OFFICER INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Officer Indemnification Agreement, dated as of , (this “Agreement”),
is made by and between Xxxx Microproducts Inc., a California corporation (the “Company”), and
(“Indemnitee”).
RECITALS:
A. Section 300 of the California Corporations Code provides that the business and affairs of a
corporation shall be managed by or under the direction of its board of directors, and Section 312
thereof authorizes the board of directors to appoint officers of the corporation.
B. By virtue of the managerial prerogatives vested in the directors of a California
corporation and the delegation of the management of the corporation to officers, directors and
officers act as fiduciaries of the corporation and its stockholders.
C. Thus, it is critically important to the Company and its stockholders that the Company be
able to attract and retain the most capable persons reasonably available to serve as directors and
officers of the Company.
D. In recognition of the need for corporations to be able to induce capable and responsible
persons to accept positions in corporate management, California law authorizes (and in some
instances requires) corporations to indemnify their directors and officers, and further authorizes
corporations to purchase and maintain insurance for the benefit of their directors and officers.
E. The California courts, as well as courts of other states have recognized that
indemnification by a corporation serves the dual policies of (1) allowing corporate officials to
resist unjustified lawsuits, secure in the knowledge that, if vindicated, the corporation will bear
the expense of litigation and (2) encouraging capable women and men to serve as corporate directors
and officers, secure in the knowledge that the corporation will absorb the costs of defending their
honesty and integrity.
F. The number of lawsuits challenging the judgment and actions of directors and officers of
corporations, the costs of defending those lawsuits, and the threat to their personal assets have
all materially increased over the past several years, chilling the willingness of capable women and
men to undertake the responsibilities imposed on corporate directors and officers.
G. Federal legislation and rules adopted by the Securities and Exchange Commission and the
national securities exchanges have imposed additional disclosure and corporate governance
obligations on officers of public companies and have exposed such officers to new and substantially
broadened civil liabilities.
H. These legislative and regulatory initiatives have also exposed officers of public companies
to a significantly greater risk of criminal proceedings, with attendant defense costs and potential
criminal fines and penalties.
I. Under California law, an officer’s right to be reimbursed for the costs of defense of
criminal actions, whether such claims are asserted under state or federal law, does not depend upon
the merits of the claims asserted against the officer and is separate and distinct from any right
to indemnification the officer may be able to establish, and indemnification of the officer against
criminal fines and penalties is permitted if the officer satisfies the applicable standard of
conduct.
J. Indemnitee is, or has agreed to become, an officer of the Company and his/her willingness
to serve in such capacity is predicated, in part, upon the Company’s willingness to indemnify
him/her in accordance with the principles reflected above, to the fullest extent permitted by the
laws of the state of California, and upon the other undertakings set forth in this Agreement.
K. Therefore, in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee’s continued service as an officer of the
Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in
order to provide such protection pursuant to express contract rights (intended to be enforceable
irrespective of, among other things, any amendment to the Company’s articles of incorporation or
bylaws (collectively, the “Constituent Documents”), any change in the composition of the Company’s
Board of Directors (the “Board”) or any change-in-control or business combination transaction
relating to the Company), the Company wishes to provide in this Agreement for the indemnification
of and the advancement of Expenses (as defined in Section 1(e)) to Indemnitee as set forth in this
Agreement and for the continued coverage of Indemnitee under the Company’s directors’ and officers’
liability insurance policies.
L. In light of the considerations referred to in the preceding recitals, it is the Company’s
intention and desire that the provisions of this Agreement be construed liberally, subject to their
express terms, to maximize the protections to be provided to Indemnitee hereunder.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with initial capital letters:
(a) “Change in Control” means the occurrence after the date of this Agreement of any of the
following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the
then-outstanding Voting Stock of the Company; provided, however, that:
(A) for purposes of this Section 1(a)(i), the following acquisitions shall not constitute a
Change in Control: (1) any acquisition of Voting Stock of the Company directly from the Company
that is approved by a majority of the Incumbent Directors,
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(2) any acquisition of Voting Stock of the Company by the Company or any Subsidiary, (3) any
acquisition of Voting Stock of the Company by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, and (4) any acquisition of Voting Stock
of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B)
and (C) of Section 1(a)(iii) below;
(B) if any Person acquires beneficial ownership of 20% or more of combined voting power of the
then-outstanding Voting Stock of the Company as a result of a transaction described in clause
(A)(1) of Section 1(a)(i) and such Person thereafter becomes the beneficial owner of any additional
shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock
of the Company, other than in an acquisition directly from the Company that is approved by a
majority of the Incumbent Directors or other than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all holders of Voting Stock are treated
equally, such subsequent acquisition shall be deemed to constitute a Change in Control;
(C) a Change in Control will not be deemed to have occurred if a Person acquires beneficial
ownership of 20% or more of the Voting Stock of the Company as a result of a reduction in the
number of shares of Voting Stock of the Company outstanding unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock of the Company representing
1% or more of the then-outstanding Voting Stock of the Company, other than in an acquisition
directly from the Company that is approved by a majority of the Incumbent Directors or other than
as a result of a stock dividend, stock split or similar transaction effected by the Company in
which all holders of Voting Stock are treated equally; and
(D) if at least a majority of the Incumbent Directors determine in good faith that a Person
has acquired beneficial ownership of 20% or more of the Voting Stock of the Company inadvertently,
and such Person divests as promptly as practicable a sufficient number of shares so that such
Person beneficially owns less than 20% of the Voting Stock of the Company, then no Change in
Control shall have occurred as a result of such Person’s acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets of the Company or the acquisition of assets
of another corporation, or other transaction (each, a “Business Combination”), unless, in each
case, immediately following such Business Combination (A) all or substantially all of the
individuals and entities who were the beneficial owners of Voting Stock of the Company immediately
prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the
combined voting power of the then outstanding shares of Voting Stock of the entity resulting from
such Business Combination (including, without limitation, an entity 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), (B) no Person (other than the Company, such entity resulting
from such Business Combination, or any employee benefit plan (or related trust) sponsored or
maintained by the Company, any Subsidiary or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or
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more of the combined voting power of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination, and (C) at least a majority of the members of the Board
of Directors of the entity resulting from such Business Combination were Incumbent Directors at the
time of the execution of the initial agreement or of the action of the Board providing for such
Business Combination; or
(iv) approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company, except pursuant to a Business Combination that complies with clauses (A), (B) and (C)
of Section 1(a)(iii).
(v) For purposes of this Section 1(a) and as used elsewhere in this Agreement, the following
terms shall have the following meanings:
(A) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(B) “Incumbent Directors” means the individuals who, as of the date hereof, are Directors of
the Company and any individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Company’s stockholders, or appointment, was approved by a vote of at
least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for director, without
objection to such nomination); provided, however, that an individual shall not be an Incumbent
Director if such individual’s election or appointment to the Board occurs as a result of an actual
or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to
the election or removal of Directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board.
(C) “Subsidiary” means an entity in which the Company directly or indirectly beneficially owns
50% or more of the outstanding Voting Stock.
(D) “Voting Stock” means securities entitled to vote generally in the election of directors
(or similar governing bodies).
(b) “Claim” means (i) any threatened, asserted, pending or completed claim, demand, action,
suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other,
and whether made pursuant to federal, state or other law; and (ii) any threatened, pending or
completed inquiry or investigation, whether made, instituted or conducted by the Company or any
other person, including without limitation any federal, state or other governmental entity, that
Indemnitee determines might lead to the institution of any such claim, demand, action, suit or
proceeding.
(c) “Controlled Affiliate” means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit, that is directly or
indirectly controlled by the Company. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of an entity or enterprise, whether through the ownership of voting securities, through
other voting rights, by contract or otherwise; provided that direct or indirect beneficial
ownership of capital stock or other interests in an entity or enterprise entitling the
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holder to cast 20% or more of the total number of votes generally entitled to be cast in the
election of directors (or persons performing comparable functions) of such entity or enterprise
shall be deemed to constitute control for purposes of this definition.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Claim in respect of which indemnification is sought by Indemnitee.
(e) “Expenses” means attorneys’ and experts’ fees and expenses and all other costs and
expenses paid or payable in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to investigate, defend, be a witness in or
participate in (including on appeal), any Claim.
(f) “Indemnifiable Claim” means any Claim based upon, arising out of or resulting from (i) any
actual, alleged or suspected act or failure to act by Indemnitee in his or her capacity as a
director, officer, employee or agent of the Company or as a director, officer, employee, member,
manager, trustee or agent of any other corporation, limited liability company, partnership, joint
venture, trust or other entity or enterprise, whether or not for profit, as to which Indemnitee is
or was serving at the request of the Company as a director, officer, employee, member, manager,
trustee or agent, (ii) any actual, alleged or suspected act or failure to act by Indemnitee in
respect of any business, transaction, communication, filing, disclosure or other activity of the
Company or any other entity or enterprise referred to in clause (i) of this sentence, or (iii)
Indemnitee’s status as a current or former director, officer, employee or agent of the Company or
as a current or former director, officer, employee, member, manager, trustee or agent of the
Company or any other entity or enterprise referred to in clause (i) of this sentence or any actual,
alleged or suspected act or failure to act by Indemnitee in connection with any obligation or
restriction imposed upon Indemnitee by reason of such status. In addition to any service at the
actual request of the Company, for purposes of this Agreement, Indemnitee shall be deemed to be
serving or to have served at the request of the Company as a director, officer, employee, member,
manager, trustee or agent of another entity or enterprise if Indemnitee is or was serving as a
director, officer, employee, member, manager, trustee or agent of such entity or enterprise and (i)
such entity or enterprise is or at the time of such service was a Controlled Affiliate, (ii) such
entity or enterprise is or at the time of such service was an employee benefit plan (or related
trust) sponsored or maintained by the Company or a Controlled Affiliate, or (iii) the Company or a
Controlled Affiliate directly or indirectly caused or authorized Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such capacity.
(g) “Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim.
(h) “Independent Counsel” means a law firm, or a member of 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 any Subsidiary) 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 named (or, as to
a threatened matter, reasonably likely to be named) party to the Indemnifiable Claim giving rise to
a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
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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.
(i) “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines,
penalties (whether civil, criminal or other) and amounts paid in settlement, including without
limitation all interest, assessments and other charges paid or payable in connection with or in
respect of any of the foregoing.
2. Indemnification Obligation. Subject to Section 7, the Company shall indemnify, defend and
hold harmless Indemnitee, to the fullest extent permitted or required by the laws of the State of
California in effect on the date hereof or as such laws may from time to time hereafter be amended
to increase the scope of such permitted indemnification, against any and all Indemnifiable Claims
and Indemnifiable Losses; provided, however, that, except as provided in Sections 4 and 20,
Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with
any Claim initiated by Indemnitee against the Company or any director or officer of the Company
unless the Company has joined in or consented to the initiation of such Claim.
3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company
prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to,
arising out of or resulting from any Indemnifiable Claim paid or incurred by Indemnitee or which
Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee. Indemnitee’s
right to such advancement is not subject to the satisfaction of any standard of conduct. Without
limiting the generality or effect of the foregoing, within five business days after any request by
Indemnitee, the Company shall, in accordance with such request (but without duplication), (a) pay
such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to
pay such Expenses, or (c) reimburse Indemnitee for such Expenses; provided that Indemnitee shall
repay, without interest, any amounts actually advanced to Indemnitee that, at the final disposition
of the Indemnifiable Claim to which the advance related, were in excess of amounts paid or payable
by Indemnitee in respect of Expenses relating to, arising out of or resulting from such
Indemnifiable Claim. In connection with any such payment, advancement or reimbursement, Indemnitee
shall execute and deliver to the Company an undertaking, which need not be secured and shall be
accepted without reference to Indemnitee’s ability to repay the Expenses, by or on behalf of the
Indemnitee, to repay any amounts paid, advanced or reimbursed by the Company in respect of Expenses
relating to, arising out of or resulting from any Indemnifiable Claim in respect of which it shall
have been determined, following the final disposition of such Indemnifiable Claim and in accordance
with Section 7, that Indemnitee is not entitled to indemnification hereunder.
4. Indemnification for Additional Expenses. Without limiting the generality or effect of the
foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if requested by
Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of
such request, any and all Expenses paid or incurred by Indemnitee or which Indemnitee determines
are reasonably likely to be paid or incurred by Indemnitee in connection with any Claim made,
instituted or conducted by Indemnitee for (a) indemnification or reimbursement or advance payment
of Expenses by the Company under any provision of this Agreement, or under any other agreement or
provision of the Constituent Documents now or
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hereafter in effect relating to Indemnifiable Claims, and/or (b) recovery under any directors’
and officers’ liability insurance policies maintained by the Company, regardless in each case of
whether Indemnitee ultimately is determined to be entitled to such indemnification, reimbursement,
advance or insurance recovery, as the case may be; provided, however, that Indemnitee shall return,
without interest, any such advance of Expenses (or portion thereof) which remains unspent at the
final disposition of the Claim to which the advance related.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Indemnifiable Loss, but not for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Procedure for Notification. To obtain indemnification under this Agreement in respect of
an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a written
request therefor, including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors’ and officers’ liability insurance in effect under which
coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company
shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the applicable policies. The
Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and
copies of all subsequent correspondence between the Company and such insurers regarding the
Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the
delivery or receipt thereof by the Company. The failure by Indemnitee to timely notify the Company
of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from any liability
hereunder unless, and only to the extent that, the Company did not otherwise learn of such
Indemnifiable Claim or Indemnifiable Loss and such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage.
7. Determination of Right to Indemnification.
(a) To the extent that Indemnitee shall have been successful on the merits or otherwise in
defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter
therein, including without limitation dismissal without prejudice, Indemnitee shall be indemnified
against all Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable
Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section
7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether Indemnitee has
satisfied any applicable standard of conduct under California law that is a legally required
condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim (a “Standard of Conduct
Determination”) shall be made as follows: (i) if a Change in Control shall not have occurred, or
if a Change in Control shall have occurred but Indemnitee shall have requested that the Standard of
Conduct Determination be made pursuant to this clause (i), (A) by a majority vote of the
Disinterested Directors, even if less than a quorum of the Board, (B) if such Disinterested
Directors so direct, by a majority vote of a committee of Disinterested Directors
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designated by a majority vote of all Disinterested Directors, or (C) if there are no such
Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board, a copy
of which shall be delivered to Indemnitee; and (ii) if a Change in Control shall have occurred and
Indemnitee shall not have requested that the Standard of Conduct Determination be made pursuant to
clause (i), by Independent Counsel in a written opinion addressed to the Board, a copy of which
shall be delivered to Indemnitee. Indemnitee will cooperate with the person or persons making such
Standard of Conduct Determination, including providing to such person or persons, 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. The Company shall indemnify and hold harmless Indemnitee against and, if requested
by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days
of such request, any and all costs and expenses (including attorneys’ and experts’ fees and
expenses) incurred by Indemnitee in so cooperating with the person or persons making such Standard
of Conduct Determination.
(c) The Company shall use its reasonable best efforts to cause any Standard of Conduct
Determination required under Section 7(b) to be made as promptly as practicable. If (i) the person
or persons empowered or selected under Section 7 to make the Standard of Conduct Determination
shall not have made a determination within 30 days after the later of (A) receipt by the Company of
written notice from Indemnitee advising the Company of the final disposition of the applicable
Indemnifiable Claim (the date of such receipt being the “Notification Date”) and (B) the selection
of an Independent Counsel, if such determination is to be made by Independent Counsel, that is
permitted under the provisions of Section 7(e) to make such determination and (ii) Indemnitee shall
have fulfilled his/her obligations set forth in the second sentence of Section 7(b), then
Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided that such
30-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the
person or persons making such determination in good faith requires such additional time for the
obtaining or evaluation or documentation and/or information relating thereto.
(d) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable
Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has satisfied any
applicable standard of conduct under California law is a legally required condition precedent to
indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has
been determined or deemed pursuant to Section 7(b) or (c) to have satisfied any applicable standard
of conduct under California law which is a legally required condition precedent to indemnification
of Indemnitee hereunder against any Indemnifiable Losses, then the Company shall pay to Indemnitee,
within five business days after the later of (x) the Notification Date in respect of the
Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are related, out of which
such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted and (y) the
earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) above shall
have been satisfied, an amount equal to the amount of such Indemnifiable Losses.
(e) If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to
Section 7(b)(i), the Independent Counsel shall be selected by the Board of Directors, and the
Company shall give written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Standard of Conduct Determination is to be
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made by Independent Counsel pursuant to Section 7(b)(ii), the Independent Counsel shall be
selected by Indemnitee, and Indemnitee shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected. In either case, Indemnitee or the Company, as
applicable, may, within five business days after receiving written notice of selection from the
other, deliver to the other 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
satisfy the criteria set forth in the definition of “Independent Counsel” in Section 1(h), and the
objection shall set forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the person or firm so selected shall act as Independent Counsel. If such
written objection is properly and timely made and substantiated, (i) 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 and (ii) the non-objecting party may, at
its option, select an alternative Independent Counsel and give written notice to the other party
advising such other party of the identity of the alternative Independent Counsel so selected, in
which case the provisions of the two immediately preceding sentences and clause (i) of this
sentence shall apply to such subsequent selection and notice. If applicable, the provisions of
clause (ii) of the immediately preceding sentence shall apply to successive alternative selections.
If no Independent Counsel that is permitted under the foregoing provisions of this Section 7(e) to
make the Standard of Conduct Determination shall have been selected within 30 days after the
Company gives its initial notice pursuant to the first sentence of this Section 7(e) or Indemnitee
gives its initial notice pursuant to the second sentence of this Section 7(e), as the case may be,
either the Company or Indemnitee may petition the Superior Court for the County of Santa Xxxxx of
the State of California 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 or firm selected by the Court or by such other person as the Court
shall designate, and the person or firm with respect to whom all objections are so resolved or the
person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay
all of the reasonable fees and expenses of the Independent Counsel incurred in connection with the
Independent Counsel’s determination pursuant to Section 7(b).
8. Presumption of Entitlement. In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that Indemnitee has satisfied the applicable
standard of conduct, and the Company may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any Standard of Conduct Determination that is adverse to
Indemnitee may be challenged by the Indemnitee in the Superior Court for the County of Santa Xxxxx
of the State of California. No determination by the Company (including by its directors or any
Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct shall be
a defense to any Claim by Indemnitee for indemnification or reimbursement or advance payment of
Expenses by the Company hereunder or create a presumption that Indemnitee has not met any
applicable standard of conduct.
9. No Other Presumption. For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea
of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet
any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.
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10. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other
rights Indemnitee may have under the Constituent Documents, or the substantive laws of the
Company’s jurisdiction of incorporation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise would
have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be
deemed to have such greater right hereunder and (b) to the extent that any change is made to any
Other Indemnity Provision which permits any greater right to indemnification than that provided
under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect
of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this
Agreement or any Other Indemnity Provision.
11. Liability Insurance and Funding. For the duration of Indemnitee’s service as a director
and/or officer of the Company, and thereafter for so long as Indemnitee shall be subject to any
pending or possible Indemnifiable Claim, the Company shall use commercially reasonable efforts
(taking into account the scope and amount of coverage available relative to the cost thereof) to
cause to be maintained in effect policies of directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Company that is at least substantially comparable in
scope and amount to that provided by the Company’s current policies of directors’ and officers’
liability insurance. The Company shall provide Indemnitee with a copy of all directors’ and
officers’ liability insurance applications, binders, policies, declarations, endorsements and other
related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment
on the same. Without limiting the generality or effect of the two immediately preceding sentences,
the Company shall not discontinue or significantly reduce the scope or amount of coverage from one
policy period to the next (i) without the prior approval thereof by a majority vote of the
Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such
discontinuation or significant reduction in the scope or amount of coverage is proposed there are
no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be
unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance
obtained by the Company, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the
Company’s directors and officers most favorably insured by such policy. The Company may, but shall
not be required to, create a trust fund, grant a security interest or use other means, including
without limitation a letter of credit, to ensure the payment of such amounts as may be necessary to
satisfy its obligations to indemnify and advance expenses pursuant to this Agreement.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities (other than Indemnitee’s successors), including any entity or
enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(f).
Indemnitee shall execute all papers reasonably required to evidence such rights (all of
Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be
reimbursed by or, at the option of Indemnitee, advanced by the Company).
13. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in
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connection therewith) under any insurance policy, the Constituent Documents and Other
Indemnity Provisions or otherwise (including from any entity or enterprise referred to in clause
(i) of the definition of “Indemnifiable Claim” in Section 1(f)) in respect of such Indemnifiable
Losses otherwise indemnifiable hereunder.
14. Defense of Claims. The Company shall be entitled to participate in the defense of any
Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to the
Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by
Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present
such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable
Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee
shall conclude that there may be one or more legal defenses available to him or her that are
different from or in addition to those available to the Company, or (c) any such representation by
such counsel would be precluded under the applicable standards of professional conduct then
prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law
firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the
Company’s expense. The Company shall not be liable to Indemnitee under this Agreement for any
amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the
Company’s prior written consent. The Company shall not, without the prior written consent of the
Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the
Indemnitee is, or could have been, a party unless such settlement solely involves the payment of
money and includes a complete and unconditional release of the Indemnitee from all liability on any
claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee
shall unreasonably withhold its consent to any proposed settlement; provided that Indemnitee may
withhold consent to any settlement that does not provide a complete and unconditional release of
Indemnitee.
15. Successors and Binding Agreement. (a) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form and substance
satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be required to perform if no
such succession had taken place. This Agreement shall be binding upon and inure to the benefit of
the Company and any successor to the Company, including without limitation any person acquiring
directly or indirectly all or substantially all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be
deemed the “Company” for purposes of this Agreement), but shall not otherwise be assignable or
delegatable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by the Indemnitee’s
personal or legal representatives, executors, administrators, heirs, distributees, legatees and
other successors.
(c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Sections 15(a) and 15(b). Without limiting the generality or
effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable,
whether by pledge, creation of a security interest or otherwise,
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other than by a transfer by the Indemnitee’s will or by the laws of descent and distribution,
and, in the event of any attempted assignment or transfer contrary to this Section 15(c), the
Company shall have no liability to pay any amount so attempted to be assigned or transferred.
16. Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified mail, return receipt requested,
postage prepaid or one business day after having been sent for next-day delivery by a nationally
recognized overnight courier service, addressed to the Company (to the attention of the Secretary
of the Company) and to Indemnitee at the applicable address shown on the signature page hereto, or
to such other address as any party may have furnished to the other in writing and in accordance
herewith, except that notices of changes of address will be effective only upon receipt.
17. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of California, without giving effect to the principles of conflict of laws of such State. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the Superior Court
for the County of Santa Xxxxx of the State of California for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be brought only in the Superior Court for the County of Santa
Xxxxx of the State of California.
18. Validity. If any provision of this Agreement or the application of any provision hereof
to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of
this Agreement and the application of such provision to any other person or circumstance shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal.
In the event that any court or other adjudicative body shall decline to reform any provision of
this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the
immediately preceding sentence, the parties thereto shall take all such action as may be necessary
or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal
with one or more alternative provisions that effectuate the purpose and intent of the original
provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise
illegal.
19. Miscellaneous. No provision of this Agreement may be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee and the
Company. No waiver by either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise, expressed or
implied with respect to the subject matter hereof have been made by either party that are not set
forth expressly in this Agreement. References to Sections are to references to Sections of this
Agreement.
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20. Legal Fees and Expenses. It is the intent of the Company that Indemnitee not be required
to incur legal fees and or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be extended to Indemnitee
hereunder. Accordingly, without limiting the generality or effect of any other provision hereof,
if it should appear to Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided
or intended to be provided to Indemnitee hereunder, the Company irrevocably authorizes the
Indemnitee from time to time to retain counsel of Indemnitee’s choice, at the expense of the
Company as hereafter provided, to advise and represent Indemnitee in connection with any such
interpretation, enforcement or defense, including without limitation the initiation or defense of
any litigation or other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between the Company and such counsel, the Company
irrevocably consents to Indemnitee’s entering into an attorney-client relationship with such
counsel, and in that connection the Company and Indemnitee agree that a confidential relationship
shall exist between Indemnitee and such counsel. Without respect to whether Indemnitee prevails,
in whole or in part, in connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys’ and related fees and expenses incurred by
Indemnitee in connection with any of the foregoing.
21. Certain Interpretive Matters. Unless the context of this Agreement otherwise requires,
(a) “it” or “its” or words of any gender include each other gender, (b) words using the singular or
plural number also include the plural or singular number, respectively, (c) the terms “hereof,”
“herein,” “hereby” and derivative or similar words refer to this entire Agreement, (d) the terms
“Article,” “Section,” “Annex” or “Exhibit” refer to the specified Article, Section, Annex or
Exhibit of or to this Agreement, (e) the terms “include,” “includes” and “including” will be deemed
to be followed by the words “without limitation” (whether or not so expressed), and (f) the word
“or” is disjunctive but not exclusive. Whenever this Agreement refers to a number of days, such
number will refer to calendar days unless business days are specified and whenever action must be
taken (including the giving of notice or the delivery of documents) under this Agreement during a
certain period of time or by a particular date that ends or occurs on a non-business day, then such
period or date will be extended until the immediately following business day. As used herein,
“business day” means any day other than Saturday, Sunday or a United States federal holiday.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original but all of which together shall constitute one and the same
agreement.
[Signatures Appear On Following Page]
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized
representative to execute this Agreement as of the date first above written.
| Xxxx Microproducts Inc. 0000 Xxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [INDEMNITEE] [Address] |
||||
| [Indemnitee] | ||||
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