INDEMNIFICATION AGREEMENT
Exhibit
10.1
This INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into this ____
day of _____________, 201_ (the “Effective Date”) by and between Mindspeed Technologies,
Inc., a Delaware corporation (the “Company”), and [ ] (the
“Indemnitee”).
WHEREAS, the Company believes it is essential to retain and attract qualified directors and
officers;
WHEREAS, the Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and the Indemnitee recognize the increased risk of litigation and
other claims being asserted against directors and officers of public companies;
WHEREAS, the Company’s Bylaws (the “Bylaws”) require the Company to indemnify and
advance expenses to its directors and officers to the extent permitted by the DGCL (as hereinafter
defined);
[WHEREAS, the Indemnitee has been serving and intends to continue serving as a director and/or
officer of the Company in part in reliance on the Bylaws; and] 1
WHEREAS, in recognition of the Indemnitee’s need for: (i) substantial protection against
personal liability, based on the Indemnitee’s reliance on the Bylaws; (ii) specific contractual
assurance that the protection promised by the Bylaws will be available to the Indemnitee,
regardless of, among other things, any amendment to or revocation of the Bylaws or any change in
the composition of the Company’s Board of Directors (the “Board”) or acquisition
transaction relating to the Company and (iii) an inducement to continue to provide effective
services to the Company as a director and/or officer thereof, the Company wishes to provide for the
indemnification of the Indemnitee and to advance expenses to the Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement and, to the extent insurance is maintained by
the Company, to provide for the continued coverage of the Indemnitee under the Company’s directors’
and officers’ liability insurance policies; [and]
[WHEREAS, the Indemnitee is relying upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director, officer or employee of the Company;]2
NOW, THEREFORE, in consideration of the premises contained herein and of the Indemnitee
continuing to serve the Company directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as follows:
1.
Certain Definitions.
(a) “Change in Control”
means any of the following occurring at any time after the
distribution of the shares of capital stock of the Company to the holders of capital stock of
Conexant Systems, Inc. (the “Distribution”):
(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 either: (a) the then
outstanding shares of common stock of the Company (the “Outstanding Corporation Common
Stock”) or (b) the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the “Outstanding Corporation
Voting Securities”); provided, however, that for purposes of this Section 1(a)(i), the
following acquisitions shall not constitute a Change in Control: (v) any acquisition directly from
the Company; (w) any acquisition by the Company; (x) any acquisition by Conexant Systems, Inc.; (y)
any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company, Conexant Systems, Inc. or any
| 1 | Include if the Indemnitee is not a new officer/director. | |
| 2 | Include if the Indemnitee is a new officer/director. |
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corporation
controlled by the Company or Conexant Systems, Inc. or (z) any acquisition pursuant to a
transaction which complies with clauses (a), (b) and (c) of Section 1(a)(iii) of this subsection;
or
(ii)
Individuals who, as of the date of the Distribution, constitute the Board of Directors
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board
of Directors; provided, however, that any individual becoming a director subsequent to that date
whose election, or nomination for election by the Company’s stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result of an actual or threatened
election contest 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 of Directors;
or
(iii)
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
entity (a “Corporate Transaction”), in each case, unless, following such Corporate
Transaction: (a) all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation 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) in substantially the same proportions as their ownership, immediately prior
to such Corporate Transaction, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be; (b) no Person (excluding Conexant Systems, Inc.,
any employee benefit plan (or related trust) of the Company, of Conexant Systems, Inc. or of such
corporation resulting from such Corporate Transaction) beneficially owns, directly or indirectly,
20% or more of, respectively, the then outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership existed prior to the
Corporate Transaction and (c) at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the Board of Directors,
providing for such Corporate Transaction; or
(iv)
Approval by the Company’s stockholders of a complete liquidation or dissolution of the
Company.
(b) “DGCL” shall mean
the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended or interpreted; provided, however, that in the case of any
such amendment or interpretation, only to the extent that such amendment or interpretation permits
the Company to provide broader indemnification rights than were permitted prior thereto.
(c) “Expense” shall
mean attorneys’ fees and all other direct or indirect costs,
expenses and obligations of any type paid or incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing for any of the
foregoing, any Proceeding relating to any Indemnifiable Event.
(d) “Indemnifiable
Event” shall mean any event or occurrence that takes place either
prior to or after the execution of this Agreement, related to 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 corporation, including a subsidiary of the
Company, or of a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, its participants or beneficiaries, including as deemed
fiduciary thereto, or by reason of anything done or not done by the Indemnitee in any such
capacity.
(e) “Liabilities” shall
mean liabilities and losses (including judgments, fines,
excise taxes or penalties under the Employee Retirement Income Security Act of 1974, and amounts
paid or to be paid in settlement, and any interest, assessments, or other charges imposed thereon,
and any federal, state, local, or foreign
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taxes imposed on any director or officer as a result of the actual or deemed receipt of any
payments under this Agreement), collectively.
(f) “Proceeding” shall
mean any threatened, pending or completed action, suit, any
investigation or proceeding, and any appeal thereof, whether civil, criminal, administrative or
investigative and/or any inquiry or investigation (whether formal or informal), whether conducted
by the Company or any other party, that the Indemnitee in good faith believes might lead to the
institution of any such action.
(g) “Reviewing Party”
shall mean any appropriate person or body consisting of a member
or members of the Company’s Board or any other person or body appointed by the Board (including the
special independent counsel referred to in Section 6) who is not a party to the particular
Proceeding with respect to which the Indemnitee is seeking indemnification.
2. Indemnification. In the event the
Indemnitee was or is a party to or is involved (as a
party, witness, or otherwise) in any Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, whether the basis of the Proceeding is the Indemnitee’s alleged action in an
official capacity as a director or officer or in any other capacity while serving as a director or
officer, the Company shall indemnify the Indemnitee to the fullest extent permitted by the DGCL
against any and all Expenses and Liabilities reasonably incurred or suffered by such person in
connection with such Proceeding. The Company shall provide indemnification pursuant to this
Section 2 as soon as practicable, but in no event later than 30 days after it receives written
demand from the Indemnitee. Notwithstanding anything in this Agreement to the contrary and except
as provided in Section 5 below, the Indemnitee shall not be entitled to indemnification pursuant to
this Agreement (i) in connection with any Proceeding initiated by the 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 Proceeding or (ii) on account of any suit in which judgment is rendered
against the Indemnitee pursuant to Section 16(b) of the Exchange Act or similar provisions of state
statutory law or common law for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company.
3. Advancement of Expenses. The Company shall
advance Expenses to the Indemnitee within 30
business days of such request (an “Expense Advance”); provided, however, that if required
by applicable corporate laws such Expenses shall be advanced only upon delivery to the Company of
an undertaking in substantially the form attached hereto as Exhibit A by or on behalf of
the Indemnitee to repay such amount if it is ultimately determined that the Indemnitee is not
entitled to be indemnified by the Company; and provided further, that the Company shall make such
advances only to the extent permitted by law. Indemnitee shall have the right to advancement by
the Company, prior to the final adjudication of any Proceeding, of any and all Expenses relating
to, arising out of or resulting from such Proceeding, paid or incurred by Indemnitee. The right to
advances under this Section 3 shall in all events continue until final disposition of any
Proceeding, including any appeal therein. Indemnitee’s right to such advancement is not subject to
the satisfaction of any standard of conduct. Advances shall be made without regard to Indemnitee’s
ability to repay. Advances shall be made without regard to Indemnitee’s ultimate entitlement to be
indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances
shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right
of advancement, including Expenses incurred preparing and forwarding statements to the Company to
support the advances claimed.
4. Review Procedure for Indemnification.
Notwithstanding the foregoing: (i) the obligations
of the Company under Sections 2 and 3 above shall be subject to the condition that the Reviewing
Party shall not have determined (in a written opinion, in any case in which the special independent
counsel referred to in Section 6 hereof is involved) that the Indemnitee would not be permitted to
be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 3 above shall be subject to the condition that, if, when and to the
extent that the Reviewing Party determines that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed by the Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided,
however, that if the Indemnitee has commenced legal proceedings in a court of competent
jurisdiction pursuant to Section 5 below to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party that the Indemnitee
would not be permitted to be indemnified under applicable law shall not be binding and the
Indemnitee shall not be required to reimburse the Company for any
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Expense Advance until a final judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or have lapsed). The Indemnitee’s obligation to
reimburse the Company for Expense Advances pursuant to this Section 4 shall be unsecured and no
interest shall be charged thereon. The Reviewing Party shall be selected by the Board, unless
there has been a Change in Control, other than a Change in Control which has been approved by a
majority of the Company’s Board who were directors immediately prior to such Change in Control, in
which case the Reviewing Party shall be the special independent counsel referred to in Section 6
hereof. If the person or persons so empowered to make a determination pursuant to this Section 4
shall have failed to make the requested determination within 90 days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or
its equivalent, or other disposition or partial disposition of any Proceeding or any other event
that could enable the Company to determine Indemnitee’s entitlement to indemnification, the
requisite determination that Indemnitee is entitled to indemnification shall be deemed to have been
made.
5. Enforcement of Indemnification Rights. If
the Reviewing Party determines that the
Indemnitee substantively would not be permitted to be indemnified in whole or in part under
applicable law, or if the Indemnitee has not otherwise been paid in full pursuant to Sections 2 and
3 above within 30 business days after a written demand has been received by the Company, the
Indemnitee shall have the right to commence litigation in any court in the State of Delaware having
subject matter jurisdiction thereof and in which venue is proper to recover the unpaid amount of
the demand (an “Enforcement Proceeding”) and, if successful in whole or in part, the
Indemnitee shall be entitled to be paid any and all Expenses in connection with such Enforcement
Proceeding. The Company hereby consents to service of process for such Enforcement Proceeding and
to appear in any such Enforcement Proceeding. Alternatively, Indemnitee, at his option, may seek
an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within one hundred eighty days
following the date on which Indemnitee first has the right to commence such proceeding pursuant to
this Section 5, and, if successful in whole or in part, the Indemnitee shall be entitled to be paid
any and all Expenses in connection with such arbitration. The Company shall not oppose Indemnitee’s
right to seek any such adjudication or award in arbitration. Any determination by the Reviewing
Party otherwise shall be conclusive and binding on the Company and the Indemnitee.
6. 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 who
were directors immediately prior to such Change in Control, then with respect to all matters
thereafter arising concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under applicable law or the Company’s
Certificate of Incorporation or Bylaws now or hereafter in effect relating to indemnification for
Indemnifiable Events, the Company shall seek legal advice only from special independent counsel
selected by the Indemnitee and approved by the Company, which approval shall not be unreasonably
withheld. Such special independent counsel shall not have otherwise performed services for the
Company or the Indemnitee, other than in connection with such matters, within the last five years.
Such independent counsel shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement.
Such counsel, among other things, shall render its written opinion to the Company and the
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 to indemnify fully such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages arising out of or relating to this
Agreement or the engagement of special independent counsel pursuant to this Agreement.
7. Security. To the extent requested by the
Indemnitee and approved by the Board of
Directors, the Company may at any time and from time to time provide security to the Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or
other collateral. Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of the Indemnitee.
8. Partial Indemnity. If the Indemnitee is
entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses and Liabilities, but not,
however, for all of the total amount thereof, the Company shall nevertheless indemnify the
Indemnitee for the portion thereof to which
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the Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee has been successful on the merits or otherwise in defense of any
or all Proceedings relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith. In connection with any determination by the
Reviewing Party or otherwise as to whether the Indemnitee is entitled to be indemnified hereunder,
the burden of proof shall be on the Company to establish that the Indemnitee is not so entitled.
For the purpose of this Section 8, Indemnitee will be deemed to have been “successful on the
merits” upon termination of any Proceeding or of any claim, issue or matter therein, by the winning
of a motion to dismiss (with or without prejudice), motion for summary judgment or settlement (with
or without court approval).
9. Contribution. If the indemnification
provided for in Section 2 above for any reason is
held by a court of competent jurisdiction to be unavailable to an Indemnitee in respect of any
losses, claims, damages, expenses or liabilities referred to therein, then the Company, in lieu of
indemnifying Indemnitee thereunder, shall contribute to the amount paid or payable by Indemnitee as
a result of such losses, claims, damages, expenses or liabilities: (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Indemnitee, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Indemnitee in connection with the action or inaction
which resulted in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations. In connection with the registration of the Company’s securities,
the relative benefits received by the Company and the Indemnitee shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting expenses) received
by the Company and the Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the securities so offered.
The relative fault of the Company and the Indemnitee shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or the
Indemnitee and the parties’ relative intent, knowledge, access to information and opportunity. No
person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933, as amended) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
10. Presumption of Entitlement. In
making any determination concerning Indemnitee’s right to
indemnification, there shall be a presumption that Indemnitee has satisfied the applicable standard
of conduct, and the Company may overcome such presumption only by its adducing evidence to the
contrary. Any determination concerning Indemnitee’s right to indemnification that is adverse to
Indemnitee may be challenged by the Indemnitee in the Court of Chancery of the State of Delaware.
No determination by the Company (including without limitation by its directors or any Independent
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.
11. Selection of Counsel. With respect
to any Proceeding as to which Indemnitee notifies the
Company of the commencement thereof, the Company will be entitled to participate in the Proceeding
at its own expense and except as otherwise provided below, to the extent the Company so wishes, it
may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice
from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company
shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently
incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ
legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from the
Company of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the
employment of legal counsel by Indemnitee has been authorized by the Company; (ii) Indemnitee has
reasonably determined that there may be a conflict of interest between Indemnitee and the Company
in the defense of the Proceeding; (iii) after a Change in Control, the employment of counsel by
Indemnitee has been approved by the independent counsel appointed pursuant to Section 6 hereof or
(iv) the Company shall not in fact have employed counsel to assume the defense of such Proceeding,
in each of which cases all Expenses of the Proceeding shall be borne by 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 Indemnitee shall have made the determination provided for in (ii) above or
under the circumstances provided for in (iii) and (iv) above.
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12. Set-Off. The Company’s
obligation to indemnify, hold harmless, exonerate or advance
Expenses hereunder to an Indemnitee who is or was serving at the request of the Company as a
director, officer, employee, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, its
participants or beneficiaries, including as deemed fiduciary thereto, shall be reduced by any
amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments
or advancement of expenses from the Company, other corporation, partnership, joint venture, trust
or other enterprise, as applicable. Notwithstanding any other provision of this Agreement to the
contrary: (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion
any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage
among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and
performance of all its obligations under this Agreement, and (ii) the Company shall perform fully
its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has
pursued, as applicable, any indemnification, advancement, hold harmless, exoneration, contribution
or insurance coverage rights against any person or entity other than the Company.
13. Non-Exclusivity. The rights of the
Indemnitee hereunder shall be in addition to any other
rights the Indemnitee may have under any statute, provision of the Company’s Certificate of
Incorporation or Bylaws, vote of stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity while holding such office. To
the extent that a change in the DGCL permits greater indemnification by agreement than would be
afforded currently under the Company’s Certificate of Incorporation and Bylaws and this Agreement,
it is the intent of the parties hereto that the Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
14. Liability Insurance. 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 Event, 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. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has directors’ and officers’ liability insurance in
effect, the Company shall give prompt notice of the Indemnifiable Event to the insurers in
accordance with the procedures set forth in the respective policies.
15. Settlement of Claims. The Company
shall not be liable to indemnify the Indemnitee under
this Agreement (a) for any amounts paid in settlement of any action or claim effected without the
Company’s written consent, which consent shall not be unreasonably withheld; or (b) for any
judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action. The Company shall be permitted to settle any action
except that it shall not settle any action or claim in any manner which would impose any penalty or
limitation on the Indemnitee without Indemnitee’s written consent, which may be given or withheld
in Indemnitee’s sole discretion.
16. No Presumption. For purposes of
this Agreement, to the fullest extent permitted by law,
the termination of any Proceeding, action, suit or claim, by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that the Indemnitee did not meet any particular standard
of conduct or have any particular belief or that a court has determined that indemnification is not
permitted by applicable law.
17. Period of Limitations. No legal
action shall be brought and no cause of action shall be
asserted by or on behalf of the Company or any affiliate of the Company against the Indemnitee, the
Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action, or such longer period as may be
required by state or federal law under the circumstances, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
18. Amendment of this Agreement. No
supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor
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shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
19. Primacy of Indemnification.
Notwithstanding that the Indemnitee may have certain rights
to indemnification, advancement of expenses and/or insurance provided by other persons
(collectively, the “Other Indemnitors”), the Company: (i) shall be the indemnitor of first
resort (i.e., its obligations to the Indemnitee are primary and any obligation of the Other
Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities
incurred by the Indemnitee are secondary); and (ii) shall required to advance the full amount of
expenses incurred by the Indemnitee and shall be liable for the full amount of all Expenses,
without regard to any rights the Indemnitee may have against any of the Other Indemnitors. No
advancement or payment by the Other Indemnitors on behalf of the Indemnitee with respect to any
claim for which the Indemnitee has sought indemnification from the corporation shall affect the
immediately preceding sentence, and the Other Indemnitors shall have a right of contribution and/or
be subrogated to the extent of such advancement or payment to all of the rights of recovery of the
Indemnitee against the Company. The Company and the Indemnitee agree that the Other Indemnitors
are express third party beneficiaries of the terms of this Section 19.
20. Subrogation. In the event of
payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee (other
than against the Other Indemnitors), who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
21. No Duplication of Payments. Except
as otherwise set forth in Section 19 above, the
Company shall not be liable under this Agreement to make any payment in connection with any claim
made against Indemnitee to the extent the Indemnitee has otherwise actually received payment (under
any insurance policy, Bylaw, vote, agreement or otherwise) of the amounts otherwise indemnifiable
hereunder.
22. Binding Effect. This Agreement
shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs and personal and legal representatives.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as
a director or officer of the Company or of any other enterprise at the Company’s request.
23. Severability. The provisions of
this Agreement shall be severable in the event that any
of the provisions hereof (including any provision within a single section, paragraph or sentence)
is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
24. Governing Law. This Agreement shall
be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such State without giving effect to the principles of conflicts of laws.
25. Counterparts. This Agreement may be
executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
26. Notices. All notices, demands and
other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if delivered by hand, against
receipt, or mailed, postage prepaid, certified or registered mail, return receipt requested, and
addressed to the Company at:
7
Mindspeed Technologies, Inc.
0000 XxxXxxxxx Xxxxxxxxx, Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Secretary
0000 XxxXxxxxx Xxxxxxxxx, Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Secretary
and to the Indemnitee at:
Notice of change of address shall be effective only when done in accordance with this Section.
All notices complying with this Section shall be deemed to have been received on the date of
delivery or on the third business day after mailing.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the day first set forth above.
| THE COMPANY: MINDSPEED TECHNOLOGIES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: |
||||
| Signature | ||||
| Print Name: | ||||
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EXHIBIT A
FORM OF UNDERTAKING
The undersigned is the Indemnitee as defined in that certain Indemnification Agreement dated
_________________ between the undersigned and Mindspeed Technologies, Inc. (the
“Indemnification Agreement”). Capitalized terms not otherwise defined herein shall have the
meanings give in such agreement.
As a condition to receiving Expense Advances, Indemnitee agrees that, if, when and to the extent
that a final judicial determination is made that Indemnitee would not be permitted to be so
indemnified under applicable law, the Indemnitee shall reimburse the Company, without interest, for
all amounts theretofore paid by the Company to Indemnitee pursuant to the Indemnification Agreement
within 90 days of the Company’s demand, but only to the extent that Indemnitee is ultimately found
not to be entitled to be indemnified by the Company under the terms of the Indemnification
Agreement, the charter documents of the Company (including its organizing documents and bylaws) and
applicable state law.
This undertaking is intended to meet, and shall be construed to meet, any requirements for an
undertaking that may be a condition precedent to the undersigned due receipt of the advancement of
legal fees, pursuant to any relevant state or corporate law; moreover, this undertaking shall not
be construed as extending beyond those requirements.
This Agreement shall not affect in any manner rights which Indemnitee may have against the Company,
any insurer or any other person to seek indemnification for or reimbursement of any expenses
referred to herein or any judgment which may be rendered in any litigation or proceeding.
Date:
|
[Indemnitee] |
10
