TVIA, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.3
TVIA, INC.
This Indemnification Agreement (“Agreement”) is made and entered into by and between
Tvia, Inc., a Delaware corporation (the “Company”), and ___(“Indemnitee”), effective as of October 13, 2008.
WHEREAS, Indemnitee’s service to the Company substantially benefits the Company;
WHEREAS, competent and experienced individuals are reluctant to serve as directors, officers
or employees of corporations or in certain other capacities unless they are provided with adequate
protection through insurance or indemnification against the risks of claims and actions against
them arising out of such service;
WHEREAS, Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and any insurance as adequate under the present circumstances, and
Indemnitee may not be willing to serve as a director or officer without additional protection;
WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, it is
reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify,
and to advance expenses on behalf of, Indemnitee as permitted by applicable law; and
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Company’s certificate of incorporation and bylaws, and any resolutions adopted pursuant
thereto, and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement be
deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, the Company and Indemnitee do hereby agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is or was a director, trustee,
general partner, managing member, officer, employee, agent or fiduciary of the Company or any other
Enterprise.
(b) “DGCL” means the General Corporation Law of the State of Delaware.
(c) “Enterprise” means the Company and any other corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, trustee, general partner, managing member,
officer, employee, agent or fiduciary.
(d) “Expenses” include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also include (i) 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, supersedeas bond or other
appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by
Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement or under any directors’ and officers’ liability insurance policies maintained
by the Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or
the amount of judgments or fines against Indemnitee.
(e) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or proceeding, whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or
otherwise by reason of (i) the fact that Indemnitee is or was a director, officer or employee of
the Company, (ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s part
while acting as a director, officer or employee of the Company, or (iii) the fact that he or she is
or was serving at the request of the Company as a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary of the Company or any other Enterprise, in each case
whether or not serving in such capacity at the time any liability or Expense is incurred for which
indemnification or advancement of expenses can be provided under this Agreement.
(f) Reference to “other enterprises” shall include employee benefit plans; references to
"fines” shall include any excise taxes assessed on a person with respect to any employee benefit
plan; references to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to in this Agreement.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a
party to or a participant in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or
her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she 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 that his or her conduct was unlawful.
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be
liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any
court in which the Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or
such other court shall deem proper.
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4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the
extent that Indemnitee is a party to or a participant in and is successful (on the merits or
otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. To the extent permitted by applicable law, if
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, in defense of one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with (a) each successfully resolved
claim, issue or matter and (b) any claim, issue or matter related to any such successfully resolved
claim, issuer or matter. For purposes of this Section 4, 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.
5. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to
the fullest extent permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify
Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to
be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right
of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf
in connection with the Proceeding or any claim, issue or matter therein.
(b) For purposes of Section 6(a), the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include, but not be limited to:
(i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any amendment to or
replacement of the DGCL; and
(ii) the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not
be obligated under this Agreement to make any indemnity in connection with any Proceeding (or any
part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or
common law, if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements);
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(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee from the sale of securities
of the Company, as required in each case under the Securities Exchange Act of 1934, as amended
(including any such reimbursements that arise from an accounting restatement of the Company
pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the
payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements);
(d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers, employees, agents or other
indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant
part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law, (iii)
otherwise authorized in Section 12(d) or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
8. Advances of Expenses. The Company shall advance, to the extent not prohibited by
law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement
shall be made as soon as reasonably practicable, but in any event no later than sixty (60) days,
after the receipt by the Company of a written statement or statements requesting such advances from
time to time (which shall include invoices received by Indemnitee in connection with such Expenses
but, in the case of invoices in connection with legal services, any references to legal work
performed or to expenditure made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice). Advances shall be unsecured and interest
free and made without regard to Indemnitee’s ability to repay such advances. Indemnitee hereby
undertakes to repay any advance to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company. This Section 8 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to this Agreement.
9. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably
practicable following the receipt by Indemnitee of written notice thereof. The written notification
to the Company shall include a description of the nature of the Proceeding and the facts underlying
the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and
any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights,
except to the extent that such failure or delay materially prejudices the Company.
(b) If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof,
the Company has director and officer liability insurance in effect, the Company shall give prompt
notice of the commencement of the Proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all reasonably necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies.
(c) In the event the Company may be obligated to make any indemnity in connection with a
Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel
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approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery
to Indemnitee of written notice of its election to do so. After delivery of such notice, approval
of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemnitee
with respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of any
such Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’s
counsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company,
(ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflict
of interest between the Company and Indemnitee in the conduct of any such defense such that
Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative and
reasonably incurred in connection with Indemnitee’s role in the Proceeding despite the Company’s
assumption of the defense, (iv) the Company is not financially or legally able to perform its
indemnification obligations or (v) the Company shall not have retained, or shall not continue to
retain, such counsel to defend such Proceeding. The Company shall have the right to conduct such
defense as it sees fit in its sole discretion. Regardless of any provision in this Agreement,
Indemnitee shall have the right to employ Indemnitee’s counsel in any Proceeding at Indemnitee’s
personal expense. The Company shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the Company.
(d) Indemnitee shall give the Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e) The Company shall not be liable to indemnify Indemnitee for any settlement of any
Proceeding (or any part thereof) without the Company’s prior written consent, which shall not be
unreasonably withheld.
(f) The Company shall not settle any Proceeding (or any part thereof) without Indemnitee’s
prior written consent, which shall not be unreasonably withheld, provided, however, that the
Company shall not settle any Proceeding if the penalty would involve more than the payment of
monetary damages, either in a case at law or equity.
10. Procedure upon Application for Indemnification.
(a) To obtain indemnification, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is reasonably available to
Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification following the final disposition of such Proceeding. The Company shall,
as soon as reasonably practicable after receipt of such a request for indemnification, advise the
board of directors that Indemnitee has requested indemnification.
(b) If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within fourteen (14) days after such determination. Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’ fees and disbursements) reasonably
incurred by Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company, to the extent permitted by applicable law.
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11. Presumptions and Effect of Certain Proceedings.
(a) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which he or she reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
(b) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account
of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the
Enterprise or its board of directors or counsel selected by any committee of the board of directors
or (iv) information or records given or reports made to the Enterprise by an independent certified
public accountant, an appraiser, investment banker or other expert selected with reasonable care by
the Enterprise or its board of directors or any committee of the board of directors. The provisions
of this Section 11(b) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(c) Neither the knowledge, actions nor failure to act of any other director, officer, agent or
employee of the Enterprise shall be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
12. Remedies of Indemnitee.
(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 or 12(d) of this
Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant
to Section 10 of this Agreement within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification pursuant to this Agreement is not made (A)
within fourteen (14) days after a determination has been made that Indemnitee is entitled to
indemnification or (B) with respect to indemnification pursuant to Sections 4, 5 and 12(d) of this
Agreement, within thirty (30) days after receipt by the Company of a written request therefor, or
(v) the Company or any other person or entity takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided
to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of his or her
entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
or her 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 180 days following the
date on which Indemnitee first has the right to commence such proceeding pursuant to this Section
12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding
brought by Indemnitee to enforce his or her rights under Section 4 of this Agreement. The Company
shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration in
accordance with this Agreement.
(b) Neither (i) the failure of the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel or stockholders to have made a determination that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of
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conduct, nor (ii) an actual determination by the Company, its board of directors, any
committee or subgroup of the board of directors, Independent Counsel or stockholders that
Indemnitee has not met the applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the
event that a determination shall have been made pursuant to Section 10 of this Agreement that
Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration,
on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In
any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to
the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) To the fullest extent not prohibited by law, the Company shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in
any such court or before any such arbitrator that the Company is bound by all the provisions of
this Agreement. If a determination shall have been made pursuant to Section 10 of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statements not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (as soon as reasonably practicable, but in any event no later than sixty (60)
days, after receipt by the Company of a written request therefor) advance such Expenses to
Indemnitee, that are incurred by Indemnitee in connection with any action for indemnification or
advancement of Expenses from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, to the extent Indemnitee is successful in
such action and to the extent not prohibited by law.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification shall be required to be made prior to the final disposition of the
Proceeding.
13. Contribution. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
Expenses, judgments, fines or amounts paid or to be paid in settlement, 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 in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the event(s) and
transaction(s) giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the
Company (and its other directors, officers, employees and agents) in connection with such event(s)
and transaction(s).
14. Non-exclusivity. The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company’s certificate of
incorporation or bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement shall adversely affect any right of
Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his
or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change
in Delaware law, whether by statute or judicial decision, permits greater
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indemnification or advancement of Expenses 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 Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change, subject to the restrictions expressly set forth herein or therein. Except as expressly
set forth herein, 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 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.
15. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is
provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment
for such amounts under any insurance policy, contract, agreement or otherwise.
16. Insurance. To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, trustees, general partners, managing members,
officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall
be covered by such policy or policies to the same extent as the most favorably-insured persons
under such policy or policies in a comparable position.
17. Subrogation. In the event of any payment under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all 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.
18. Services to the Company. Indemnitee agrees to serve as a director or officer or
employee of the Company or, at the request of the Company, as a director, trustee, general partner,
managing member, officer, employee, agent or fiduciary of another Enterprise, for so long as
Indemnitee is duly elected or appointed or until Indemnitee tenders his or her resignation.
Indemnitee may at any time and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any
employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and
Indemnitee may be discharged at any time for any reason, with or without cause, with or without
notice, except as may be otherwise expressly provided in any executed, written employment contract
between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing
formal severance policies adopted by the Company’s board of directors or, with respect to service
as a director or officer of the Company, the Company’s certificate of incorporation or bylaws or
the DGCL.
19. Duration. This Agreement shall continue until and terminate upon the later of (a)
ten (10) years after the date that Indemnitee shall have ceased to serve as a director or officer
of the Company or as a director, trustee, general partner, managing member, officer, employee,
agent or fiduciary of any other Enterprise, as applicable; or (b) one (1) year after the final
termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto.
20. Successors. This Agreement shall be binding upon the Company and its successors
and assigns, including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or
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substantially all of the business or assets of the Company, and shall inure to the benefit of
Indemnitee and Indemnitee’s heirs, executors and administrators. The Company shall require and
cause 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, by written agreement, 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.
21. Severability. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
22. Enforcement. The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to
serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director or officer of the Company.
23. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the
Company’s certificate of incorporation and bylaws and applicable law.
24. Modification and Waiver. No supplement, modification or amendment to this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall constitute or be deemed a waiver of any other provision of
this Agreement nor shall any waiver constitute a continuing waiver.
25. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed, or (c) mailed by reputable overnight courier and receipted for
by the party to whom said notice or other communication shall have been directed:
(a) If to Indemnitee, at such address as indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
(b) If to the Company to:
Tvia, Inc.
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Chief Executive Officer
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Chief Executive Officer
or to any other current address as may have been furnished to Indemnitee by
the Company.
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26. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Delaware Court of
Chancery, and not in any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court of
Chancery for purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process
in the State of Delaware, The Corporation Services Company, Wilmington, Delaware as its agent in
the State of Delaware as such party’s agent for acceptance of legal process in connection with any
such action or proceeding against such party with the same legal force and validity as if served
upon such party personally within the State of Delaware, (iv) waive any objection to the laying of
venue of any such action or proceeding in the Delaware Court of Chancery, and (v) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
of Chancery has been brought in an improper or inconvenient forum.
27. 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
one and the same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this Agreement.
28. Captions. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement to be effective as of the day and year
first above written.
| TVIA, INC. |
||||
| (Signature) | ||||
| (Print name) | ||||
| (Title) | ||||
| (Date) | ||||
| INDEMNITEE |
||||
| (Signature) | ||||
| (Print name) | ||||
| (Street address) | ||||
| (City, State Zip Code) | ||||
| (Date) | ||||
