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EXHIBIT 10.35
INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement") is made as of
______________, 1998 by and between Xxxxx Instruments Corp., a Delaware
corporation (the "Company"), and _________________ (the "Indemnitee"), a
director and/or officer of the Company.
BACKGROUND
A. The Indemnitee has agreed to serve as a director or officer of
the Company and in such capacity has rendered valuable services to the Company.
B. The Company has investigated the availability and sufficiency
of liability insurance and the applicable state statutory indemnification
provisions to provide its directors and officers with adequate protection
against various legal risks and potential liabilities to which directors and
officers are subject due to their position with the Company and has concluded
that insurance and statutory provisions may provide inadequate and unacceptable
protection to certain individuals requested to serve as its directors and
officers.
C. In order to induce and encourage highly experienced and
capable persons such as the Indemnitee to serve as a director and/or officer of
the Company, the Board of Directors has determined, after due consideration and
investigation of the terms and provisions of this Agreement and the various
other options available to the Company and the Indemnitee in lieu of this
Agreement, that this Agreement is not only reasonable and prudent but necessary
to promote and ensure the best interests of the Company and its stockholders.
AGREEMENT
In consideration of the services of the Indemnitee and in order
to induce the Indemnitee to serve as a director and/or officer of the Company,
the Company and the Indemnitee agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement:
(a) A "Change in Control" shall be deemed to have occurred if
(i) any "person" (as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's
then outstanding voting securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of the two year period constitute the
Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company's
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stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the Board of Directors, or
(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior to such a merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the total voting power represented by the
voting securities of the Company or the surviving entity outstanding immediately
after the merger or consolidation, or the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions) of
all or substantially all the Company's assets.
(b) The term "Expenses" includes, without limitation,
attorneys' fees, disbursements and retainers, accounting and witness fees,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, and any expenses of establishing a right to
indemnification, pursuant to this Agreement or otherwise including reasonable
compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or action for indemnification
for which he or she is not otherwise compensated by the Company or any third
party. The term "Expenses" does not include the amount of judgments, fines,
penalties or ERISA excise taxes actually levied against the Indemnitee.
(c) A "Potential Change in Control" shall be deemed to have
occurred if (i) the Company enters into an agreement or arrangement, the
consummation of which would result in the occurrence of a Change in Control;
(ii) any person (including the Company) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a Change in
Control; (iii) any person (other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity
or a corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company), who is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined voting power
of the Company's then outstanding voting securities increases his or her
beneficial ownership of the securities by 5% or more over the percentage so
owned by that person on the date this Agreement is executed; or (iv) the Board
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(d) The term "Proceeding" shall include any threatened,
pending or completed action, suit or proceeding, whether brought by or in the
name of the Company or otherwise and whether of a civil, criminal or
administrative or investigative nature, by reason of the fact that the
Indemnitee is or was a director and/or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, whether or not he or she is serving in such capacity at
the time any liability or Expense is incurred for which indemnification or
reimbursement is to be provided under this Agreement.
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SECTION 2. INDEMNIFICATION
2.1 INDEMNIFICATION IN THIRD PARTY ACTIONS
The Company shall indemnify the Indemnitee in accordance with the
provisions of this subsection 2.1 if the Indemnitee is a party to or threatened
to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the name of the Corporation to procure a judgment in its
favor), by reason of the fact that the Indemnitee is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another enterprise against all Expenses,
judgments, fines, penalties and ERISA excise tax actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of the
Proceeding, to the fullest extent permitted by applicable law; provided that any
settlement be approved in writing by the Company.
2.2 INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE
COMPANY
The Company shall indemnify the Indemnitee in accordance with the
provisions of this subsection 2.2 if the Indemnitee is a party to or threatened
to be made a party to or otherwise involved in any Proceeding by or in the name
of the Company to procure a judgment in its favor by reason of the fact that
Indemnitee was or is a director or officer of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another enterprise, against all Expenses actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of the Proceeding, to
the fullest extent permitted by applicable law.
2.3 PARTIAL INDEMNIFICATION
If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of, but not
the total amount of, the Expenses, judgments, fines, penalties or ERISA excise
taxes actually and reasonably incurred by him or her in the investigation,
defense, appeal or settlement of any Proceeding, the Company shall nevertheless
indemnify the Indemnitee for the portion of the Expenses, judgments, fines,
penalties or ERISA excise taxes to which the Indemnitee is entitled.
2.4 INDEMNIFICATION HEREUNDER NOT EXCLUSIVE
The indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under the Certificate of Incorporation, the Bylaws, any agreement, any vote of
stockholders or disinterested directors, applicable law, or otherwise, both as
to action in his or her official capacity and as to action in another capacity
on behalf of the Company while holding office.
2.5 INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY
Notwithstanding any other provisions of this Agreement, to the
extent that the Indemnitee has been successful in defense of any Proceeding or
in defense of any claim, issue or matter in the Proceeding, on the merits or
otherwise, including the dismissal of a Proceeding without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith to the fullest extent permitted by applicable law.
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SECTION 3. PRESUMPTIONS
3.1 PRESUMPTION REGARDING STANDARD OF CONDUCT
The Indemnitee shall be conclusively presumed to have met the
relevant standards of conduct as defined by applicable law for indemnification
pursuant to this Agreement, unless a determination that the Indemnitee has not
met the relevant standards is made by (i) the Board of Directors of the Company
by a majority vote of a quorum consisting of directors who were not parties to
the Proceedings, (ii) the stockholders of the Company by majority vote, or (iii)
in a written opinion by independent legal counsel, selection of whom has been
approved by the Indemnitee in writing.
3.2 DETERMINATION OF RIGHT TO INDEMNIFICATION
If a claim under this Agreement is not paid by the Company within
30 days of receipt of written notice, the right to indemnification as provided
by this Agreement shall be enforceable by the Indemnitee in any court of
competent jurisdiction. The burden of proving by clear and convincing evidence
that indemnification or advances are not appropriate shall be on the Company.
Neither the failure of the directors or stockholders of the Company or
independent legal counsel to have made a determination prior to the commencement
of the action that indemnification or advances are proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the directors or stockholders of the Company or independent
legal counsel that the Indemnitee has not met the applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(a) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning his or her right to indemnification or advances in whole
or in part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of the Proceeding, unless a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in the Proceeding was not made in good faith or was frivolous.
SECTION 4. ADVANCES OF EXPENSES
The Expenses incurred by the Indemnitee in any Proceeding shall
be paid promptly by the Company in advance of the final disposition of the
Proceeding at the written request of the Indemnitee to the fullest extent
permitted by applicable law; provided that if applicable law requires an
undertaking, the Indemnitee shall undertake in writing to repay the amount
advanced to the extent that it is ultimately determined that the Indemnitee is
not entitled to indemnification.
SECTION 5. CHANGE IN CONTROL
The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to the
Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and
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Expense advances under this Agreement or any other agreement, the Company's
Certificate of Incorporation, or the Company's Bylaws in effect relating to
claims for indemnifiable events, the Company shall seek legal advice only from
independent counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld), and who has not otherwise
performed services for the Company or Indemnitee within the last five years
(other than in connection with such matters) ("Special Independent Counsel").
The Special Independent Counsel, among other things, shall render its written
opinion to the Company and Indemnitee as to whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Special Independent Counsel
referred to above and may fully indemnify the Special Independent Counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement.
SECTION 6. INDEMNIFICATION PROCEDURE
6.1 NOTICE
Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee will, if a claim is to be made
against the Company under this Agreement, notify the Company of the commencement
of the Proceeding. The omission to notify the Company will not relieve it from
any liability which it may have to the Indemnitee otherwise than under this
Agreement.
6.2 COMPANY PARTICIPATION
With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate in the Proceeding at its
own expense and, except as otherwise provided below, to the extent that it may
desire, the Company may assume the defense of the Proceeding, with counsel
satisfactory to the Indemnitee. After notice from the Company to the Indemnitee
of its election to assume the defense of a Proceeding, during the Company's good
faith active defense the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense of the Proceeding, other than
reasonable costs of investigation or as otherwise provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. The
Indemnitee shall have the right to employ his or her counsel in any Proceeding
but the fees and expenses of the counsel incurred after notice from the Company
of its assumption of the defense of the Proceeding shall be at the expense of
the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of the defense of a Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of a Proceeding, in each of
which cases the fees and expenses of the Indemnitee's counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense
of any Proceeding brought by or on behalf of the Company or as to which the
Indemnitee has made the conclusion that there may be a conflict of interest
between the Company and the Indemnitee.
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SECTION 7. LIMITATIONS ON INDEMNIFICATION
No payments pursuant to this Agreement shall be made by the
Company:
(a) to indemnify or advance Expenses to the Indemnitee with
respect to Proceedings initiated or brought voluntarily by the Indemnitee and
not by way of defense, except with respect to Proceedings brought to establish
or enforce a right to indemnification under this Agreement or any other statute
or law or otherwise as required under applicable law, but the indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board of Directors finds it to be appropriate;
(b) to indemnify the Indemnitee for any Expenses, judgements,
fines, penalties or ERISA excise taxes for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy, except in respect of
any excess beyond the amount of payment under the insurance;
(c) to indemnify the Indemnitee for any Expenses, judgements,
fines or penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, the
rules and regulations promulgated thereunder and amendments thereto or similar
provisions of any federal, state or local statutory law;
(d) to indemnify the Indemnitee for any Expenses, judgements,
fines, penalties or ERISA excise taxes resulting from Indemnitee's conduct which
is finally adjudged to have been willful misconduct, knowingly fraudulent or
deliberately dishonest; or
(e) if a court of competent jurisdiction shall finally determine
that any indemnification hereunder is unlawful.
SECTION 8. MAINTENANCE OF LIABILITY INSURANCE
8.1 AFFIRMATIVE COVENANT OF THE COMPANY
The Company covenants and agrees that, as long as the Indemnitee
shall continue to serve as a director and/or officer of the Company and
thereafter so long as the Indemnitee shall be subject to any possible
Proceeding, the Company, subject to subsection 8.3 of this Agreement, shall
promptly obtain and maintain in full force and effect directors' and officers'
liability insurance ("D&O Insurance") in reasonable amounts from established and
reputable insurers.
8.2 INDEMNITEE NAMED AS INSURED
In all D&O Insurance policies, the Indemnitee shall be named as
an insured in a manner that provides the Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company's directors and/or
officers.
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8.3 EXEMPTION FROM MAINTENANCE OF INSURANCE
Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in good
faith that insurance is not reasonably available, the premium costs for
insurance are disproportionate to the amount of coverage provided, the coverage
provided by insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
SECTION 9. MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon, and shall inure to the
benefit of the Indemnitee and his or her heirs, personal representatives and
assigns, and the Company and its successors and assigns.
9.2 SEVERABILITY
Each provision of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision of this
Agreement shall be held to be invalid or unenforceable for any reason, the
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions of this Agreement. To the extent required, any provision
of this Agreement may be modified by a court of competent jurisdiction to
preserve its validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable law.
9.3 SAVINGS CLAUSE
If this Agreement or any portion of it is invalidated on any
ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee as to Expenses, judgments, fines, penalties or
ERISA excise taxes with respect to any Proceeding to the fullest extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated or by any other applicable law.
9.4 INTERPRETATION; GOVERNING LAW
This Agreement shall be construed as a whole and in accordance
with its fair meaning. Headings are for convenience only and shall not be used
in construing meaning. This Agreement shall be governed and interpreted in
accordance with the laws of the State of California.
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9.5 AMENDMENTS
No amendment, waiver, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by the party
against whom enforcement is sought. The indemnification rights afforded to the
Indemnitee by this Agreement are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Company's Certificate of
Incorporation, Bylaws or agreements including D&O Insurance policies.
9.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other.
9.7 NOTICES
Any notice required to be given under this Agreement shall be
directed to Xxxxx Instruments Corp., 0000 Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel, and to Indemnitee at the address set forth below or
to another address as either
shall designate in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
INDEMNITEE
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Name:
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Address:
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XXXXX INSTRUMENTS CORP.,
a Delaware corporation
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Name:
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By:
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Title:
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