EXHIBIT 10.10
ULTRA CLEAN HOLDINGS, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is made as of
_____________, 20__ by and between Ultra Clean 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, suit or proceeding 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, suit or proceeding, whether civil,
criminal, administrative or investigative, 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),
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, 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 to
the extent that the Delaware Court of Chancery or the court in which such
action, suit or proceeding 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 upon a determination that the indemnification of the
Indemnitee
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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 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 as to the Indemnitee's
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 jointly by the Indemnitee and the Company. In the event the
Indemnitee and the Company cannot agree on the selection of 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 the independent counsel incurred in connection
with acting pursuant to Section 1(d) hereof, 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
connection with any action, suit or proceeding by the Indemnitee, if the
Indemnitee reasonably believes that he is entitled to indemnification pursuant
to Subsection (a) or (b) of Section 1 hereof, 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 pursuant to 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 action, suit or proceeding was authorized in advance
by the board of directors of the Company; 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. Nonetheless, the Indemnitee shall be entitled to
receive interim payments of expenses pursuant to this Subsection (a) unless and
until such
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defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists.
(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
action, suit or proceeding involving 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
cooperate with, and provide such information to, the Company 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 Sections 1 or 2 hereof shall be made no
later than 45 days after such determination. If a claim under this Agreement,
any law, statute or rule, or 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 hereof, 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 required 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 an action, suit or proceeding 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 action, suit or 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 action, suit or proceeding in accordance with the terms of such policies.
(e) Assumption of Defense. In the event the Company shall
be obligated under Section 2(a) hereof to pay the expenses of any action, suit
or proceeding involving the Indemnitee, the Company, if appropriate, shall be
entitled to assume the defense of such action, suit or 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
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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 employ his or her counsel in any such action,
suit or 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 action, suit or 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 the fact 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 law, statute or rule. 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 otherwise be entitled under the Company's Amended and Restated Certificate
of Incorporation, Amended and Restated Bylaws, any agreement, any vote of
shareholders or disinterested directors, the Delaware General Corporation Law or
by law, statute or rule. The indemnification provided under this Agreement shall
continue as to the Indemnitee for any act or omission 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 (including attorneys' fees), judgments, fines or 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 any 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
amounts paid in settlement to which the Indemnitee is entitled.
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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
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 (x) the Company's directors, if the Indemnitee is a director, (y) the
Company's officers, if the Indemnitee is not a director of the Company, but is
an officer or (z) 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 take or not take any act in
violation of applicable law. The Company shall not be in breach of this
Agreement if, pursuant to court order, it is prohibited from performing its
obligations hereunder. 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.
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8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(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 law, statute or rule, 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 material assertion 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 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 by purchase,
consolidation, merger or otherwise which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, 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 service as an officer or
director of the Company.
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11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
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, suit or
proceeding 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 attorneys' fees), incurred by the
Indemnitee with respect to such action, unless as a part of such action, suit or
proceeding the court of competent jurisdiction determines that each material
assertion made by the Indemnitee as a basis for such action, suit or proceeding
was not made in good faith or was 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 of competent jurisdiction determines that each
material defense asserted by the Indemnitee was made in bad faith or was
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, suit or proceeding
which arises out of or relates to this Agreement and agree that any action, suit
or proceeding 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
hereto 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ULTRA CLEAN HOLDINGS, INC.
By: _____________________________
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Agreed and accepted as of the date hereof:
INDEMNITEE
____________________________________
____________________________________
____________________________________
____________________________________
(address)
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