determination
as provided in Article THIRD hereof that Indemnitee has made such request for indemnification.
Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Corporation shall have the burden of proof in making any
determination contrary to such presumption. If the person or persons so empowered to make such
determination fails to make the requested determination with respect to indemnification within 30
calendar days after receipt by the Corporation of such request, a requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud in the request for
indemnification.
FIFTH: Remedies of Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses. In the event that a determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made following a determination of
entitlement to indemnification pursuant to Articles THIRD and FOURTH hereof or, or if expenses are
not advanced pursuant to Article SEVENTH hereof, Indemnitee shall be entitled to final adjudication
in a court of competent jurisdiction of
entitlement to such indemnification or advancement. Alternatively, Indemnitee at Indemnitee’s
option may seek an award in an arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association, such award to be made within 60 days following the
filing of the demand for arbitration. The Corporation shall not oppose Indemnitee’s right to seek
any such adjudication or award in arbitration or any other claim. The determination in any such
judicial proceeding or arbitration shall be made de novo and Indemnitee shall not be prejudiced by
reason of a determination (if so made) pursuant to Article THIRD or FOURTH hereof that Indemnitee
is not entitled to indemnification. If a determination is made or deemed to have been made
pursuant to the terms of Article THIRD or FOURTH hereof hereof that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination and is precluded from
asserting that such determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Corporation further agrees to
stipulate in any such court or before any such arbitrator that the Corporation is bound by all the
provisions of this Agreement and is precluded from making any assertions to the contrary. If the
court or arbitrator shall determine that Indemnitee is entitled to any indemnification or
advancement of expenses hereunder, the Corporation shall pay all expenses actually and reasonably
incurred by Indemnitee in connection with such adjudication or award in arbitration (including, but
not limited to, any appeal therein).
SIXTH: Notification and Defense of Claim. Promptly after receipt by Indemnitee of
notice of the commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereof is to be made against the Corporation under this Agreement, notify the Corporation
of the commencement thereof; but the omission so to notify the Corporation will not relieve it from
any liability that it may have to Indemnitee otherwise than under this Agreement. With respect to
any such action, suit or proceeding as to which Indemnitee notifies the Corporation of the
commencement thereof:
A. The Corporation or subsidiary will be entitled to participate therein at its own expense;
and,
B. Except as otherwise provided below, to the extent that it may wish, the Corporation
jointly with any other indemnifying party similarly notified will be entitled to assume the defense
thereof, with counsel satisfactory to Indemnitee. After notice from the Corporation to Indemnitee
of its election so to assume the defense thereof, the Corporation will not be liable to Indemnitee
under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in
connection with the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ his or her own counsel in such action,
suit or proceeding but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of Indemnitee unless
(1) the employment of counsel by Indemnitee has been authorized by the Corporation in connection
with the defense of such action, (2) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnitee in the conduct of the defense of such
action, or (3) the Corporation shall not in fact have employed counsel to assume the defense of
such action, in each of which cases the fees and expenses of counsel shall be borne by the
Corporation (it being understood, however, that the Corporation shall not be liable for the
expenses for more than one counsel for Indemnitee in connection with any action or separate but
similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances). The Corporation shall not be entitled to assume the defense of any action,
suit or proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have
made the conclusion provided for in (2) above.
C. Anything in this Article SIXTH to the contrary notwithstanding, the Corporation shall not
be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Corporation shall not settle any action
or claim in any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent. Neither the Corporation nor Indemnitee will unreasonably withhold
their consent to any proposed settlement.
SEVENTH: Advancement and Repayment of Expenses. In the event of any threatened or
pending action, suit or proceeding that may give rise to a right of indemnification from the
Corporation to Indemnitee pursuant to this Agreement, the Corporation shall pay on demand, in
advance of the final disposition thereof expenses, other than (a) those expenses for which
Indemnitee is not entitled to indemnification pursuant to Article SIXTH hereof and (b) those
expenses for which Indemnitee has been paid under any insurance purchased and maintained by the
Corporation for the benefit of Indemnitee. The Corporation shall make such payments within 20
calendar days upon receipt of (1) a written request by Indemnitee for payment of such expenses, (2)
an undertaking by or on behalf of Indemnitee to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation hereunder, and (3)
satisfactory evidence as to the amount of such expenses. Indemnitee’s written certification
together with a copy of the statement paid or to be paid by Indemnitee shall constitute
satisfactory evidence as to the amount of such expenses.
EIGHTH: Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the maximum extent permitted by law, Indemnitee shall be entitled
to indemnification against all expenses actually and reasonably incurred or suffered by Indemnitee
or on Indemnitee’s behalf if Indemnitee appears as a witness or otherwise incurs legal expenses as
a result of or related to Indemnitee’s service as a director or officer of the Corporation in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which Indemnitee neither is, nor is threatened to be made, a
party.
NINTH: Enforcement.
A. The Corporation expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on the Corporation hereby in order to induce Indemnitee to become
or continue as an officer or director of the Corporation or any subsidiary and acknowledges that
Indemnitee is relying upon this Agreement in accepting such position or continuing in such
capacity.
B. In the event Indemnitee is required to bring any action to enforce rights or to collect
moneys due under this Agreement and is successful in such action, the Corporation shall reimburse
Indemnitee for all costs and expenses, including attorneys’ fees, incurred by Indemnitee in
connection with such action.
TENTH: Indemnification Hereunder Not Exclusive. The rights to indemnification and
advancement of expenses granted to Indemnitee under this Agreement shall not be deemed exclusive
of, or in limitation of, any rights to which Indemnitee may now or
hereafter be entitled under the State Statute, the Corporation’s Restated Certificate of
Incorporation or By-Laws, as now in effect or as may hereafter be amended, any agreement, any vote
of shareholders or directors, or otherwise.
ELEVENTH: Miscellaneous.
A. All communications hereunder shall be in writing and shall be sent by registered or
certified mail, return receipt requested; if intended for the Corporation, shall be addressed to
it, attention of its General Counsel, Xxxxx X. Xxxx, Esq., at Avnet, Inc., 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, XX 00000, or at such other address of which the Corporation shall have given notice to
Indemnitee in the manner herein provided; and if intended for Indemnitee shall be addressed to
Indemnitee at the address set forth below under his or her signature, or at such other address of
which Indemnitee shall have given notice to the Corporation in the manner herein provided.
B. In the event that any provision of this Agreement is invalid, illegal or unenforceable,
the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any
party or circumstances, it shall nevertheless remain applicable to all other parties and
circumstances.
C. This Agreement constitutes the entire understanding among the parties with respect to the
subject matter hereof and no waiver or modification of the terms hereof shall be valid unless in
writing signed by the party to be charged and only to the extent therein set forth. This Agreement
shall supersede and replace any prior indemnification agreements entered into by and between the
Corporation and Indemnitee and any such prior agreements shall be terminated upon execution of this
Agreement.
D. This Agreement shall be binding upon Indemnitee and upon the Corporation, its successors
and assigns and shall inure to the benefit of Indemnitee, his or her heirs, personal
representatives and assigns and to the benefit of the Corporation, its successors and assigns.
E. The captions appearing in this Agreement are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope and intent of this Agreement or any
of the provisions hereof.
F. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York applicable to contracts made and to be performed wholly within the State without
giving effect to conflict of laws principles thereof.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement to be effective as
of the day and year first above written.
AVNET, INC. | INDEMNITEE | |||||||
By: | ||||||||
Xxxxx X. Xxxx | ||||||||
Senior Vice President, Secretary | ||||||||
and General Counsel | Address: | |||||||