INDEMNIFICATION AGREEMENT
Exhibit 10.49
This Agreement entered into and effective this day of , 20 , (the
“Agreement”), by and between MagnaChip Semiconductor Corporation, a Delaware corporation
(the “Company,”) and (the “Indemnitee”).
RECITALS
WHEREAS, it is essential to the Company that it be able to retain and attract as directors to
serve on its Board of Directors (the “Board”) and officers, the most capable persons
available;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification and advancement of Expenses (as defined below) against
litigation risks and Expenses (regardless, among other things, of any amendment to or revocation of
the Certificate (as defined below) or Bylaws (as defined below) or any change in the ownership of
the Company or the composition of the Board);
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance Expenses on behalf of, such persons to the fullest extent
permitted under applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, the Company’s Certificate of Incorporation (the “Certificate”) and Bylaws
(the “Bylaws”) require it to indemnify its directors and officers and permit it to make
other indemnification arrangements and agreements;
WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate and the
Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, both the Company and the Indemnitee recognize the increased risk of litigation and
other claims being asserted against directors and officers of companies in today’s environment;
[and]
WHEREAS, Indemnitee does not regard the protection available under the Certificate and the
Bylaws and insurance as adequate in the present circumstances, and may not be willing to serve as a
director without adequate protection, and the Company desires Indemnitee to serve in such capacity.
Indemnitee is willing to serve, continue to serve and to take on additional service for or on
behalf of the Company on the condition that he be so indemnified; [and]
[WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided by the
Other Indemnitors (as defined below), which Indemnitee and the Other Indemnitors intend to be
secondary to the primary obligation of the Company to indemnify Indemnitee as provided herein, with
the Company’s acknowledgement and agreement to the foregoing being a material condition to
Indemnitee’s willingness to serve on the Board.]
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the mutual sufficiency of which is hereby
acknowledged, the Company and Indemnitee hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings given to them below:
“Affiliate” means, in relation to an Entity (a) such Entity’s general partner, manager
and investment manager and affiliates thereof; (b) any entity with the same general partner,
manager or investment manager as such Entity or a general partner,
manager or investment manager
affiliated with such general partner, manager or investment manager of such Entity; and (c) any
other Entity that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the first Entity, the general partner of such
Entity, investment manager of such Entity or an affiliate of such Entity, general partner or
investment manager. The term “control” (including the terms “controlled by” and “under common
control with”) means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or credit arrangement, as trustee or executor, or otherwise.
“Disinterested Director” means a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification is sought by the Indemnitee.
“Entity” means any corporation, partnership, limited liability company, joint venture,
trust, foundation, association, organization or other legal entity.
“Expenses” means all fees, costs and expenses incurred by Indemnitee in connection
with any Proceeding (as defined below), including, without limitation, reasonable attorneys’ fees,
disbursements and retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Articles VI and VII of this Agreement), fees and
disbursements of expert witnesses, private investigators and professional advisors (including,
without limitation, accountants and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs, telephone and fax transmission
charges, postage, delivery services, secretarial services, and other disbursements and expenses.
Expenses also shall include Expenses incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for, and other costs relating to any
cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
“Independent Legal Counsel” means an attorney or firm of attorneys who is experienced
in matters of corporate law and who shall not have otherwise performed services for the Company or
Indemnitee or any other party to the particular claim within the last five years (other than with
respect to serving as Independent Legal Counsel with respect to matters concerning the
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rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity
agreements).
“Liabilities” means judgments, damages, liabilities, losses, penalties (whether civil,
criminal or otherwise), foreign, federal, state and local taxes (including taxes payable by
Indemnitee as a result of the actual or deemed receipt of payments under this Agreement), fines
(including excise taxes and penalties assessed with respect to employee benefit plans) and amounts
paid in settlement and all interest, assessments and other charges paid or payable in connection
with or in respect of any of the foregoing.
[“Other Indemnitors” means (a) any employer of an Indemnitee; (b) any Entity in which
an Indemnitee is a partner, member or equity holder; (c) any Entity for whom an Indemnitee is
serving as a director of the Company at the request of such Entity; (d) any insurer of an Other
Indemnitor, and in each such case, the Indemnitee has certain rights to indemnification and/or
insurance provided by such Entity in connection with their service as a director of the Company.]
“Proceeding” means any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation (whether instituted by the Company
or any governmental agency or any other party), administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or investigative, whether formal
or informal, including a proceeding initiated by Indemnitee pursuant to Article VI of this
Agreement to enforce Indemnitee’s rights hereunder.
“Status” describes the status of a person who is serving, has served or may be deemed
to have served (i) as a director, member, manager, partner, tax matters partner, trustee,
fiduciary, controlling person, officer, employee, or agent of the Company or any Subsidiary of the
Company, (ii) in any capacity with respect to any employee benefit plan of the Company, or (iii) as
a director, manager, partner, trustee, fiduciary, controlling person, officer, employee, or agent
of, or in any other capacity with, any other Entity at the request of the Company.
“Subsidiary” means any corporation, partnership, limited liability company, joint
venture, trust or other Entity of which the Company owns (either directly or through or together
with another Subsidiary of the Company) either (i) a general partner, managing member or similar
interest of such Entity or (ii) (A) 50% or more of the voting power of the voting capital stock or
other voting equity interests of such corporation, partnership, limited liability company, joint
venture or other Entity, or (B) 50% or more of the outstanding voting capital stock or other voting
equity interests of such corporation, partnership, limited liability company, joint venture or
other Entity.
ARTICLE II
SERVICES OF INDEMNITEE
SERVICES OF INDEMNITEE
2.1 Services of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a director [or officer]
of the Company, so long as the Indemnitee is duly elected or appointed and until such time as the
Indemnitee is removed, terminated, or tenders a resignation.
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ARTICLE III
AGREEMENT TO INDEMNIFY
AGREEMENT TO INDEMNIFY
3.1 General.
(a) To the fullest extent permitted by Delaware law in effect on the date hereof and as
amended from time to time, the Company shall indemnify, defend and hold harmless the Indemnitee
from any Liabilities and Expenses incurred by the Indemnitee in connection with any Proceeding to
which Indemnitee is a party (or is threatened to be made a party) or is otherwise involved
(including as a witness) by reason of (or arising in whole or in part out of) (a) Indemnitee’s
Status or (b) any act performed or omitted to be performed by the Indemnitee in connection with
such Status, in each case whether the event or occurrence to which such Proceeding relates (if any)
occurred or was omitted before, on, or after the date of this Agreement (collectively,
“Indemnifiable Amounts”); provided, however, that no change in Delaware law
shall have the effect of reducing the benefits available to the Indemnitee hereunder based on
Delaware law as in effect on the date hereof or as such benefits may improve as a result of
amendments after the date hereof.
(b) Notwithstanding the foregoing, the indemnification obligations of the Company under
Section 3.1(a) above shall be subject to the condition that it shall not have been determined in
accordance with Section 3.1(c) below that Indemnitee would not be permitted to be indemnified under
applicable law; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a determination that he
or she should be indemnified under applicable law, any determination made by the Reviewing Party
(as defined below) that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding until a final judicial determination is made (as to which all rights of appeal
therefrom have been exhausted or lapsed) that Indemnitee is not entitled to be so indemnified under
applicable law. Any determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and the Indemnitee. For purposes of this Agreement, a “Reviewing Party”
shall mean (i) if so requested in writing by the Indemnitee, Independent Legal Counsel, selected by
the Company and approved by the Indemnitee (which approval shall not be unreasonably withheld,
conditioned or delayed), whose determination shall be given in a written opinion to the Board; or
(ii) (A) a majority of the Disinterested Directors, even though less than a quorum of the Board, or
(B) a committee of Disinterested Directors designated by majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, Independent Legal Counsel, selected by the
Company and approved by the Indemnitee (which approval shall not be unreasonably withheld,
conditioned or delayed), whose determination shall be given in a written opinion to the Board, or
(D) the Company’s stockholders in accordance with applicable law. The Company agrees to pay the
reasonable fees and expenses of any Independent Legal Counsel.
(c) The Reviewing Party shall determine whether or not the Indemnitee would be permitted to be
indemnified under applicable law. If the Reviewing Party shall not have made a determination
within sixty (60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification absent (i) a misstatement by
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Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law;
provided, however, that such 60-day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the Reviewing Party in good faith requires such
additional time to obtain or evaluate documentation and/or information relating thereto. Notice in
writing of any determination as to the Indemnitee’s entitlement to indemnification shall be
delivered to the Indemnitee promptly after such determination is made, and if such determination of
entitlement to indemnification has been made by Independent Legal Counsel in a written opinion to
the Board, then such notice shall be accompanied by a copy of such written opinion. If the
Reviewing Party determines that Indemnitee would not be permitted to be indemnified in whole or in
part under applicable law, 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
seeking an initial determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the
Company hereby consents to service of process and to appear in any such proceeding.
(d) To the extent that the Indemnitee has been successful on the merits or otherwise in
defense of any or all Proceedings, or in defense of any claim, issue, or matter therein, to which
Indemnitee is a party (or is threatened to be made a party) or is otherwise involved by reason of
(or arising out of) (i) Indemnitee’s Status or (ii) any act performed or omitted to be performed by
the Indemnitee in connection with such Status, in each case, whether the event or occurrence to
which such Proceeding relates occurred or was omitted before, on, or after the date of this
Agreement, the Indemnitee shall be indemnified against all Indemnifiable Amounts actually and
reasonably incurred in connection therewith, notwithstanding any determination by the Reviewing
Party that the Indemnitee is not entitled to indemnification under applicable law. For purposes of
this Agreement, the termination of any claim, issue, or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such claim, issue, or
matter.
3.2 Indemnification for Additional Expenses. To the fullest extent permissible under
applicable law, the Company shall indemnify, or cause the indemnification of, the Indemnitee
against any and all Expenses and, if requested by the Indemnitee, shall advance such Expenses to
the Indemnitee subject to and in accordance with Article V, which are incurred by or on behalf of
the Indemnitee in connection with any action (i) brought by the Indemnitee for indemnification or
an Expense Advance by the Company under this Agreement or provision of the Certificate or Bylaws
now or hereafter in effect, (ii) brought by the Company against Indemnitee seeking to recover any
advances of Expenses, and/or (iii) brought by the Indemnitee for recovery under any directors’ and
officers’ liability insurance policies maintained by the Company.
3.3 Insurance. The Company shall pay for standard director and officer liability
insurance covering liability of the Indemnitee for performance of his or her duties in such
amounts, and with the scope of such coverage, to be customary for a Company of like size with
similar operations. If, at the time of the receipt by the Company of a notice of a claim from
Indemnitee pursuant to this Agreement, the Company has liability insurance in effect which may
cover such claim, the Company shall use commercially reasonable efforts to provide prompt written
notice of the commencement of such claim to such insurers in accordance with the
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procedures set forth in each of such policies. The Company shall thereafter use commercially
reasonable efforts to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such claim in accordance with the terms of such policies.
3.4 Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that the Indemnitee is required to be a witness by reason of
Indemnitee’s Status in any Proceeding to which the Indemnitee is not a party, he or she shall be
indemnified against all Expenses actually incurred by him or her or on his or her behalf in
connection therewith.
3.5 Conclusive Presumption Regarding Standard of Care. In making any determination
required to be made under law with respect to entitlement to indemnification hereunder, the person,
persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence.
3.6 Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment
under this Article III or Article IV of this Agreement and the basis for the claim. If it is
determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of
all amounts to which the Indemnitee is determined to be entitled shall be made within twenty (20)
calendar days after such determination. If it is determined that the Indemnitee is not entitled to
indemnification, then the written notice to the Indemnitee (or, if such determination has been made
by Independent Legal Counsel in a written opinion, the copy of such written opinion delivered to
the Indemnitee) shall disclose the basis upon which such determination is based. At the request of
the Company, Indemnitee shall furnish such documentation and information as are reasonably
available to Indemnitee and reasonably necessary to evaluate whether the Indemnitee is entitled to
indemnification hereunder. Notwithstanding the foregoing, the failure or delay in providing such
request and other information shall not affect Indemnitee’s right to indemnification or advancement
of Expenses hereunder unless, and only to the extent that, the Company is materially prejudiced
thereby.
3.7 Reliance as Safe Harbor. Without limiting the remaining provisions of this
Agreement, to the fullest extent permissible under applicable law, the Indemnitee shall be entitled
to indemnification for any action or omission to act undertaken (a) in good faith reliance upon the
records of the Company, including its financial statements, or upon information, opinions, reports
or statements furnished to the Indemnitee by the officers or employees of the Company or any of its
Subsidiaries in the course of their duties, or by committees of the Board or by any other person or
Entity as to matters the Indemnitee reasonably believes are within such other person’s or Entity’s
professional or expert competence, or (b) on behalf of the Company in furtherance of the interests
of the Company in good faith in reliance upon, and in accordance with, the advice of legal counsel
or accountants, provided such legal counsel or accountants were selected with reasonable care by or
on behalf of the Company. In addition, the knowledge and/or actions, or failures to act, of any
director, officer, agent or employee of the Company shall not be imputed to the Indemnitee for
purposes of determining the right to indemnity hereunder.
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3.8 Change in Law. To the extent that a change in law (whether by statute or judicial
decision) shall permit broader indemnification or advancement of Expenses than is provided under
the terms of the Certificate, the Bylaws and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such
extent.
3.9 Effect of Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to determine that
indemnification is payable shall create a presumption that Indemnitee is not entitled to
indemnification hereunder or 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. In
addition, the termination of any proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent shall not create a presumption that Indemnitee is not
entitled to indemnification hereunder or 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.
ARTICLE IV
PARTIAL INDEMNIFICATION
PARTIAL INDEMNIFICATION
4.1 Contribution.
(a) Without diminishing Indemnitee’s rights under Article III hereof, and whether or not the
indemnification provided in Article III hereof is available, in respect of any Proceeding in which
the Company is jointly liable with the Indemnitee (or would be if joined in such Proceeding), the
Company shall (without duplication of amounts paid by the Company under Article III), to the
fullest extent permissible under applicable law, pay, or cause to be paid, in the first instance,
the entire amount of any judgment or settlement of such Proceedings equal to the amount of Expenses
and Liabilities actually incurred and paid or payable by the Indemnitee in proportion to the
relative benefits received by the Company and all officers, directors or employees of the Company,
other than the Indemnitee, who are jointly liable with the Indemnitee (or would be if joined in
such action, suit or proceeding), on the one hand, and the Indemnitee, on the other hand. The
Company shall not enter into any settlement of any Proceedings in which the Company is jointly
liable with the Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against the Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph or Article III hereof, if, for any reason, the Indemnitee shall elect or be required
to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is
jointly liable with the Indemnitee (or would be if joined in such Proceeding), the Company shall
(without duplication with amounts paid the Company under Article III), to the fullest extent
permissible under applicable law, contribute, or cause to be contributed, to the amount of Expenses
and Liabilities actually and reasonably incurred and paid or payable by the Indemnitee in
proportion to the relative benefits received by the Company and all officers, directors or
employees of the Company, other than the Indemnitee, who are jointly liable with the Indemnitee (or
would be if joined in such action, suit or proceeding), on the one hand, and
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the Indemnitee, on the other hand, from the transaction from which such action, suit or
proceeding arose; provided, however, that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law, be further adjusted by reference
to the relative fault of the Company and all officers, directors or employees of the Company, other
than the Indemnitee, who are jointly liable with the Indemnitee (or would be if joined in such
Proceeding), on the one hand, and the Indemnitee, on the other hand, in connection with the events
that resulted in such Expenses and Liabilities, as well as any other equitable considerations which
the law may require to be considered.
(c) To the fullest extent permissible under applicable law, the Company hereby agrees to fully
indemnify and hold the Indemnitee harmless from any claims for contribution which may be brought by
reason of the Indemnitee’s Status by officers, directors or employees of the Company, other than
the Indemnitee, who may be jointly liable with the Company.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to the Indemnitee for any reason whatsoever, the Company, in
lieu of indemnifying the Indemnitee, shall contribute to the amount incurred by the Indemnitee,
whether for Liabilities and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding as determined in a final non-appealable
judgment reached by a court of competent jurisdiction in order to reflect (i) the relative benefits
received by the Company and the Indemnitee as a result of the event(s) and/or transactions(s)
giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and the Indemnitee in connection with such event(s) and/or
transactions(s).
ARTICLE V
ADVANCEMENT OF EXPENSES
ADVANCEMENT OF EXPENSES
5.1 Agreement to Advance Expenses; Undertaking. Subject to Section 3.2 hereof, the
Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding to which Indemnitee is a party (or is threatened to be made a party) or in which
Indemnitee is otherwise involved (including as a witness) by reason of (or arising in whole or in
part out of) such Indemnitee’s Status or an act performed or omitted to be performed by such
Indemnitee in connection with such Status, in each case whether the event of occurrence that gave
rise to such Proceeding (if any) occurred or was omitted before, on, or after the date of this
Agreement (an “Expense Advance”), within twenty (20) days after the receipt by the Company
of a written statement from Indemnitee requesting such advance or advances from time to time.
5.2 Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company
a written request specifying the Expenses for which Indemnitee seeks an advancement under this
Article V, together with documentation evidencing that Indemnitee has incurred or expects to incur
such Expenses. Payment of Expenses, if indemnifiable, under this Article V shall be made no later
than twenty (20) days after the Company’s receipt of such request. Notwithstanding the foregoing,
the failure or delay in providing such request or other information shall not affect Indemnitee’s
right to indemnification or advancement of Expenses hereunder unless, and then only to the extent
that, the Company is materially prejudiced thereby.
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Indemnitee hereby undertakes to repay any Expense Advance if it shall ultimately be determined
by final judicial decision (as to which all rights of appeal therefrom have been exhausted or
lapsed) that the Indemnitee is not entitled to be indemnified under applicable law, this Agreement,
or otherwise. Indemnitee’s obligation to reimburse the Company for any Expense Advance shall be
unsecured and no interest shall be charged thereon.
ARTICLE VI
REMEDIES OF INDEMNITEE
REMEDIES OF INDEMNITEE
6.1 Right to Petition Court. In the event that Indemnitee makes a request for payment
of Indemnifiable Amounts under Article III above or a request for an advancement of Expenses under
Article V above and the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, without limitation as to remedy, Indemnitee may petition
any court in any court in the State of Delaware having subject matter jurisdiction thereof and in
which venue is proper to enforce the Company’s obligations under this Agreement.
6.2 Indemnitee as Plaintiff. Except as provided in Section 3.2 and in the next
sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or advancement of
Expenses with respect to any Proceeding brought by Indemnitee against the Company, any Entity it
controls, or any manager, director, or officer thereof, unless the Company has consented to the
initiation of such Proceeding. This Section shall not apply to (a) affirmative defenses asserted
by Indemnitee or any counterclaims by Indemnitee which are resolved successfully in an action
brought against Indemnitee or (b) a Proceeding instituted by Indemnitee to enforce or interpret
this Agreement.
ARTICLE VII
DEFENSE OF THE UNDERLYING PROCEEDING
DEFENSE OF THE UNDERLYING PROCEEDING
7.1 Notice by Indemnitee. Indemnitee agrees to notify the Company promptly upon being
served with any summons, citation, subpoena, complaint, indictment, information, or other document
relating to any Proceeding which may result in the payment of Indemnifiable Amounts or the
advancement of Expenses hereunder; provided, however, that the failure to give any
such notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any
right of Indemnitee, to receive payments of Indemnifiable Amounts or advancements of Expenses
unless, and then only to the extent of, the Company’s ability to defend in such Proceeding is
materially prejudiced thereby.
7.2 Defense by Company. Subject to the provisions of the last sentence of this
Section 7.2 and of Section 7.3 below, the Company shall have the right to defend Indemnitee in any
Proceeding for which the Company becomes obligated hereunder to pay the Indemnitee’s Expenses with
counsel reasonably satisfactory to the Indemnitee; provided, however that the
Company shall notify Indemnitee of any such decision to defend within ten (10) calendar days of
receipt of notice of any such Proceeding under Section 7.1 above. The Company shall not, without
the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which (a) includes an admission of fault of Indemnitee, (b)
does not include, as an unconditional term thereof, the full release of
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Indemnitee from all liability in respect of such Proceeding, which release shall be in form
and substance reasonably satisfactory to Indemnitee or (c) does not solely involve the payment of
money. The Company shall not be liable to the Indemnitee under this Agreement for any amounts paid
in settlement of any Proceeding relating to an indemnifiable event effected without the Company’s
prior written consent. Neither the Company nor the Indemnitee shall unreasonably withhold its or
his or her consent to any proposed settlement or compromise; provided that the
Indemnitee may withhold consent to any settlement that does not satisfy the clauses (a), (b) and
(c) set forth in this Section 7.2. This Section 7.2 shall not apply to a Proceeding brought by
Indemnitee under Section 3.2 or Section 6.2 above.
7.3 Indemnitee’s Right to Counsel. Notwithstanding the provisions of Section 7.2
above, if, in a Proceeding to which Indemnitee is a party (or threatened to be made a party) or is
otherwise involved (including as a witness) by reason of (or arising in whole or in part out of)
(i) Indemnitee’s Status or (ii) any act performed or omitted to be performed by the Indemnitee in
connection with such Status, in each case whether the event or occurrence to which such Proceeding
relates occurred or was omitted before, on, or after the date of this Agreement, (a) Indemnitee
reasonably concludes that he or she may have separate defenses or counterclaims to assert with
respect to any issue which may not be consistent with the position of other defendants in such
Proceeding, (b) Indemnitee reasonably concludes that a conflict of interest or potential conflict
of interest exists between Indemnitee and the Company, or (c) if the Company fails to assume the
defense of such proceeding in a timely manner, Indemnitee shall be entitled to be represented by
separate legal counsel of Indemnitee’s choice at the expense of the Company. In addition, if the
Company fails to comply with any of its obligations under this Agreement or in the event that the
Company or any other person takes any action to declare this Agreement void or unenforceable, or
institutes any action, suit or proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel
of Indemnitee’s choice, at the expense of the Company, to represent Indemnitee in connection with
any such matter.
ARTICLE VIII
MISCELLANEOUS
MISCELLANEOUS
8.1 Non-Exclusivity; Survival of Rights; Primacy of Indemnification; Subrogation.
(a) The right to payment of Indemnifiable Amounts and advancement of Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights to which Indemnitee may
at any time be entitled under applicable law, the Certificate, the Bylaws, any agreement, a vote of
stockholders, a resolution of the Board or otherwise, of the Company. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee
under this Agreement in respect of any action taken or omitted by such Indemnitee in his Status
prior to such amendment, alteration or repeal. To the extent that a change in the Delaware law,
whether by statute or judicial decision, permits greater indemnification than would be afforded
currently under the Certificate of Incorporation, By-laws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or
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hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy.
(b) [The Company hereby acknowledges that Indemnitee has certain rights to indemnification,
advancement of Expenses and/or insurance provided by the Other Indemnitors. The Company hereby
agrees that (i) the Company is the indemnitor of first resort (i.e., its obligations to Indemnitee
are primary and any obligation of the Other Indemnitors to advance Expenses or to pay Indemnifiable
Amounts are secondary), (ii) that the Company shall be required to advance the full amount of
Expenses incurred by Indemnitee and shall be liable to indemnify the Indemnitee for the full amount
of all Indemnifiable Amounts, in each case to the extent legally permitted and as required by the
terms of this Agreement, the Bylaws and the Certificate (or any other agreement between the Company
and Indemnitee), without regard to any rights Indemnitee may have against the Other Indemnitors,
and, (iii) that the Company irrevocably waives, relinquishes and releases the Other Indemnitors
from any and all claims against the Other Indemnitors for contribution, subrogation or any other
recovery of any kind in respect thereof in connection with any such indemnification or advance of
Expenses to Indemnitee. The Company further agrees that no advancement or payment by the Other
Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought
indemnification from the Company shall affect the foregoing 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 Indemnitee against the Company, who shall execute all papers reasonably
required and shall do all things that may be reasonably necessary to secure such rights, including
the execution of such documents as may be necessary to enable such Other Indemnitors to effectively
bring suit to enforce such rights. The Company and Indemnitee agree that the Other Indemnitors are
express third party beneficiaries of the terms of this Section 8.1(b) and are entitled to enforce
this Section 8.1(b) against the Company as though each such Other Indemnitor were a party to this
Agreement.]
(c) [Except as provided in paragraph (b) above,] in the event of any payment of Indemnifiable
Amounts or Expenses under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee [(other than against the Other Indemnitors)]
against other persons, and Indemnitee shall take, at the request of the Company, commercially
reasonable action necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
(d) [Except as provided in paragraph (b) above,] the Company shall not be liable under this
Agreement to make any payment of Indemnifiable Amounts hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) [Except as provided in paragraph (b) above,] the Company’s obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of Expenses from such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise.
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8.2 Notices. All notices, requests and other communications provided for or permitted
to be given under this Agreement must be in writing and shall be given by personal delivery, by a
nationally recognized overnight delivery service for next day delivery, by facsimile transmission
or by email, as follows (or to such other address as any party may give in a notice given in
accordance with the provisions hereof):
If to the Company:
MagnaChip Semiconductor Corporation
c/o MagnaChip Semiconductor Ltd.
000 Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000 Xxxxx
Attn: General Counsel
Fax: 00-0-0000-0000
c/o MagnaChip Semiconductor Ltd.
000 Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000 Xxxxx
Attn: General Counsel
Fax: 00-0-0000-0000
If to the Indemnitee, to the address, facsimile number or email address set forth on
the signature page hereto.
8.3 Entire Agreement. This Agreement contains the entire understanding of the parties
in respect of the subject matter hereof and supersedes all prior agreements and understandings
(oral or written) between or among the parties with respect to such subject matter;
provided, however, it is agreed that the provisions contained in this Agreement are
a supplement to, and not a substitute for, any provisions regarding the same subject matter
contained in the Certificate, the Bylaws and any employments or similar agreement between the
parties.
8.4 Amendment; Waiver. This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by the Company and Indemnitee. No
failure to exercise, and no delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or succeeding breach of the
same or any other provision, nor shall any waiver be implied from any course of dealing among the
parties. No extension of time for performance of any obligations or other acts hereunder or under
any other agreement shall be deemed to be an extension of the time for performance of any other
obligations or any other acts.
8.5 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, successors and assigns. [Except as set
forth in Section 8.1,] nothing expressed or implied herein shall be construed to give any person
other than the Company or an assignee or designee of the Company any legal or equitable rights
hereunder. The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation, or otherwise) to all or a substantial portion of the business
and/or assets of the Company and/or its Subsidiaries, by written agreement in form and substance
satisfactory to the Indemnitee and his or her counsel, to expressly 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
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effect regardless of whether the Indemnitee continues to serve as an officer and/or director
of the Company or in any other Status. Neither this Agreement nor any duties or responsibilities
pursuant hereto may be assigned by the Company to any other person or Entity without the prior
written consent of the Indemnitee.
8.6 Counterparts. This Agreement may be executed in any number of counterparts, each
of which will be deemed an original but all of which together will constitute one and the same
instrument. This Agreement will become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
8.7 Interpretation. When a reference is made in this Agreement to an article,
section, paragraph, clause, schedule or exhibit, such reference shall be deemed to be to this
Agreement unless otherwise indicated. The headings contained herein are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.”
8.8 Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to any choice of law principles.
8.9 Jurisdiction and Waiver of Jury Trial.
(a) ANY SUIT, ACTION OR PROCEEDING AGAINST ANY PARTY ARISING OUT OF, OR WITH RESPECT TO, THIS
AGREEMENT OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF SHALL BE BROUGHT EXCLUSIVELY IN
THE COURT OF CHANCERY OF THE STATE OF DELAWARE AND THE PARTIES HERETO ACCEPT THE EXCLUSIVE
JURISDICTION OF SUCH COURT FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING.
(b) IN ADDITION, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY JUDGMENT ENTERED BY ANY COURT IN
RESPECT THEREOF BROUGHT IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE AND HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDINGS BROUGHT IN THE COURT OF CHANCERY
OF THE STATE OF DELAWARE HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY
EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO
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ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER,
(ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 8.9(c).
8.10 Arm’s Length Negotiations; Drafting. Each party herein expressly represents and
warrants to all other parties hereto that before executing this Agreement, said party has fully
informed itself of the terms, contents, conditions and effects of this Agreement; said party has
relied solely and completely upon its own judgment in executing this Agreement; said party has had
the opportunity to seek and has obtained the advice of counsel before executing this Agreement;
said party has acted voluntarily and of its own free will in executing this Agreement; said party
is not acting under duress, whether economic or physical, in executing this Agreement; and this
Agreement are the result of arm’s length negotiations conducted by and among the parties and their
respective counsel. This Agreement shall be deemed drafted jointly by the parties and nothing
shall be construed against one party or another as the drafting party.
8.11 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law. In the event that
any provision of this Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its being extended over too great a period of time or too large a
geographic area or over too great a range of activities, it shall be interpreted to extend only
over the maximum lesser period of time, geographic area, or range of activities as to which it may
be enforceable. Each of the covenants herein shall be deemed a separate and severable covenant.
It is the desire and intent of the parties that the provisions of this Agreement shall be enforced
to the fullest extent permissible under applicable law. Accordingly, a court of competent
jurisdiction is directed to modify any provision to the extent necessary to render such provision
enforceable.
8.12 Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, the Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the
Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief or any combination
of the foregoing as the Indemnitee may elect to pursue.
8.13 Survival. This Agreement shall continue in force for the benefit of the
Indemnitee and such heirs, personal representatives, executors and administrators after Indemnitee
has ceased to have Status. All agreements and obligations of the Company contained herein shall
continue during the period Indemnitee has any Status and shall continue thereafter so long as
14
Indemnitee shall be subject or potentially subject to any Proceeding (or any proceeding
commenced under Article VI hereof) by reason of (or arising in whole or in part out of) (i)
Indemnitee’s Status or (ii) any act performed or omitted to be performed by the Indemnitee in
connection with such Status, in each case whether the event or occurrence to which such Proceeding
relates occurred or was omitted before, on, or after the date of this Agreement, and whether or not
Indemnitee is acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve in any Status.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
MAGNACHIP SEMICONDUCTOR CORPORATION | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
INDEMNITEE | ||||||
Address: | ||||||
Facsimile: | ||||||
E-mail: |
Signature Page to Indemnification Agreement