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EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and entered into
this ___ day of February, 1998, between Broadcom Corporation, a California
corporation (the "Corporation"), and ____________________ ("Officer").
WHEREAS, Officer, an officer of the Corporation, performs a
valuable service in such capacity for the Corporation;
WHEREAS, the Articles of Incorporation and Bylaws of the
Corporation authorize and permit contracts between the Corporation and an
officer of its Board of Directors with respect to indemnification of such
officers;
WHEREAS, in accordance with the authorization as provided by
the California General Corporation Law, as amended ("Code"), the Corporation
may purchase and maintain a policy or policies of Directors and Officers
Liability Insurance ("D & O Insurance"), covering certain liabilities which may
be incurred by Officer in his or her performance as an officer of the
Corporation; and
WHEREAS, as a result of developments affecting the terms,
scope and availability of D & O Insurance there exists general uncertainty as
to the extent of protection afforded members of the Board of Directors by such
D & O Insurance and by statutory and bylaw indemnification provisions.
NOW, THEREFORE, in consideration of Officer's service as an
officer, the parties hereto agree as follows:
1. Indemnity of Officer. The Corporation hereby agrees to hold
harmless and indemnify Officer to the fullest extent authorized by the
provisions of the Code, as it may be amended from time to time.
2. Additional Indemnity. Subject only to the limitations set
forth in Section 3 hereof, the Corporation hereby further agrees to hold
harmless and indemnify Officer:
a. against any and all expenses (including attorneys' fees),
witness fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Officer in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Corporation) to
which Officer is, was, or at any time becomes a party, or is threatened to be
made a party, by reason of the fact that Officer is, was, or at any time becomes
an officer, director, employee or agent
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of the Corporation, or is or was serving or at any time serves at the request
of the Corporation as an officer, director, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise; and
b. otherwise to the fullest extent as may be provided to
Officer by the Corporation under the Articles of Incorporation of the
Corporation and the Code.
3. Limitations on Additional Indemnity.
a. No indemnity pursuant to Section 2 hereof shall be paid
by the Corporation for any of the following:
(i) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which the Officer is
indemnified pursuant to Section 1 hereof or pursuant to any D & O Insurance
purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to Officer if it
shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) on account of Officer's acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law;
(iv) on account of any action, claim or proceeding
(other than a proceeding referred to in Section 8(b) hereof) initiated by
Officer unless such action, claim or proceeding was authorized in the specific
case by action of the Board of Directors;
(v) on account of Officer's conduct which is the
subject of an action, suit or proceeding described in Section 7(c)(ii) hereof;
or
(vi) if a final decision by a Court having
jurisdiction in the matter shall determine that such indemnification is not
lawful (and, in this respect, both the Corporation and Officer have been advised
that the Securities and Exchange Commission believes that indemnification for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication).
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b. In addition to those limitations set forth above in
paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an
action by or in the right of the Corporation shall be paid by the Corporation
for any of the following:
(i) on account of acts or omissions that Officer
believes to be contrary to the best interests of the Corporation or its
shareholders or that involve the absence of good faith on the part of Officer;
(ii) with respect to any transaction from which
Officer derived an improper personal benefit;
(iii) on account of acts or omissions that show a
reckless disregard for Officer's duty to the Corporation or its shareholders in
circumstances in which Officer was aware, or should have been aware, in the
ordinary course of performing an officer's duties, of a risk of serious injury
to the Corporation or its shareholders;
(iv) on account of acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of Officer's
duty to the corporation or its shareholders;
(v) in respect of any claim, issue or matter as to
which Officer shall have been adjudged to be liable to the Corporation in the
performance of Officer's duty to the Corporation and its shareholders, unless
and only to the extent that the court in which such proceeding is or was pending
shall determine upon application that, in view of all the circumstances of the
case, Officer is fairly and reasonably entitled to indemnity for expenses and
then only to the extent that the court shall determine;
(vi) of amounts paid in settling or otherwise
disposing of a pending action without court approval; or
(vii) of expenses incurred in defending a pending
action which is settled or otherwise disposed of without court approval.
4. Contribution. If the indemnification provided in Sections 1
and 2 hereof is unavailable by reason of a Court decision described in
subsection 3(a)(vi) hereof based on grounds other than any of those set forth in
subsections 3(a)(ii) through (v) hereof or in subsections 3(b)(i) through (iv)
hereof, then in respect of any threatened, pending or completed action, suit or
proceeding in which the Corporation is jointly liable with Officer (or would be
if joined in such action, suit or proceeding), the Corporation shall contribute
to the amount of expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred
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and paid or payable by Officer in such proportion as is appropriate to reflect
(i) the relative benefits received by the Corporation on the one hand and
Officer on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Corporation on the one
hand and of Officer on the other in connection with the events which resulted
in such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Corporation on
the one hand and of Officer on the other shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines or settlement amounts. The Corporation
agrees that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
5. Continuation of Obligations. All agreements and obligations
of the Corporation contained herein shall continue during the period Officer is
an officer, director, employee or agent of the Corporation (or is or was serving
at the request of the Corporation as an officer, director, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise) and shall continue thereafter so long as Officer shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal or investigative, by reason of the fact
that Officer was an officer of the Corporation or serving in any other capacity
referred to herein.
6. Notification and Defense of Claim. Not later than thirty
(30) days after receipt by Officer of notice of the commencement of any action,
suit or proceeding, Officer will, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the Corporation of the
commencement thereof; but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Officer otherwise than under
this Agreement. With respect to any such action, suit or proceeding as to which
Officer notifies the Corporation of the commencement thereof:
a. the Corporation will be entitled to participate therein
at its own expense;
b. except as otherwise provided below, to the extent that it
may wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Officer. After notice from the Corporation to Officer of its
election so as to assume the defense thereof, the Corporation will not be liable
to Officer under this Agreement for any legal or other expenses subsequently
incurred by Officer in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Officer shall have the
right to employ its counsel in such action, suit or proceeding but the fees and
expenses of such counsel incurred after notice from the Corporation of
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its assumption of the defense thereof shall be at the expense of Officer unless
(i) the employment of counsel by Officer has been authorized by the
Corporation, (ii) Officer shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Officer in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Officer's separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of
any action, suit or proceeding brought by or on behalf of the Corporation or as
to which Officer shall have made the conclusion provided for in (ii) above; and
c. the Corporation shall not be liable to indemnify Officer
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall be permitted to
settle any action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Officer without Officer's
written consent. Neither the Corporation nor Officer will unreasonably withhold
its consent to any proposed settlement.
7. Advancement and Repayment of Expenses.
a. In the event that Officer employs his own counsel
pursuant to Section 6(b)(i) through (iii) above, the Corporation shall advance
to Officer, prior to any final disposition of any threatened or pending action,
suit or proceeding, whether civil, criminal, administrative or investigative,
any and all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within ten (10)
days after receiving copies of invoices presented to Officer for such expenses;
and
b. Officer agrees that Officer will reimburse the
Corporation for all reasonable expenses paid by the Corporation in defending any
civil or criminal action, suit or proceeding against Officer in the event and
only to the extent it shall be ultimately determined by a final judicial
decision (from which there is no right of appeal) that Officer is not entitled,
under applicable law, the Bylaws, this Agreement or otherwise, to be indemnified
by the Corporation for such expenses.
c. Notwithstanding the foregoing, the Corporation shall not
be required to advance such expenses to Officer if Officer (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by the Corporation and approved by a majority
of the Board which alleges willful misappropriation of corporate assets by
Officer, disclosure of confidential information in violation of Officer's
fiduciary or contractual obligations to the Corporation, or any other willful
and deliberate breach in bad faith of Officer's duty to the Corporation or its
shareholders.
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8. Enforcement. In the event Officer is required to bring any
action to enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse Officer for all of
Officer's reasonable fees and expenses in bringing and pursuing such action.
9. Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Officer, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
10. Non-Exclusivity of Rights. The rights conferred on Officer
by this Agreement shall not be exclusive of any other right which Officer may
have or hereafter acquire under any statute, provision of the Corporation's
Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
Officers, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office.
11. Survival of Rights. The rights conferred on Officer by this
Agreement shall continue after Officer has ceased to be an officer, director,
employee or other agent of the Corporation and shall inure to the benefit of
Officer's heirs, executors and administrators.
12. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
13. Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California.
14. Binding Effect. This Agreement shall be binding upon
Officer and upon the Corporation, its successors and assigns, and shall inure to
the benefit of Officer, his heirs, personal representatives and assigns and to
the benefit of the Corporation, its successors and assigns.
15. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
BROADCOM CORPORATION
By
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
OFFICER
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