EXHIBIT 10.33
ASYST TECHNOLOGIES, INC.
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered effective as of
the ____ day of _______________, 200__ by and between Asyst Technologies, Inc.,
a California corporation (the "Corporation"), and _________________,
("Indemnitee").
RECITALS
WHEREAS, the shareholders of the Corporation have adopted provisions in
the Articles of Incorporation (the "Articles") and the Bylaws (the "Bylaws") of
the Corporation providing for the indemnification of the directors, executive
officers, officers, employees and other agents of the Corporation, including
persons serving at the request of the Corporation in such capacities with other
corporations or enterprises, as authorized by the California Corporations Code,
as amended;
WHEREAS, the Articles, the Bylaws and the California Corporations Code, by
their non-exclusive nature, permit contracts between the Corporation and its
directors, executive officers, officers, employees and other agents with respect
to indemnification of such persons; and
WHEREAS, Indemnitee currently performs a valuable service to the
Corporation as ________________ of the Corporation and the Corporation wishes to
provide the protections and benefits hereinafter identified in conjunction with
Indemnitee's continued service to the Corporation;
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. SERVICES TO THE CORPORATION. Indemnitee will continue to serve, at
the will of the Corporation or under separate contract, if any such contract
exists, as a director, executive officer, officer, executive or other fiduciary
of an affiliate of the Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of Indemnitee's ability so long as
Indemnitee is duly appointed or elected and qualified in accordance with the
provisions of the Bylaws or other applicable charter documents of the
Corporation or such affiliate; provided, however, that Indemnitee may at any
time and for any reason resign from such position (subject to any contractual
obligation that Indemnitee may have assumed apart from this Agreement) and that
the Corporation or any affiliate shall have no obligation under this Agreement
to continue Indemnitee's employment or service in any such position (or at all).
2. INDEMNITY. Subject to a determination pursuant to Section 8 hereof,
and except and to the extent as specifically excluded in Section 3 hereof, the
Corporation hereby agrees to defend, hold harmless and indemnify Indemnitee:
a. against any and all expenses (including attorneys' fees),
witness fees, damages, judgments, fines and amounts paid in settlement, and any
other amounts that Indemnitee becomes legally obligated to pay because of any
claim or claims made against Indemnitee in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative, regulatory or investigative (including an action,
suit or proceeding by or in the right of the Corporation) to which Indemnitee
is, was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that Indemnitee is, was or at any time becomes a director,
executive officer, officer, employee or other agent of the Corporation, or is or
was serving or at any time serves at the request of the Corporation as a
director, executive officer, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise; and
b. otherwise to the fullest extent not prohibited by the
Articles, the Bylaws, the Code or any other law, statute or administrative or
regulatory rule then applicable to the Corporation.
3. LIMITATIONS ON INDEMNITY. The Corporation will not defend, hold
harmless or indemnify Indemnitee, and has no obligation, duty or liability
whatsoever to Indemnitee, hereunder or otherwise, with respect and to the extent
that any claim or claims made in connection with the matters set forth in
subsections (a) through (l) (including, but not limited to, whether the
Corporation has provided Indemnitee notice of such matters or whether the
Corporation has suspended or terminated Indemnitee's employment on the basis of
any such matters).
a. on account of any claim against Indemnitee for an accounting
of profits made from the purchase or sale by Indemnitee of securities of the
Corporation, pursuant to 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;
b. on account of Indemnitee's conduct from which Indemnitee
derived an improper personal benefit or gain;
c. on account of Indemnitee's conduct contrary to the best
interests of the Corporation or its shareholders or that involved the absence of
good faith on the part of Indemnitee;
d. on account of Indemnitee's conduct that constituted
intentional misconduct or a knowing and culpable violation of law;
e. on account of Indemnitee's conduct that showed a reckless
disregard for the Indemnitee's duty to the Corporation or its shareholders in
circumstances in which Indemnitee was aware, or should reasonably have been
aware, in the ordinary course of performing Indemnitee's duties, of a risk of
serious or intended harm to the Corporation or its shareholders;
f. on account of Indemnitee's conduct that constituted a pattern
of inattention that amounted to an abdication of the Indemnitee's duty to the
Corporation or its shareholders;
g. on account of Indemnitee's conduct which constituted a
violation of the Indemnitee's duties under Sections 310 or 316 of the California
Corporations Code;
h. for which payment is actually made to Indemnitee under a valid
and collectible insurance policy or under a valid and enforceable indemnity
clause, bylaw or agreement, except in respect of any excess beyond payment under
such insurance, clause, bylaw or agreement;
i. if indemnification is not lawful under law, statute or
administrative rule or governmental regulation or order applicable to the
Corporation, including the California Corporations Code, as amended
(collectively, the "Code") (and, in this respect, both the Corporation and
Indemnitee have been here 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);
j. in connection with any proceeding (or part thereof) initiated
by Indemnitee against, or any proceeding between Indemnitee and, the Corporation
or its directors, executive officers, officers, employees or other agents,
unless (i) such indemnification is expressly required to be made by law, (ii)
such indemnification was authorized by the Board of Directors of the
Corporation, or (iii) such indemnification is provided by the Corporation, in
its sole discretion, pursuant to the powers vested in the Corporation under the
Code;
k. with respect to any claim by or in the right of the
Corporation:
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i. if the Indemnitee is adjudged to be liable to the
Corporation in performance of the Indemnitee's duty to the
Corporation and its shareholders, unless and only to the extent that
the court in which such claim is or was pending shall determine upon
application that, in view of all of the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for
expenses, and then only to the extent and in the event that the
court shall determine;
ii. for expenses incurred in defending a pending claim which
is settled or otherwise disposed of without court approval; or
iii. for amounts paid in settling or otherwise disposing of a
pending claim without court approval; and
l. to the extent, but only to the extent, that indemnification
with respect to such claim (i) would be inconsistent with the Articles or
Bylaws, or a resolution of the shareholders or agreement of the Corporation
prohibiting or otherwise limiting such indemnification and in effect at the time
of the accrual of the action or (ii) would be inconsistent with any condition
expressly imposed by a court or administrative or regulatory authority or agency
having competent jurisdiction over the Corporation or a relevant aspect of the
corporations operations in approving a settlement, unless Indemnitee has been
successful on the merits or unless the indemnification has been approved by the
shareholders of the Corporation in accordance with Section 153 of the California
Corporations Code (with the shares of the Indemnitee not being entitled to vote
thereon).
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, executive officer, officer, employee, or other agent of the
corporation (or is serving or had served at the request of the Corporation as a
director, executive officer, officer, employee, or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) and shall continue thereafter so long as Indemnitee shall be subject
to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative or
investigative, by reason of the fact that Indemnitee had served in the capacity
referred to herein.
5. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days
after receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding asserting an indemnified matter for which Indemnitee seeks the
benefits or protections provided under this Agreement, Indemnitee will, if a
claim under this Agreement in respect thereof is to be made against the
Corporation, notify the Corporation of the commencement thereof. Failure to
provide the Corporation with reasonably prompt and timely notice will relieve it
from any obligation or liability whatsoever which the Corporation may have to
Indemnitee under this Agreement. With respect to any such action, suit or
proceeding as to which Indemnitee 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, the Corporation may, at
its option and jointly with any other indemnifying party similarly notified and
electing to assume such defense, assume the defense thereof, with counsel chosen
by the Corporation but reasonably satisfactory to Indemnitee. After notice from
the Corporation to Indemnitee of its election to assume the defense thereof, the
Corporation will not be liable to Indemnitee under this Agreement for any legal
or other expenses subsequently incurred by Indemnitee in connection with the
defense thereof except for reasonable costs of investigation or otherwise, as
provided below. Indemnitee shall have the right to employ separate counsel in
such action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense
thereof shall be at the sole expense and liability of Indemnitee, without right
or recourse against the Corporation, unless and to the extent: (i) the
employment of counsel by Indemnitee has been authorized in writing by the
Corporation or (ii) 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
reasonably and actually incurred of Indemnitee's separate counsel shall be at
the expense of the Corporation; and
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c. the Corporation shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action, suit or
proceeding claim effected without its written consent. The Corporation shall be
permitted to settle any action, suit or proceeding with respect to an
indemnified matter, except that it shall not settle any action, suit or
proceeding in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent, which may be given or withheld
in Indemnitee's sole discretion.
6. EXPENSES. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all
reasonable expenses actually incurred by Indemnitee in connection with such
proceeding upon receipt of an undertaking by or on behalf of Indemnitee to repay
said amounts if it shall be determined ultimately that Indemnitee is not
entitled to be indemnified under the provisions of this Agreement, the Bylaws,
the Articles, the Code or otherwise. Notwithstanding the foregoing, unless
otherwise determined pursuant to Section 7, no advance shall be made by the
Corporation if a determination is reasonably and promptly made by the Board of
Directors by a majority vote of a quorum comprising the then-serving directors
who are not parties to the proceeding (or, if no such quorum exists, by
independent legal counsel mutually acceptable to both the Corporation and
Indemnitee in a written opinion) that the facts known to the decision-making
party at the time such determination is made that such person acted in bad faith
or in a manner that such person did not believe to be in the best interests of
the Corporation and its shareholders, or that the claim is not an indemnified
matter hereunder.
7. DETERMINATION BY THE CORPORATION. To the extent required by the
Code, promptly after receipt of a request for indemnification hereunder made by
Indemnitee (and in any event within 90 days from such request), the Corporation
shall make a reasonable, good faith determination as to whether indemnification
of Indemnitee is proper under the Code by means of:
a. a majority vote of a quorum comprising the then-serving
directors who are not parties to such proceeding;
b. if such quorum is not obtainable, by independent legal counsel
in a written opinion; or
c. approval or ratification by the affirmative vote of a majority
of the shares of the Corporation represented and voting at a duly held meeting
at which a quorum is present (which shares voting affirmatively also constitute
at least a majority of the required quorum) or by written consent of a majority
of the outstanding shares entitled to vote; where in each case the shares owned
by the person to be indemnified shall not be considered entitled to vote
thereon.
Such determination shall be reasonably made in good faith by the decision-making
party based upon the facts known to the decision-making party at the time such
determination is made and the reasonable understanding of the decision-making
party of the scope and limits of this Agreement and the respective rights and
obligations of the Corporation and Indemnitee hereunder.
8. ENFORCEMENT BY ARBITRATION ONLY. Any right to indemnification or
advances granted by this Agreement to Indemnitee, and any other dispute between
Indemnitee and the Corporation arising from or relating to any right or
obligation hereunder, shall be resolved exclusively by binding non-appealable
arbitration. The terms and conditions of the Agreement to Arbitrate Disputes and
Claims shall govern such arbitration (in the event entered between the parties,
and as amended from time to time), be binding on the Corporation and Indemnitee
and shall be deemed incorporated herein by reference as a material part of this
Agreement. Neither the Corporation nor Indemnitee shall be liable to, or
entitled to recover from, the other, for any claim, cause or action, suit or
proceeding relating to any right or obligation hereunder, any incidental,
special, consequential or exemplary damages of any kind, including punitive
damages. The Corporation shall be entitled to raise by pleading as an
affirmative defense to any action for which a claim for indemnification is made
hereunder that Indemnitee is not entitled to indemnification. Neither the
failure of the Corporation (including its Board of Directors, its shareholders
or independent legal counsel) to have made a determination prior to the
commencement of such enforcement action that indemnification of Indemnitee is
proper in the circumstances, nor an actual determination by the Corporation
(including its Board of Directors, its shareholders or independent legal
counsel) that such indemnification is improper shall be a defense to
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the action, be admissible as evidence of an intention or expectation of
indemnity hereunder, or create a presumption that Indemnitee is or is not
entitled to indemnification under this Agreement or otherwise.
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 Indemnitee, 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 Indemnitee by
this Agreement shall not be exclusive of any other right which Indemnitee may
have or hereafter acquired under any statute, provision of the Code or of the
Articles or Bylaws, agreement, vote of shareholders or directors, or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding office.
11. SURVIVAL OF RIGHTS.
a. The rights conferred on Indemnitee by this Agreement shall
continue after Indemnitee has ceased to be a director, executive officer,
officer, employee or other agent of the Corporation or to serve at the request
of the Corporation as a director, executive officer, officer, employee or other
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and shall inure to the benefit of Indemnitee's
heirs, executors and administrators.
b. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
12. SEPARABILITY. 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 for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof (unless such invalidity or unenforceability shall render
ineffective such other provision). Furthermore, if this Agreement shall be
invalidated in its entirety on any ground, then the Corporation shall
nevertheless indemnify Indemnitee to the fullest extent provided by the
Articles, the Bylaws, the Code or any other applicable law.
13. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California as if a contract entered
into in California, between California residents and to be performed entirely
within California.
14. AMENDMENT AND TERMINATION. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
15. IDENTICAL 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 but one and the same
Agreement.
16. HEADINGS. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
17. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication was
directed or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage
prepaid:
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a. if to Indemnitee, at the address indicated below Indemnitee's
signature hereunder (or such last address provided by Indemnitee to the
Corporation).
b. if to the Corporation, to
Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
General Counsel
or to such other address as may have been later furnished to Indemnitee by the
Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
ASYST TECHNOLOGIES, INC.
By: ________________________________
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
Chairman of the Board of Directors
INDEMNITEE
_________________________________
Address:
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