EXHIBIT 10.17
AMIS HOLDINGS, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is made as of [?],
2002 by and between AMIS Holdings, Inc., a Delaware corporation (the "COMPANY"),
and [?] (the "INDEMNITEE").
WHEREAS, the Company and the Indemnitee recognize the difficulty in
obtaining directors' and officers' liability insurance, the cost of such
insurance and the limited scope of coverage of such insurance;
WHEREAS, the Company and the Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting officers and
directors to expensive litigation risks at the same time as the availability and
coverage of liability insurance has been severely limited;
WHEREAS, the Indemnitee does not regard the current protection
available as adequate under the present circumstances, and the Indemnitee and
other officers and directors of the Company may not be willing to continue to
serve as officers and directors without additional protection; and
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as the Indemnitee, to serve as officers and
directors of the Company and to indemnify its officers and directors so as to
provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Company and the Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third Party Actions. The Company shall indemnify and
hold harmless the Indemnitee if the Indemnitee was or is a party or is
threatened to be made a party to, or is involved in any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason
of the fact that the Indemnitee is or was a director or officer of the Company,
or is or was serving at the request of the Company as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably incurred by
the Indemnitee in connection with such action, suit or proceeding if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, had no reasonable cause to believe
the Indemnitee's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, in itself, create a presumption that the Indemnitee did not act in
good faith and in a manner which the Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the
Indemnitee's conduct was unlawful.
(b) Actions by or in the Right of the Company. The
Company shall indemnify and hold harmless the Indemnitee if the Indemnitee was
or is a party or is threatened to be made a party to, or is involved in any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director or officer of the Company, or is or was serving
at the request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by the Indemnitee in connection with
the defense or settlement of such action or suit if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, except that, if applicable law so
provides, no indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the Delaware Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which the Delaware Court of Chancery or such other court shall
deem proper. Notwithstanding any other provision of this Agreement, the
Indemnitee shall not be indemnified hereunder for any expenses or amounts paid
in settlement with respect to any action to recover short-swing profits under
Section 16(b) of the Securities Exchange Act of 1934, as amended.
(c) Mandatory Payment of Expenses. To the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Subsections (a) and (b) of this
Section 1 or in defense of any claim, issue or matter therein, the Indemnitee
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by the Indemnitee in connection therewith.
(d) Determination of Conduct. Any indemnification under
Subsections (a) and (b) of this Section 1 (unless ordered by a court) shall be
made by the Company only as authorized in the specific case upon a determination
that the indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
Subsections (a) and (b) of this Section 1. Such determination shall be made (1)
by a majority vote
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of the disinterested directors, even though less than a quorum, (2) by
independent legal counsel in a written opinion, or (3) by the stockholders.
Notwithstanding the foregoing, the Indemnitee shall be entitled to contest any
determination that the Indemnitee has not met the applicable standard of conduct
set forth in Subsections (a) and (b) of this Section 1 by petitioning a court of
competent jurisdiction.
(e) Selection of Independent Counsel. If the
determination of entitlement to indemnification is to be made by independent
counsel pursuant to Subsection (d) of this Section 1, the independent counsel
shall be selected as provided in this Subsection (e). The independent counsel
shall be selected jointly by the Indemnitee and the Company. In the event the
Indemnitee and the Company cannot agree on a selection for the independent
counsel, either party may petition the Delaware Court of Chancery or other court
of competent jurisdiction to resolve the issue or to make its own provisions for
the selection of independent counsel. The Company shall pay any and all
reasonable fees and expenses of independent counsel incurred by such independent
counsel in connection with acting pursuant to Subsection (d) of this Section 1,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Subsection (e), regardless of the manner in which such
independent counsel was selected or appointed.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding by the Indemnitee, if
the Indemnitee is determined to be entitled to indemnification pursuant to
Subsection (a) or (b) of Section 1, shall be paid by the Company in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the Indemnitee to repay such amount if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Company as authorized by this Agreement (the "UNDERTAKING"); provided,
however, that the Company shall not be required to advance expenses to the
Indemnitee in connection with any proceeding (or part thereof) initiated by the
Indemnitee unless the proceeding was authorized in advance by the board of
directors of the Company; and provided further that no advance shall be made by
the Company to the Indemnitee in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is reasonably and
promptly made (i) by a majority vote of disinterested directors or (ii) by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate clearly
and convincingly that the Indemnitee acted in bad faith or in a manner that the
Indemnitee did not believe to be in or not opposed to the best interests of the
Company. The Indemnitee shall be entitled to receive interim payments of
expenses pursuant to this Subsection (a) unless and until such defense may be
finally adjudicated by court order or judgment from which no further right of
appeal exists.
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(b) Notice/Cooperation by the Indemnitee. The Indemnitee
shall, as a condition precedent to his or her right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
claim made against the Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company at the address shown on the signature
page of this Agreement (or such other address as the Company shall designate in
writing to the Indemnitee). In addition, the Indemnitee shall give the Company
such information and cooperation as it may reasonably require and as shall be
within the Indemnitee's power.
(c) Procedure. Any indemnification and advances
determined proper in accordance with Subsection (d) of Section 1 shall be made
no later than 45 days after such determination. If a claim under this Agreement,
under any statute, or under any provision of the Company's Amended and Restated
Certificate of Incorporation or Amended and Restated Bylaws providing for
indemnification, is not paid in full by the Company within 45 days after such
determination, the Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the claim and,
subject to Section 13 of this Agreement, the Indemnitee shall also be entitled
to be paid for the expenses (including attorneys' fees) of bringing such action.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that the Indemnitee has not met
the standards of conduct which make it permissible under applicable law for the
Company to indemnify the Indemnitee for the amount claimed.
(d) Notice to Insurers. If, at the time of the receipt of
a notice of a claim pursuant to Section 2(b) hereof, the Company has director
and officer liability insurance in effect, the Company shall give prompt notice
of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all reasonable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall
be obligated under Section 2(a) hereof to pay the expenses of any proceeding
against the Indemnitee, the Company, if appropriate, shall be entitled to assume
the defense of such proceeding, with counsel approved by the Indemnitee (such
approval not to be unreasonably withheld), upon the delivery to the Indemnitee
of written notice of its election so to do. After delivery of such notice,
approval of such counsel by the Indemnitee and the retention of such counsel by
the Company, the Company will not be liable to the Indemnitee under this
Agreement for any fees of counsel subsequently incurred by the Indemnitee with
respect to the same proceeding, provided that (i) the Indemnitee shall have the
right to
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employ his or her counsel in any such proceeding at the Indemnitee's expense;
and (ii) if (A) the employment of counsel by the Indemnitee has been previously
authorized by the Company, (B) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of any such defense, or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such proceeding, then the fees and
expenses of the Indemnitee's counsel shall be at the expense of the Company.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company's
Amended and Restated Certificate of Incorporation, the Company's Amended and
Restated Bylaws or by statute. In the event of any change in any applicable law,
statute or rule which narrows the right of a Delaware corporation to indemnify a
member of its board of directors or an officer, such changes, to the extent not
otherwise required by such law, statute or rule to be applied to this Agreement
shall have no effect on this Agreement or the parties' rights and obligations
hereunder.
(b) Nonexclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which the Indemnitee
may be entitled under the Company's Amended and Restated Certificate of
Incorporation, its Amended and Restated Bylaws, any agreement, any vote of
shareholders or disinterested directors, the Delaware General Corporation Law,
or otherwise, both as to action in the Indemnitee's official capacity and as to
action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to the Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he or
she may have ceased to serve in such capacity at the time of any action, suit or
other covered proceeding.
4. Partial Indemnification. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him or her in the investigation, defense, appeal or settlement of
any civil or criminal action, suit or proceeding, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion of such expenses, judgments, fines or penalties to which the
Indemnitee is entitled.
5. Mutual Acknowledgment. Both the Company and the Indemnitee
acknowledge that in certain instances, Federal law or applicable public policy
may prohibit the Company from indemnifying its directors and officers under this
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Agreement or otherwise. The Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company's right
under public policy to indemnify the Indemnitee.
6. Officer and Director Liability Insurance. The Company may,
from time to time, make the good faith determination whether or not it is
practicable for the Company to obtain and maintain a policy or policies of
insurance with reputable insurance companies providing the officers and
directors of the Company with coverage for losses from wrongful acts, or to
ensure the Company's performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance, the
Indemnitee shall be named as an insured in such a manner as to provide the
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors, if the Indemnitee is a director; or of the
Company's officers, if the Indemnitee is not a director of the Company, but is
an officer; or of the Company's key employees, if the Indemnitee is not an
officer or director, but is a key employee. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if the
Indemnitee is covered by similar insurance maintained by a subsidiary or parent
of the Company. However, the Company's decision whether or not to adopt and
maintain such insurance shall not affect in any way its obligations to indemnify
the Indemnitee under this Agreement or otherwise.
7. Severability. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 7. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify the Indemnitee to the fullest extent permitted by any
applicable portion of this Agreement that shall not have been invalidated, and
the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
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(a) Claims Initiated by the Indemnitee. To indemnify or
advance expenses to the Indemnitee with respect to proceedings or claims
initiated or brought voluntarily by the Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors has approved the initiation or bringing
of such suit.
(b) Lack of Good Faith. To indemnify the Indemnitee for
any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if a court
of competent jurisdiction determines that each of the material assertions made
by the Indemnitee in such proceeding was not made in good faith or was
frivolous.
(c) Insured Claims. To indemnify the Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to the Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Company.
(d) Claims Under Section 16(b). To indemnify the
Indemnitee for expenses and the payment of profits arising from the purchase and
sale by the Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor statute.
9. Construction of Certain Phrases. For purposes of this
Agreement, references to the "Company" shall include any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
if the Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, the Indemnitee shall
stand in the same position under the provisions of this Agreement with respect
to the resulting or surviving corporation as the Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.
10. Effectiveness. This Agreement shall be deemed to be effective
as of the commencement date of the Indemnitee's employment as an Officer or
Director of the Company.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
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12. Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns, and shall inure to the benefit of
the Indemnitee and the Indemnitee's estate, heirs, legal representatives and
assigns.
13. Attorneys' Fees. In the event that any action is instituted by
the Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, the Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys' fees, incurred by the Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee as a basis for such action were not made in good faith or were
frivolous. In the event of an action instituted by or in the name of the Company
under this Agreement or to enforce or interpret any of the terms of this
Agreement, the Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by the Indemnitee in defense of
such action (including with respect to the Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such action were
made in bad faith or were frivolous.
14. Notice. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party addressee, on the
date of such receipt, or (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this
Agreement, or as subsequently modified by written notice.
15. Consent to Jurisdiction. The Company and the Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the state courts of the State of
Delaware.
16. Choice of Law. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of Delaware.
17. Modification. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. All prior
negotiations, agreements and understandings between the parties with respect
thereto are superseded hereby. This Agreement may not be modified or amended
except by an instrument in writing signed by or on behalf of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AMIS HOLDINGS, INC.
By: ________________________
Name:
Title:
AGREED TO AND ACCEPTED:
INDEMNITEE
____________________________________
____________________________________
____________________________________
____________________________________
(address)
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