Exhibit 10.8
AMENDMENT TO INDEMNIFICATION AGREEMENT
THIS AMENDMENT TO INDEMNIFICATION AGREEMENT (the "Amendment") is dated
as of January 13, 1997, by and between TENCOR INSTRUMENTS, a California
corporation (the "Company"), and XXXXXX X. XXXXXXX (the "Indemnitee").
WHEREAS, the Company and the Indemnitee have previously entered into an
Indemnification Agreement (the "Agreement"); and
WHEREAS, the Company and the Indemnitee desire to amend and supplement
the Agreement, all on the terms and conditions provided herein.
NOW, THEREFORE, the Company and the indemnitee hereby agree as follows:
1. SUBSECTION 2(a) - ADVANCES OF EXPENSES. The following shall be
added at the end of Subsection 2(a) of the Agreement:
Any dispute concerning the advancement of expenses shall be
resolved by arbitration before an arbitrator selected by
Indemnitee and approved by the Company. If the parties cannot
agree on a single arbitrator, then the claim shall be heard by a
panel of three arbitrators, with one selected by Indemnitee, one
selected by the Company and one selected jointly by the
foregoing two arbitrators. Each of the arbitrators shall be a
litigation or corporate attorney with experience in the field of
officer and director indemnification. The arbitrators shall be
selected within fifteen (15) days after demand for arbitration
and shall render a decision within forty-five (45) days after
selection, unless good cause is shown for requiring a longer
decision period. The Company shall act in utmost good faith to
provide timely information to the arbitrators and insure
Indemnitee a full opportunity to defend against the Company's
claim that Indemnitee is not entitled to an advance of expenses.
The Company shall indemnify Indemnity against all expenses
incurred by Indemnitee under the dispute resolutions proceedings
set forth in this Subsection 2(a), unless a court of competent
jurisdiction finds that each of the claims and/or defenses by
indemnitee in the action or proceeding for which an advance is
sought was frivolous or made in bad faith.
2. SUBSECTION 2(c) - PROCEDURE. The third sentence of Subsection 2(c)
of the agreement shall be amended in its entirety to read as
follows:
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 or proceeding in advance of its final
disposition) 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 it
shall be presumed that Indemnitee has met any applicable
standard of conduct required for indemnification, unless the
Company has affirmatively shown that Indemnitee did not meet
that standard, and Indemnitee shall be entitled to receive
interim payments of expenses pursuant to Subsection 2(a), unless
and until such defense may be finally adjudicated by court order
or judgment from which no further right of appeal exists.
3. SUBSECTION 2(d) - NOTICE TO INSURERS. The following shall be
added at the end of Subsection 2(d) of the Agreement:
The Company shall indemnify Indemnitee against any reasonable
direct or indirect costs (including, without limitation,
attorneys' fees and disbursements) incurred by Indemnitee in
connection with any successful action brought by Indemnitee for
recovery under any insurance policies referred to in this
Subsection 2(d) and shall advance to Indemnitee the costs of
such action in the manner provided in Subsection 2(a) hereof.
4. NO FURTHER AMENDMENT. Except as specifically provided herein, the
Agreement shall not be amended and shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
COMPANY:
TENCOR INSTRUMENTS
By: _______________________________
Its:
INDEMNITEE:
