INDEMNITY AGREEMENT
Exhibit 4.35
INDEMNITY AGREEMENT
This Agreement is made and entered into as of this 31st day of October, 2007, by and
between Avago Technologies Limited, a public company limited by shares organized under the laws of
the Republic of Singapore (the “Company”), and (“Officer”).
Recitals
Whereas, Officer performs a valuable service to the Company in his or her
capacity(ies) with the Company;
Whereas, the members of the Company have adopted a Memorandum and Articles of
Association (the “Articles”) providing for the indemnification of the Company’s directors,
auditors, secretary and other officers, as authorized by the Companies Act (Chapter 50 of
Singapore), as amended from time to time (the “Act”);
Whereas, the Articles and the Act permit contracts between the Company and its
directors, auditors, secretary and other officers with respect to indemnification of such persons;
and
Whereas, in order to induce Officer to continue to serve in his or her capacity(ies)
with the Company, the Company has determined and agreed to enter into this Agreement with Officer;
Now, Therefore, in consideration of Officer’s continued service after the date
hereof, the parties hereto agree as follows:
Agreement
1. Services to the Company. Officer will serve, at the will of the Company or under separate
contract, if any such contract exists, as an officer of the Company, and/or as a director, officer
or other fiduciary of one or more Company affiliates (including any employee benefit plan of the
Company) (collectively “Company”) faithfully and to the best of his or her ability so long as he or
she is duly elected and qualified in accordance with the provisions of the Act, the Articles or
other applicable charter documents of the Company or such affiliate; provided, however, that
Officer may at any time and for any reason resign from such position (subject to any contractual
obligation Officer may have assumed apart from this Agreement), and that the Company or any
affiliate shall have no obligation under this Agreement to continue Officer in any such position.
2. Indemnity of Officer; Insurance. Subject to, and to the maximum extent permitted by the
Articles, the Act or other applicable law, the Company hereby agrees to hold harmless and indemnify
Officer from and against all matters of whatsoever nature and howsoever arising by reason of or in
connection with Officer’s provision of services under clause 1 above. During all periods that
Officer is providing services under clause 1 above, the Company shall maintain directors’ and
officers’ insurance for the benefit of Officer with insurers, and at coverage levels, customary for
companies comparable in size and business to the Company.
3. Additional Indemnity. In addition to and not in limitation of the indemnification
otherwise provided for herein, and subject only to the exclusions set forth in clause 4 hereof, the
Company hereby further agrees to hold harmless and indemnify Officer:
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(a) against any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that Officer becomes legally
obligated to pay because of any claim or claims made against or by him or her in connection with
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative (including an action by or in the right of the
Company) to which Officer is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Officer is, was or at any time becomes a director, auditor,
secretary, other officer or agent of the Company, or is or was serving or at any time serves at the
Company’s request as a director, officer, employee or other agent of another company, partnership,
joint venture, trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as the Company may provide to Officer under Article 151 of
the Articles.
4. Limitations on Indemnity. The Company will not provide indemnity pursuant to clauses 3 and
5 hereof:
(a) on account of any determination or judgment against Officer solely for an accounting of
profits made from the purchase or sale by Officer of securities of the Company pursuant to the
provisions of Section 16(b) of the United States Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any United States federal, state or local statutory law;
(b) on account of Officer’s conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) in respect of any liability that cannot be indemnified by reason of section 172 of the
Act;
(d) on account of Officer’s conduct that is established by a final judgment as constituting a
breach of Officer’s duty of loyalty to the Company or resulting in any personal profit or advantage
to which Officer was not legally entitled;
(e) for which payment is actually made to Officer under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, article or agreement, except in respect
of any excess beyond payment under such insurance, clause, article or agreement;
(f) if indemnification is not lawful under the Act or otherwise; or
(g) in connection with any proceeding (or part thereof) initiated by Officer, or any
proceeding by Officer against the Company or its directors, officers, employees or other officers,
unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in the Company under the Act, or
(iv) the proceeding is initiated pursuant to clause 8 hereof.
5. Continuation of Indemnity. All agreements and obligations of the Company contained herein
shall continue during the period Officer is a director, officer, employee or other agent of the
Company (or is or was serving at the request of the Company as a director, officer, employee or
other agent of another company, partnership, joint venture, trust, employee benefit plan or other
enterprise) and shall continue thereafter so long as Officer shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative, by reason of the fact that Officer was serving in
the capacity referred to herein.
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6. Partial Indemnification. Subject to the exclusions in clause 4 hereof, Officer shall be
entitled under this Agreement to indemnification by the Company for a portion of the expenses
(including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that Officer becomes legally obligated to pay in connection with any action,
suit or proceeding referred to in clause 3 hereof even if not entitled hereunder to indemnification
for the total amount thereof, and the Company shall indemnify Officer for the portion thereof to
which Officer is entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after Officer’s receipt
of notice of the commencement of any action, suit or proceeding with respect to which Officer may
make a claim in respect thereof against the Company under this Agreement, Officer will notify the
Company of the commencement thereof; but any omission to so notify the Company will not relieve the
Company of any liability it may have to Officer under this Agreement except to the extent, and only
to the extent, it can be shown that Officer’s failure to timely notify directly caused damage to
Officer or the Company in such proceeding. Further, no such failure to notify shall relieve the
Company of any liability it may have to Officer otherwise than under this Agreement.
With respect to any such action, suit or proceeding for which Officer provides notice to the
Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Company may, at its option and jointly with any
other indemnifying party similarly notified and electing to assume such defense, assume the defense
thereof, with counsel reasonably satisfactory to Officer. After notice from the Company to Officer
of its election to assume the defense thereof, the Company will not be liable to Officer under this
Agreement for any legal or other expenses subsequently incurred by Officer in connection with the
defense thereof, except for reasonable costs of investigation or otherwise as provided below.
Officer shall have the right to employ separate counsel in such action, suit or proceeding, but the
fees and expenses of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Officer unless (i) the Company authorizes Officer’s
employment of separate counsel, (ii) Officer reasonably concludes, and so notifies the Company,
that there is an actual conflict of interest between the Company and Officer in the conduct of the
defense of such action, or (iii) the Company shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of Officer’s separate counsel
shall be at the Company’s expense. The Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company or as to which Officer shall have
made the conclusion provided for in clause (ii) above;
(c) the Company shall not be liable to indemnify Officer under this Agreement for any amounts
paid in settlement of any action or claim effected without its written consent, which shall not be
unreasonably withheld. The Company shall be permitted to settle any action in its discretion,
provided, however, that any such settlement of an action with respect to which Officer is to be
indemnified hereunder shall include a full, unconditional release of Officer, and provided further
that no settlement may impose any penalty or limitation on Officer without Officer’s written
consent, which Officer may give or withhold in Officer’s sole discretion;
(d) the Company shall advance all expenses Officer incurs in connection with such proceeding
promptly following Officer’s delivery of a written (i) request therefor and (ii) undertaking to
repay said amounts if it is determined ultimately that Officer is not entitled to be indemnified
under the provisions of this Agreement, the Articles, the Act or otherwise; and
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(e) nothing in this clause 7 shall entitle Officer to any indemnification, reimbursement or
payment other than in accordance with section 172 of the Act and applicable law.
8. Enforcement. Any right to indemnification or advances granted by this Agreement to Officer
shall be enforceable by or on behalf of Officer in any court of competent jurisdiction if (i) the
claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of
such claim is made within sixty (60) days of request therefor. Officer, in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also the expense of
prosecuting his or her claim. It shall be a defense to any action for which a claim for
indemnification is made under clauses 3 or 5 hereof that Officer is not entitled to indemnification
because of the limitations set forth in clause 4 hereof. Neither the failure of the Company
(including its Board of Directors or its members) to have made a determination prior to the
commencement of such enforcement action that indemnification of Officer is proper in the
circumstances, nor an actual determination by the Company (including its Board of Directors or its
members) that such indemnification is improper shall be a defense to the action or create a
presumption that Officer is not entitled to indemnification under this Agreement or otherwise.
9. 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 Officer, who shall execute all
documents required and shall do all acts that may be necessary to secure such rights and to enable
the Company effectively to bring suit to enforce such rights.
10. Non-Exclusivity of Rights. The rights conferred on Officer by this Agreement shall not be
exclusive of any other right which Officer may have or hereafter acquire under any statute,
provision of the Company’s Memorandum and Articles of Association, agreement, vote of members or
directors, or otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding office.
11. Survival of Rights.
(a) The rights conferred on Officer by this Agreement shall continue after Officer has ceased
to be a director, officer, employee or other agent of the Company or to serve at the request of the
Company as a director, officer, employee or other agent of another company, partnership, joint
venture, trust, employee benefit plan or other enterprise, and shall inure to the benefit of
Officer’s heirs, executors and administrators.
(b) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company,
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.
12. Separability. Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof shall be held to be
invalid for any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated
in its entirety on any ground, then the Company shall nevertheless indemnify Officer to the fullest
extent provided by the Articles, the Act or any other applicable law.
13. Governing Law. This Agreement shall be interpreted and enforced in accordance with the
laws of the Republic of Singapore.
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14. Amendment and Termination. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both parties hereto.
15. Identical Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall for all purposes be deemed to be an original but all of which together shall
constitute but one and the same Agreement. Only one such counterpart need be produced to evidence
the existence of this Agreement.
16. Headings. The headings of the sections of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the construction
hereof.
17. Notices. All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the
party to whom such communication was directed or (ii) upon the third business day after the date on
which such communication was mailed if mailed by certified or registered mail with postage prepaid:
| (a) | If to Officer, at the address indicated on the signature page hereof. | ||
| (b) | If to the Company, to: |
Avago Technologies Limited
Xx. 0 Xxxxxx Xxxxxx 0
Xxxxxxxxx 000000
Attn: Secretary
Xx. 0 Xxxxxx Xxxxxx 0
Xxxxxxxxx 000000
Attn: Secretary
With copy to:
Avago Technologies U.S. Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx 00
Xxx Xxxx, XX 00000
Attention: General Counsel
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx 00
Xxx Xxxx, XX 00000
Attention: General Counsel
or to such other address as the Company may have furnished to Officer.
18. Merger. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any and all prior agreements and
understandings between them with respect thereto.
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In Witness Whereof, the parties hereto have executed this Agreement on and as of the
day and year first above written.
| Avago Technologies Limited | ||||||
| By: | ||||||
| Title: | ||||||
| Officer | ||||||
| Address: | ||||||
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