GENESIS MICROCHIP INC. INDEMNIFICATION AGREEMENT
Exhibit
10.1
GENESIS
MICROCHIP INC.
This
Indemnification Agreement (“Agreement”)
is
made as of March 2, 2007, by and between Genesis Microchip Inc., a Delaware
corporation (the “Company”),
and
_________________________ (“Indemnitee”).
Recitals
A. The
Company desires to attract and retain qualified directors, officers, employees
and other agents, and to provide them with protection against liability and
expenses incurred while acting in that capacity;
B. The
Certificate of Incorporation and Bylaws of the Company contain provisions for
indemnifying directors and officers of the Company, and the Certificate of
Incorporation, Bylaws and Delaware law contemplate that separate contracts
may
be entered into between the Company and its directors and officers, employees
and other agents with respect to their indemnification by the Company, which
contracts may provide greater protection than is afforded by the Certificate
of
Incorporation and Bylaws;
C. The
Company understands that Indemnitee has reservations about serving or continuing
to serve the Company without adequate protection against personal liability
arising from such service, and that it is also of critical importance to
Indemnitee that adequate provision be made for advancing costs and expenses
of
legal defense; and
D. The
Board
of Directors of the Company has approved as being in the best interests of
the
Company indemnity contracts substantially in the form of this Agreement for
directors and officers of the Company and its subsidiaries and for certain
other
employees and agents of the Company designated by the Board of
Directors.
NOW,
THEREFORE, in order to induce Indemnitee to serve or to continue to serve as
a
director and/or officer of the Company, and in consideration of Indemnitee’s
service to the Company, the parties agree as follows:
1. Contractual
Indemnity.
In
addition to the indemnification provisions of the Certificate of Incorporation
and Bylaws of the Company, the Company hereby agrees, subject to the limitations
of Sections 2 and 5 hereof:
(a) To
indemnify, defend and hold Indemnitee harmless to the greatest extent possible
under applicable law from and against any and all judgments, fines, penalties,
amounts paid in settlement and any other amounts reasonably incurred or suffered
by Indemnitee (including attorneys’ fees) in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether formal or informal, including
an
action by or in the right of the Company, to which Indemnitee is, was or at
any
time becomes a party or
witness or other participant, or is threatened to be or in good faith believes
will be made a party, by reason of the fact that Indemnitee is, was or at any
time becomes a director, officer, employee or agent of the Company or is or
was
serving or at any time serves at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (collectively referred to hereafter as a “Claim”),
whether or not arising prior to the date of this Agreement.
(b) To
pay
any and all expenses reasonably incurred by Indemnitee in defending any Claim
or
Claims (including reasonable attorneys’ fees and other reasonable costs of
investigation and defense) (the “Expenses”), as the same are incurred and in
advance of the final disposition of any such Claim or Claims (it being
understood that amounts actually paid in settlement of any such action or
proceeding shall not be treated as Expenses under this Agreement and such
amounts actually paid in settlement shall be treated as set forth in Section
4(c) of this Agreement). The execution of this agreement constitutes an
undertaking by Indemnitee to reimburse such amounts if it shall be ultimately
determined that Indemnitee (i) is not entitled to be indemnified by the
Company under this Agreement, and (ii) is not entitled to be indemnified by
the Company under the Certificate of Incorporation or the Bylaws of the Company
or under applicable law. The advances to be made hereunder shall be paid by
the
Company to Indemnitee within twenty (20) days following receipt by the
Company of a written request therefor from Indemnitee. Indemnitee’s obligation
to reimburse the Company for the Expenses so advanced shall be unsecured and
no
interest shall be charged thereon.
The
termination of any action or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that (i) Indemnitee
did not act in good faith and in a manner which Indemnitee reasonably believed
to be in the best interests of the Company, or (ii) with respect to any
criminal action or proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
2. Limitations
on Contractual Indemnity.
Any
other provision herein to the contrary notwithstanding, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a) To
indemnify or advance Expenses to the Indemnitee
(i) If
a
court of competent jurisdiction, by final judgment or decree, shall determine
that (i) the Claim or Claims in respect of which indemnity is sought arise
from Indemnitee’s fraudulent, dishonest or willful misconduct, or (ii) such
indemnity is not permitted under applicable law;
(ii) with
respect to proceedings or claims initiated or brought voluntarily by Indemnitee
and not by way of defense, except (i) with respect to proceedings brought
in good faith to establish or enforce a right to indemnification or advancement
under this Agreement or any other statute or law, or (ii) at the Company’s
discretion, in specific cases if the Board of Directors of the Company has
approved the initiation or bringing of such suit;
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(iii) 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 Indemnitee by an insurance carrier
under a policy of directors’ and officers’ liability insurance maintained by the
Company; or
(iv) if
the
Indemnitee shall have entered a plea of guilty or nolo contendere, or an
equivalent plea acknowledging guilt with respect to any Claim for which
advancement of Expenses are being sought;
or
(b) to
indemnify the Indemnitee:
(i) on
account of any suit in which judgment is rendered for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company in
violation of the provisions of Section 16(b) of the Securities Exchange Act
of 1934 and amendments thereto or similar provisions of any federal, state
or
local statutory law;
(ii) for
any
acts or omissions or transactions from which a director may not be relieved
of
liability under the Delaware General Corporation Law; or
(iii) on
account of any suit in which Indemnitee is adjudged to have misused or
misappropriated non-public information, or otherwise misused Indemnitee’s status
as an “insider” of the Company, in connection with any purchase or sale by
Indemnitee of securities of the Company.
3. Continuation
of Contractual Indemnity.
Subject
to the termination provisions of Section 11, all agreements and obligations
of the Company contained herein shall continue for so long as Indemnitee shall
be subject to any possible action, suit, proceeding or other assertion of a
Claim or Claims.
4. Notification
and Defense of Claim.
If any
action, suit, proceeding or other Claim is brought against Indemnitee in respect
of which indemnity may be sought under this Agreement:
(a) Indemnitee
will promptly notify the Company in writing of the commencement thereof, and
the
Company and any other indemnifying party similarly notified will be entitled
to
participate therein at its own expense or to assume the defense thereof and
to
employ counsel reasonably satisfactory to Indemnitee. 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 Indemnitee). Notice shall be deemed
received three (3) business days after the date postmarked if sent by
domestic certified or registered mail, properly addressed; otherwise notice
shall be deemed received when such notice shall actually be received by the
Company. The omission to notify the Company will not relieve the Company from
any liability that it may have to Indemnitee, except that the Company shall
not
be liable to indemnify the Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely opportunity
as a result of Indemnitees’ failure to provide notice, at its expense, to
participate in the defense of such action, and the lack of such notice
materially prejudiced the Company’s ability to participate in defense of such
action. The Company’s liability hereunder shall not be excused if participation
in the defense of the Claim by the Company was barred by this
Agreement.
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(b) Indemnitee
shall have the right to employ its own counsel in connection with any such
Claim
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of Indemnitee unless (i) the Company shall
not have assumed the defense of the Claim and employed counsel for such defense,
or (ii) the Indemnitee shall have reasonably concluded that joint
representation is inappropriate under applicable standards of professional
conduct due to a material conflict of interest between Indemnitee and the
Company or the other joint clients of employed counsel. In either of these
events the reasonable fees and expenses of such counsel to the Indemnitee shall
be borne by the Company. However, in no event will the Company be obligated
to
pay the fees or expenses of more than one firm of attorneys representing
Indemnitee and any other agents of the Company in connection with any one Claim
or separate but substantially similar or related Claims in the same jurisdiction
arising out of the same general allegations or circumstances.
(c) The
Company shall not be liable to indemnify Indemnitee for any amounts paid in
settlement of any Claim effected without the Company’s written consent, and the
Company shall not settle any Claim in a manner which would impose any penalty
or
limitation on Indemnitee without Indemnitee’s written consent; provided,
however, that neither the Company nor Indemnitee will unreasonably withhold
its
consent to any proposed settlement and, provided further, that if a claim is
settled by the Indemnitee with the Company’s written consent, or if there be a
final judgment or decree for the plaintiff in connection with the Claim by
a
court of competent jurisdiction, the Company shall indemnify and hold harmless
Indemnitee from and against any and all losses, costs, Expenses and liabilities
incurred by reason of such settlement or judgment.
(d) Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.
(e) Any
indemnification provided for in Section 1(a) shall be made no later than
forty-five (45) days after receipt of the written request of Indemnitee. If
a Claim under this Agreement, under any statute, or under any provision of
the
Company’s Certificate of Incorporation or Bylaws providing for indemnification,
is not paid in full by the Company within forty-five (45) days, or any
advance of Expenses pursuant to Section 1(b) is not paid in full by the Company
within twenty (20) days, after a written request for payment thereof has first
been received by the Company, 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 Sections 2 and 13 of this Agreement, Indemnitee
shall also be entitled to be reimbursed for the Expenses (including attorneys’
fees) of bringing such action. It shall be a defense to any such action that
Indemnitee has not met the standards of conduct which make it permissible under
applicable law for the Company to indemnify Indemnitee for the amount claimed
but the burden of proving such defense shall be on the Company, and Indemnitee
shall be entitled to receive interim payments of Expenses pursuant to
Subsection 1(b) unless and until such defense may be finally adjudicated by
court order or judgment from which no further right of appeal exists or as
otherwise restricted pursuant to this Agreement. It is the parties’ intention
that if the Company contests Indemnitee’s right to indemnification, the question
of Indemnitee’s right to indemnification shall be for the court to decide, and
neither the failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel,
or
its stockholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including its Board of Directors, any committee
or
subgroup of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
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(f) If,
at
the time of the receipt of a notice of a Claim, 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 necessary or desirable 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.
5. Scope.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify the Indemnitee against any Claim 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 Certificate of
Incorporation, the Company’s Bylaws or by statute. In the event of any change,
after the date of this Agreement, in any applicable law, statute or rule which
expands the right of a Delaware corporation to indemnify a member of its board
of directors, an officer or other corporate agent, such changes shall be,
ipso
facto,
within
the purview of Indemnitee’s rights and Company’s obligations, under this
Agreement. 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, an officer, or other corporate agent, such changes, to
the
extent not otherwise required by applicable law to be applied to this Agreement,
shall have no effect on this Agreement or the parties’ rights and obligations
hereunder.
6. Partial
Indemnification.
If
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 in the investigation, defense,
appeal or settlement of any civil or criminal action or proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments, fines or penalties
to
which Indemnitee is entitled.
7. Public
Policy.
Both
the Company and Indemnitee acknowledge that in certain instances, Federal law
or
a court of competent jurisdiction may prohibit the Company from indemnifying
its
directors and officers under this Agreement or otherwise.
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8. Insurance.
(a) For
the
duration of Indemnitee’s service as a director or officer or other agent of the
Company, and thereafter for so long as Indemnifee shall be subject to any
pending or possible Claim, the Company shall use commercially reasonable efforts
(taking into account the scope and amount of coverage available relative to
the
cost thereof) to cause to be maintained in effect policies of liability
insurance providing coverage for directors and officers of the Company that
are
at least substantially comparable in scope and coverage to that provided by
the
Company’s current policies of directors’ and officers’ liability
insurance.
(b) The
Company shall use reasonable efforts to require and cause any successor (whether
direct or indirect by purchase, merger, consolidation, or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of
the
Company (the “Change in Control”), by written agreement, to use commercially
reasonable efforts to cause to be maintained in effect policies of liability
insurance providing coverage for directors and officers of the Company that
are
at least substantially comparable in scope and coverage to that provided by
the
Company’s policies of directors’ and officers’ liability insurance in effect
prior to the Change in Control for a period of six years following the Change
in
Control.
(c) If
at the
Company receives a notice of Claim the Company has liability insurance in effect
which may cover the Claim, the Company shall (i) give prompt notice of the
Claim
to the insurers in accordance with the procedures set forth in the respective
policies and (ii) take all necessary or desirable actions to cause such insurers
to pay , on behalf of the Indemnitee, all amounts payable as a result of the
Claim in accordance with the terms of the respective policies.
9. No
Duplication of Payment.
The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the extent Indemnitee
has
otherwise actually received payment (under any insurance policy, provision
of
the Company's Certificate of Incorporation, Bylaw (as now or hereafter in
effect) or otherwise) of the amounts otherwise indemnifiable
hereunder.
10. No
Restrictions.
The
rights and remedies of Indemnitee under this Agreement shall not be deemed
to
exclude or impair any other rights or remedies to which Indemnitee may be
entitled under the Certificate of Incorporation or Bylaws of the Company, or
under any other agreement, provision of law or otherwise, nor shall anything
contained herein restrict the right of the Company to indemnify Indemnitee
in
any proper case even though not specifically provided for in this Agreement,
nor
shall anything contained herein restrict Indemnitee’s right to contribution as
may be available under applicable law.
11. Termination.
All of
the Company’s obligations under this Agreement will continue as long as
Indemnitee is subject to any actual or possible matter which is the subject
of
this Agreement, notwithstanding Indemnitee’s termination of service as an
officer or director of the Company.
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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. Further
Assurances.
The
parties will do, execute and deliver, or will cause to be done, executed and
delivered, all such further acts, documents and things as may be reasonably
required for the purpose of giving effect to this Agreement and the transactions
contemplated hereby.
14. Acknowledgment.
The
Company expressly acknowledges that it has entered into this Agreement and
assumed the obligations imposed on the Company hereunder in order to induce
Indemnitee to serve or to continue to serve as an agent of the Company, and
acknowledges that Indemnitee is relying on this Agreement in serving or
continuing to serve in such capacity.
15. Period
of Limitations.
No
legal action shall be brought and no cause of action arising
out of or related to the parties’ respective rights and obligations under this
agreement
shall be
asserted by or on behalf of the Company or any affiliate of the Company against
Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal
representatives after the expiration of three (3) years from the date of accrual
of such cause of action or such longer period as may be required by state law
under the circumstances. Any claim or cause of action of the Company or its
Affiliate shall be extinguished and deemed released unless asserted by the
timely filing and notice of a legal action within such period; provided,
however, that if any shorter period of limitations is otherwise applicable
to
any such cause of action, the shorter period shall govern.
16. Construction
of Certain Phrases.
(a) “Company”:
For
purposes of this Agreement, references to the “Company” shall also include, in
addition to the resulting corporation in any consolidation or merger to which
the Company is a party, any constituent corporation (including any constituent
of a constituent) absorbed in consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that if 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, Indemnitee shall stand in the same position under
the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) Benefit
Plans:
References to “fines” contained in this Agreement shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and 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.
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17. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
18. 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.
19. Governing
Law; Binding Effect; Amendment.
(a) This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Delaware applicable to contracts entered into in Delaware.
(b) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct
or
indirect successor by purchase, merger, consolidation, or otherwise to all
or
substantially all of the business and/or assets of the Company), assigns,
spouses, heirs, and personal and legal representatives. The Company shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation, or otherwise) to all, substantially all, or a substantial part,
of the business and/or assets of the Company, by written agreement in form
and
substance satisfactory to Indemnitee, 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. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
pertaining to a Claim even though he may have ceased to serve in such capacity
at the time of any Claim.
(c) No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless in writing signed by both parties hereto.
20. No
Construction as Employment Agreement.
Nothing
contained in this Agreement shall be construed as giving Indemnitee any right
to
be retained in the employ of the Company or any of its subsidiaries or
affiliated entities.
21. Termination
of Prior Agreement.
The
parties hereby agree that upon execution of this Agreement by the Company and
the Indemnitee, any prior indemnification agreement between the parties shall
be
terminated and be of no further force and effect.
[The
remainder of this page is intentionally left
blank.]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first above
written.
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“COMPANY”
GENESIS
MICROCHIP INC.
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| By: | ||
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Xxxxx
Xxxxxx
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President
& Chief Executive Officer
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“INDEMNITEE”
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| Signature: _______________________________________ | ||
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Name:
____________________________________________
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| Address: __________________________________________ | ||
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__________________________________________
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