NVIDIA CORPORATION INDEMNITY AGREEMENT
Exhibit
10.1
NVIDIA
CORPORATION
INDEMNITY
AGREEMENT
THIS
AGREEMENT is
made and entered into this ·
day of
·,
2006 by
and between NVIDIA
Corporation,
a
Delaware corporation (the “Corporation”),
and
______________________ (“Agent”).
RECITALS
Whereas,
Agent
performs a valuable service to the Corporation in the capacity as
a director,
officer, employee or agent of the Corporation;
Whereas,
the
stockholders of the Corporation have adopted bylaws (the “Bylaws”)
and
the Amended and Restated Certificate of Incorporation of the Corporation
(the
“Certificate”)
providing for the indemnification of the directors, officers, employees
and
other agents of the Corporation, including persons serving at the
request of the
Corporation in such capacities with other corporations or enterprises,
as
authorized by the Delaware General Corporation Law, as amended
(the
“Code”);
Whereas,
the
Bylaws, the Certificate and the Code, by their non-exclusive
nature, permit
contracts between the Corporation and its directors, officers,
employees and
other agents with respect to indemnification of such persons;
and
Whereas,
in
order to induce Agent to continue to serve as a director, officer,
or employee
of the Corporation, the Corporation has determined and agreed
to enter into this
Agreement with Agent;
Now,
Therefore,
in
consideration of Agent's continued service as a director,
officer, employee or
agent of the Corporation that began on _________ ___, _____,
the parties hereto
agree as follows:
AGREEMENT
1. DEFINITIONS.
(a)
Expenses.
For
purposes of this Agreement, the term “Expenses”
shall
be broadly construed and shall include, without limitation,
all direct and
indirect costs of any type or nature whatsoever (including,
without limitation,
all attorneys’, witness, or other professional fees and related disbursements,
and other out-of-pocket costs of whatever nature),
actually and reasonably
incurred by Agent in connection with the investigation,
defense or appeal of a
Proceeding or establishing or enforcing a right to
indemnification under this
Agreement, the Code or otherwise, and amounts paid
in settlement by or on behalf
of Agent, but shall not include any judgments, fines
or penalties actually
levied against Agent for such individual’s violations of law.
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(b) Change
in Control.
For
purposes of this Agreement, a “Change
in Control”
shall
be deemed to have occurred if (i) any “person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934
(the “Act”)),
other than a trustee or other fiduciary holding securities
under an employee
benefit plan of the Corporation or a corporation owned
directly or indirectly by
the stockholders of the Corporation in substantially
the same proportions as
their ownership of stock of the Corporation, becomes
the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of
the Corporation representing more than twenty percent
(20%) of the total voting
power represented by the Corporation's then outstanding
Voting Securities; or
(ii) there is consummated a merger, consolidation or
similar transaction
involving (directly or indirectly) the Corporation
if, immediately after the
consummation of such merger, consolidation or similar
transaction, the
stockholders of the Corporation immediately prior thereto
do not own, directly
or indirectly, either (A) outstanding Voting Securities
representing more than
fifty percent (50%) of the combined outstanding voting
power of the surviving
entity in such merger, consolidation or similar transaction
or (B) more than
fifty percent (50%) of the combined outstanding voting
power of the parent of
the surviving entity in such merger, consolidation
or similar
transaction.
(c) Independent
Legal Counsel.
For
purposes of this Agreement, “Independent
Legal Counsel”
shall
mean an attorney or firm of attorneys, selected in
accordance with the
provisions of Section 5 hereof, who shall not have
otherwise performed services
for the Corporation (or for any entity that now or
in the future is controlled
by, controlling or under common control with the
Corporation) or Agent within
the last three years (other than with respect to
matters concerning the rights
of Agent under this Agreement, or of other indemnitees
under similar indemnity
agreements).
(d) Proceeding.
For
purposes of this Agreement, the term “Proceeding”
shall
mean and shall include, without limitation, any threatened,
pending, or
completed action, suit, arbitration, alternate dispute
resolution mechanism,
investigation, inquiry, administrative hearing, whether
brought in the right of
or by the Corporation or otherwise and whether of
a civil, criminal,
administrative or investigative nature, and whether
formal or informal in any
case, in which Agent was, is or will be involved
as a party or otherwise by
reason of the fact that: (i) Agent is or was a director,
officer, employee or
agent of the Corporation; (ii) Agent took an action
while acting as director,
officer, employee or agent of the Corporation; or
(iii) Agent is or was serving
at the request of the Corporation as a director,
officer, employee or agent of
another corporation, partnership, joint venture,
trust, employee benefit plan or
other enterprise, and in any such case described
above, whether or not serving
in any such capacity at the time any Expense is incurred
for which
indemnification, reimbursement, or advancement of
Expenses may be provided under
this Agreement.
(e) Voting
Securities.
For
purposes of this Agreement, "Voting
Securities"
shall
mean any securities of the Corporation that vote
generally in the election of
directors.
2. SERVICES
TO THE CORPORATION.
Agent
will serve, at the will of the Corporation or under
separate contract, if any
such contract exists, as a director, officer, or
employee of the Corporation or
as a director, officer or other fiduciary of an affiliate
of the Corporation
(including, but not limited to, any employee benefit
plan of the Corporation)
faithfully and to the best of Agent's ability so
long as Agent is duly elected
and qualified in accordance with the provisions of
the Bylaws or other
applicable charter documents of the Corporation or
such affiliate; provided,
however, that Agent may at any time and for any reason
resign from such position
(subject to any contractual obligation that Agent
may be subject to apart from
this Agreement) and that the Corporation or any affiliate
shall have no
obligation under this Agreement to continue Agent
in any such
position.
2
3. INDEMNITY
OF AGENT.
The
Corporation hereby agrees to hold harmless and
indemnify Agent to the fullest
extent authorized or permitted by the provisions
of the Bylaws, the Certificate
and the Code, as the same may be amended from time
to time (but, only to the
extent that such amendment permits the Corporation
to provide broader
indemnification rights than the Bylaws, the Certificate
or the Code permitted
prior to adoption of such amendment). These obligations
and the other
obligations of the Corporation in this Agreement
apply regardless of whether the
conduct giving rise to the obligations occurred
before or occur after the date
this Agreement is executed.
4. PARTIAL
INDEMNIFICATION.
Agent
shall be entitled under this Agreement to indemnification
by the Corporation for
a portion of the Expenses that Agent becomes
legally obligated to pay in
connection with any Proceeding even if not entitled
hereunder to indemnification
for the total amount thereof, and the Corporation
shall indemnify Agent for the
portion thereof to which Agent is entitled.
5. CHANGE
IN CONTROL.
The
Corporation agrees that if there is a Change
in Control of the Corporation then,
with respect to all matters thereafter arising
concerning the rights of Agent to
indemnification (including, but not limited
to, any right to advancement of
Expenses) under this Agreement, any other agreement
with the Corporation
providing for indemnification, the Certificate,
Bylaws and applicable law
(collectively, the “Indemnification
Provisions”)
as now
or hereafter in effect, Independent Legal Counsel
(as defined in Section 1
hereof) shall be selected by Agent and approved
by the Corporation (which
approval shall not be unreasonably withheld).
Such Independent Legal Counsel
shall render its written opinion to the Corporation
and Agent as to whether and
to what extent Agent would be permitted to
be indemnified under the
Indemnification Provisions prior to and after
the consummation of such Change in
Control and such opinion shall be binding upon
Agent and the Corporation. The
Corporation agrees to pay the reasonable fees
of the Independent Legal Counsel
referred to above and to fully indemnify such
counsel against any and all
Expenses arising out of or relating to this
Agreement or its engagement pursuant
hereto.
6. NOTIFICATION
AND DEFENSE OF CLAIM.
Not
later than thirty (30) days after receipt
by Agent of notice of the commencement
of any Proceeding, Agent 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 failure so
to notify the Corporation will not
relieve the Corporation from any liability
which it may have to Agent under this
Agreement or otherwise. With respect to any
such Proceeding as to which Agent
notifies the Corporation of the commencement
thereof:
(a) the
Corporation will be entitled to participate
therein at its own
expense;
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(b) except
as
otherwise provided below, the Corporation
may, at its option and jointly with
any other indemnifying party similarly
notified and electing to assume such
defense, assume the defense thereof,
with counsel reasonably satisfactory
to
Agent. After notice from the Corporation
to Agent of its election to assume the
defense thereof, the Corporation will
not be liable to Agent under this
Agreement for any Expenses subsequently
incurred by Agent in connection with
the
defense thereof except for reasonable
costs of investigation or otherwise as
provided below. Agent shall have the
right to employ separate counsel in such
Proceeding but the Expenses of such counsel
incurred after notice from the
Corporation of its assumption of the
defense thereof shall be at the expense
of
Agent; provided, however, that the Expenses
of Agent's separate counsel shall be
borne by the Corporation if (i) the employment
of counsel by Agent has been
authorized by the Corporation, (ii) Agent
reasonably shall have concluded that
there may be a conflict of interest between
the Corporation and Agent in the
conduct of the defense of such Proceeding,
or (iii) the Corporation in fact
shall not have employed counsel to assume
the defense of such Proceeding or
shall at any time have ceased to actively
pursue the defense thereof. The
Corporation shall not be entitled to
assume the defense of any Proceeding
brought by or on behalf of the Corporation
or as to which Agent shall have made
the conclusion provided for in clause
(ii) above; and
(c) the
Corporation shall not be liable to
indemnify Agent under this Agreement
for any
amounts paid in settlement of any Proceeding
effected without its written
consent, which shall not be unreasonably
withheld or delayed. The Corporation
shall be permitted to settle any Proceeding
except that it shall not settle any
Proceeding in any manner which would
impose any penalty or limitation on
Agent
without Agent's written consent, which
may be given or withheld in Agent's
sole
discretion.
7. EXPENSES.
Promptly
following request by Agent for the
advancement of Expenses, the Corporation
shall advance, prior to the final
disposition of any Proceeding, all
Expenses
incurred by Agent in connection with
such Proceeding upon receipt of an
undertaking by or on behalf of Agent
to repay such amounts if it shall
ultimately be determined by a final
judicial decision from which there
is no
further right of appeal that Agent
is not entitled to be
indemnified.
8. ENFORCEMENT.
Any
right
to indemnification or advances
granted by this Agreement to Agent
shall be
enforceable by or on behalf of
Agent in any court of competent
jurisdiction if
(a) the claim for indemnification
or advances is denied, in whole
or in part, or
(b) no disposition of such claim is
made within ninety (90) days of
request
therefor. Agent, in such enforcement
action, if successful in whole
or in part,
also shall be entitled to be paid
the Expense of prosecuting Agent's
claim.
Neither the failure of the Corporation
(including its Board of Directors
or its
stockholders) to have made a determination
prior to the commencement of such
enforcement action that indemnification
of Agent is proper in the circumstances,
nor an actual determination by
the Corporation (including its
Board of Directors
or its stockholders) that such
indemnification is improper shall
be a defense to
the action or create a presumption
that Agent is not entitled to indemnification
under this Agreement or otherwise.
4
9. INSURANCE.
(a) Unless
otherwise approved by the Board
of Directors prior to a Change
in Control, the
Corporation shall obtain and maintain
during the term of this Agreement
directors' and officers' liability
insurance (“D&O
Insurance”)
with
respect to which Agent shall be
named as an insured. Notwithstanding
any other
provision of this Agreement, the
Corporation shall not be obligated
to indemnify
the Agent for Expenses which have
been previously paid directly to
the Agent by
D&O Insurance. If the Corporation
has D&O Insurance in effect at the
time the Corporation receives from
Agent any notice of the commencement
of a
Proceeding, the Corporation shall
give prompt notice of the commencement
of such
Proceeding to the insurers in accordance
with the procedures set forth in
the
policy. The Corporation shall thereafter
take all reasonably necessary action
to
cause such insurers to pay, on
behalf of the Agent, all amounts
payable as a
result of such Proceeding in accordance
with the terms of such
policy.
(b) In
the
event that (i) the D&O Insurance policy is renewed
but the renewed policy
does not provide for prior act’s coverage, or (ii) the Corporation
obtains a new
D&O Insurance policy for any period
following the termination of
the prior
D&O Insurance, and such new D&O Insurance policy does not provide
for
prior act’s coverage, or (iii) the Corporation
does not renew the D&O
Insurance policy or obtain a
new D&O Insurance policy following
the
termination of a D&O Insurance policy, then unless
otherwise determined by
the Board of Directors, the Corporation
shall add to the D&O Insurance
policy or the applicable successor
D&O Insurance policy a run-off
endorsement (the “Endorsement”)
on the
existing D&O Insurance policy or the applicable
successor D&O Insurance
policy subject to the same terms
and conditions in all material
respects. Unless
otherwise approved by the Board
of Directors prior to the date
on which the
Endorsement is obtained, the
Endorsement shall be non-cancelable
and shall
provide for at least a six-year
extended coverage period for
any and all claims
covered under the D&O Insurance policy. The Corporation
shall pay all
premiums, commissions and other
costs or charges incurred in
obtaining the
Endorsement and shall promptly
deliver to Agent a Certificate
of Confirmation of
Insurance with respect to such
Endorsement.
10. SUBROGATION.
In the
event of payment under this Agreement,
the Corporation shall be subrogated
to
the extent of such payment to
all of the rights of recovery
of Agent, who shall
execute all documents required
and shall do all acts that may
be reasonably
necessary to secure such rights,
including the execution of such
documents
necessary to enable the Corporation
effectively to bring suit to
enforce such
rights.
11. NON-EXCLUSIVITY
AND SURVIVAL OF RIGHTS.
(a) All
agreements and obligations
of the Corporation contained
herein shall continue
during the period Agent is
a director, officer, employee
or other agent of the
Corporation (or is or was
serving at the request of
the Corporation as a
director, officer, employee
or other agent of another
corporation, partnership,
joint venture, trust, employee
benefit plan or other enterprise)
and shall
continue thereafter so long
as Agent shall be subject
to any possible
Proceeding. The benefits
hereunder shall inure to
the benefit of the heirs,
executors and administrators
and assigns of Agent. The
rights conferred on Agent
by this Agreement shall not
be exclusive of any other
right Agent may have or
hereafter acquire under any
statute, provision of the
Certificate or Bylaws,
agreement, vote of stockholders
or disinterested directors,
or otherwise, both
as to action in Agent's official
capacity and as to action
in another capacity
while holding office.
5
(b) The
obligations and duties of
the Corporation to Agent
under this Agreement shall
be
binding on the Corporation
and its successors and assigns
until terminated in
accordance with its terms.
The Corporation shall require
any successor (whether
direct or indirect, by purchase,
merger, consolidation or
otherwise) to the
Corporation or to all or
substantially all of the
business or assets of the
Corporation, expressly to
assume and agree to perform
this Agreement in the same
manner and to the same extent
that the Corporation would
be required to perform
if no such succession had
taken place.
(c) No
amendment, alteration or
repeal of this Agreement
or of any provision hereof
shall limit or restrict
any right of Agent under
this Agreement in respect
of
any action taken or omitted
by such Agent prior to
such amendment, alteration
or
repeal. To the extent that
a change in the Code, whether
by statute or judicial
decision, permits greater
indemnification or advancement
of Expenses than would
be afforded currently under
the Certificate, Bylaws
and this Agreement, it
is
the intent of the parties
hereto that Agent shall
enjoy by this Agreement
the
greater benefits so afforded
by such change. No right
or remedy herein conferred
is intended to be exclusive
of any other right or remedy,
and every other right
and remedy shall be cumulative
and in addition to every
other right and remedy
given hereunder or now
or hereafter existing at
law or in equity or otherwise.
The assertion or employment
of any right or remedy
hereunder, or otherwise,
by
Agent shall not prevent
the concurrent assertion
or employment of any other
right or remedy by Agent.
12. SEVERABILITY.
Each of
the provisions of this
Agreement is a separate
and distinct agreement
and
independent of the others,
so that if any provision
hereof shall be held
to be
invalid for any reason,
such invalidity contained
herein or unenforceability
shall not affect the
validity or enforceability
of the other provisions
hereof.
Furthermore, if this
Agreement shall be invalidated
in its entirety on any
ground, then the Corporation
nevertheless shall indemnify
Agent to the fullest
extent provided by the
Certificate, Bylaws,
the Code or any other
applicable
law.
13. 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.
14. AMENDMENT,
MODIFICATION, WAIVER
AND TERMINATION.
No
amendment, modification,
termination or cancellation
of this Agreement
shall be
effective unless
signed in writing
by both parties hereto,
provided, however,
that the Corporation
shall have the right
to amend, modify,
terminate or replace
this Agreement if:
(i) there is a change
in the Code or any
other applicable
law; or (ii) the
Corporation amends,
modifies, terminates
or replaces its form
of Indemnification
Agreement for directors,
officers, employees
and other agents
of the Corporation;
provided, that such
amended or modified
agreement or such
new agreement does
not diminish in any
material respect
the rights of Agent
hereunder. 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.
6
15. ENTIRE
AGREEMENT.
This
Agreement constitutes
the entire agreement
between the parties
with respect to
the subject matter
hereof and supersedes
all prior agreements,
understandings
and negotiations,
written and oral,
between the parties
with respect to
the
subject matter
of this Agreement;
provided, however,
that this Agreement
is a
supplement to and
in furtherance
of the Certificate,
Bylaws, the Code
and any
other applicable
law, and shall
not be deemed a
substitute therefore,
nor to
diminish or abrogate
any
rights of Agent thereunder.
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 Agent to the
fullest extent
now or
hereafter permitted
by law.
17. IDENTICAL
COUNTERPARTS.
This
Agreement may
be executed
in one or more
counterparts,
each of which
shall be
deemed for
all purposes
to be an original
but all of
which together
shall
constitute
this Agreement.
18. HEADINGS.
The
headings
of the sections
of this Agreement
are inserted
for convenience
only and
shall not
be deemed
to constitute
part of this
Agreement
or to affect
the
construction
hereof.
19. NOTICES.
All
notices,
requests,
demands
and other
communications
hereunder
shall be
in
writing
and shall
be deemed
to have
been duly
given (i)
upon delivery
if
delivered
by hand
to the
party to
whom such
communication
was directed
or (ii)
upon the
third business
day after
the date
on which
such communication
was
mailed
if mailed
by certified
or registered
mail with
postage
prepaid:
(a) If
to
Agent,
at the
address
indicated
on the
signature
page
hereof.
(b) If
to
the
Corporation,
to
NVIDIA
Corporation
Attn:
General
Counsel
0000
Xxx
Xxxxx
Xxxxxxxxxx
Xxxxx
Xxxxx,
Xxxxxxxxxx
00000
or
to
such
other
address
as
may
have
been
furnished
to
Agent
by
the
Corporation,
or
to
such
other
address
as
Agent
may
direct
in
writing
the
Corporation
to
use.
7
In
Witness
Whereof,
the
parties
hereto
have
executed
this
Agreement
on
and
as
of
the
day
and
year
first
above
written.
NVIDIA
Corporation
By:________________________________
Title:_______________________________
AGENT
___________________________________
(Signature)
Print
Name
and
Address:
___________________________________
8
