This Indemnification Agreement (“Agreement”) is made as of [insert date] by and between
Intevac, Inc., a Delaware corporation (the “Company”), and [insert name of indemnitee]
(“Indemnitee”).
WHEREAS, individuals are reluctant to serve as directors or officers of corporations or in
certain other capacities unless they are provided with adequate protection through insurance or
indemnification against the risks of claims and actions against them arising out of such service;
WHEREAS, Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and any insurance as adequate under the present circumstances, and
Indemnitee may not be willing to continue to serve in such capacities without additional
protection;
WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, it is
reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify,
and to advance expenses on behalf of, Indemnitee as permitted by applicable law; and
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Company’s certificate of incorporation and bylaws, and any resolutions adopted pursuant
thereto, and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement be
deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, the Company and Indemnitee do hereby agree as follows:
1. Definitions.
(a) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined voting power of the Company’s then
outstanding securities;
(ii) Change in Board Composition. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Company’s board of directors, and any new directors (other than a
director designated by a person who has entered into an agreement with the Company to effect a
transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the board of
directors or nomination for election by the Company’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority of the members of the Company’s
board of directors;
(iii) Corporate Transactions. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or consolidation and with the power to
elect at least a majority of the board of directors or other governing body of such surviving
entity;
(iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or substantially all
of the Company’s assets; and
(v) Other Events. Any other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended,
whether or not the Company is then subject to such reporting requirement.
(vi) Definitions with Respect to this Section 1(a).
For purposes of this Section 1(a), the following terms shall have the following meanings:
(1) “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended; provided, however, that “Person” shall exclude (i) the Company,
(ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
(2) “Beneficial Owner” shall have the meaning given to such term in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended; provided, however, that “Beneficial Owner” shall
exclude any Person otherwise becoming a Beneficial Owner by reason of (i) the stockholders of the
Company approving a merger of the Company with another entity or (ii) the Company’s board of
directors approving a sale of stock by the Company to such Person.
(b) “Corporate Status” describes the status of a person who is or was a director, trustee,
general partner, managing member, officer, employee, agent or fiduciary of the Company or any other
Enterprise.
(c) “DGCL” means the General Corporation Law of the State of Delaware.
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(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” shall mean the Company and any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a director, trustee, general partner,
managing member, officer, employee, agent or fiduciary.
(f) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in,
or otherwise participating in, a Proceeding. Expenses also shall include (i) Expenses incurred in
connection with any appeal resulting from any Proceeding, including without limitation the premium,
security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or
its equivalent, and (ii) for purposes of Section 12(c), Expenses incurred by Indemnitee in
connection with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.
(g) “Independent Counsel” means a law firm, or a partner or member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or other proceeding, whether brought in the right of the Company or otherwise and whether of a
civil, criminal, administrative or investigative nature, including any appeal therefrom and
including without limitation any such proceeding pending as of the date of this Agreement, in which
Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise
by reason of (i) the fact that Indemnitee is or was a director or officer of the Company, (ii) any
action taken by Indemnitee or on Indemnitee’s part while acting as a director or officer of the
Company, or (iii) the fact that he or she is or was serving at the request of the Company as a
director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the
Company or any other Enterprise, in each case whether or not serving in such capacity at the time
any liability or Expense is incurred for which indemnification or advancement of expenses can be
provided under this Agreement, except one initiated by Indemnitee to enforce his or her rights
under this Agreement.
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(i) Reference to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to any employee benefit
plan; 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; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to in this Agreement.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a
party to or a participant in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or
her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she 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 that his or her conduct was unlawful.
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be
liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any
court in which the Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or
such other court shall deem proper.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the
extent that Indemnitee is a party to or a participant in and is successful (on the merits or
otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, in defense of one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with (a) each successfully resolved claim, issue or matter and (b) any claim, issue or matter
related to any such
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successfully resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
5. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to
the fullest extent permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify
Indemnitee to the fullest extent permitted by applicable law if Indemnitee is a party to or is
threatened to be made a party to any Proceeding (including, if permissible, a Proceeding by or in
the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with
the Proceeding.
(b) For purposes of Section 6(a), the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include, but not be limited to:
(i) to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL; and
(ii) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not
be obligated under this Agreement to make any indemnity in connection with any Proceeding (or any
part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law, if
Indemnitee is held liable therefor (including pursuant to any settlement arrangements);
(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee from the sale of securities
of the Company, as required in each case under the Securities Exchange Act of 1934, as
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amended (including any such reimbursements that arise from an accounting restatement of the
Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or
the payment to the Company of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable
therefor (including pursuant to any settlement arrangements);
(d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers, employees, agents or other
indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant
part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law,
(iii) otherwise authorized in Section 12(c) or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
8. Advances of Expenses. The Company shall advance, to the extent not prohibited by
law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement
shall be made as soon as reasonably practicable, but in any event no later than twenty (20) days,
after the receipt by the Company of a written statement or statements requesting such advances from
time to time (which shall include invoices received by Indemnitee in connection with such Expenses
but, in the case of invoices in connection with legal services, any references to legal work
performed or to expenditure made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice). Advances shall be unsecured and interest
free and made without regard to Indemnitee’s ability to repay such Advances. Indemnitee hereby
undertakes to repay any advance to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company, which undertaking shall itself be sufficient without
the need for further evaluation of any credit aspects of the undertaking or with respect to such
advancement. This Section 8 shall not apply to any claim made by Indemnitee for which indemnity is
excluded pursuant to this Agreement.
9. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably
practicable following the receipt by Indemnitee of written notice thereof. The written notification
to the Company shall include a description of the nature of the Proceeding and the facts underlying
the Proceeding. The failure by Indemnitee to notify the Company hereunder will not relieve the
Company from any liability which it may have to Indemnitee hereunder or otherwise than under this
Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of
any rights under this Agreement, except to the extent that such failure or delay materially
prejudices the Company.
(b) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the
Company has director and officer liability insurance in effect, the Company shall give prompt
notice of the commencement of the 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
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cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.
(c) In the event the Company shall be obligated hereunder to make any indemnity in connection
with a Proceeding, the Company shall be entitled to assume the defense of such Proceeding with
counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election so to do. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees or expenses of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding. Notwithstanding the
Company’s assumption of the defense of any Proceeding, the Company shall be obligated to pay the
fees and expenses of Indemnitee counsel if (i) the employment of counsel by Indemnitee has been
previously authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there is
a conflict of interest between the Company and Indemnitee in the conduct of any such defense such
that Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative
and reasonably incurred in connection with Indemnitee’s role in the proceeding despite the
Company’s assumption of the defense, (iv) the Company is not financially or legally able to perform
its indemnification obligations or (v) the Company shall not have retained, or shall not continue
to retain, such counsel to defend such Proceeding. The Company shall have the right to conduct such
defense as it sees fit in its sole discretion, provided that the Company shall not settle any
Proceeding without Indemnitee’s prior written consent, which shall not be unreasonably withheld.
Regardless of any provision in this Agreement, Indemnitee shall have the right to employ
Indemnitee’s counsel in any Proceeding at Indemnitee’s personal expense.
(d) Indemnitee shall give the Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e) The Company shall not be liable to indemnify Indemnitee under this Agreement for any
settlement of any Proceeding without the Company’s prior written consent, which shall not be
unreasonably withheld.
10. Procedure upon Application for Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The
Company shall, as soon as reasonably practicable after receipt of such a request for
indemnification, advise the board of directors in writing that Indemnitee has requested
indemnification.
(b) Upon written request by Indemnitee for indemnification, a determination, if required by
applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case
(i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the
Company’s board of directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change
in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors,
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even though less than a quorum of the Company’s board of directors, (B) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested Directors, even though
less than a quorum of the Company’s board of directors, (C) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written
opinion to the Company’s board of directors, a copy of which shall be delivered to Indemnitee or
(D) if so directed by the Company’s board of directors, by the stockholders of the Company. If it
is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made as soon as reasonably practicable, but in any event no later than ten (10) days, after such
determination. Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any costs or expenses (including
attorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the Company (irrespective of
the determination as to Indemnitee’s entitlement to indemnification).
(c) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(b), the Independent Counsel shall be selected as
provided in this Section 10(c). The Independent Counsel shall be selected by the Company’s board
of directors, except in the case of a Change in Control, and the Company shall give written notice
to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a
Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee and
Indemnitee shall give written notice to the Company advising it of the identity of the Independent
Counsel so selected (unless Indemnitee shall request that such selection be made by the Company’s
board of directors, in which event the Company shall provide written notice to the Indemnitee of
the identity of the Independent Counsel). In either event, Indemnitee or the Company, as the case
may be, may, within ten (10) days after such written notice of selection shall have been given,
deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1
of this Agreement, and the objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected shall act as Independent
Counsel. If such written objection is so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If, within twenty (20) days after the
later of (i) submission by Indemnitee of a written request for indemnification pursuant to
Section 10(a) hereof and (ii) the final disposition of the Proceeding, no Independent Counsel shall
have been selected without objection, either the Company or Indemnitee may petition a court of
competent jurisdiction for resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court shall designate, and
the person with respect to whom all objections are so resolved or the person so appointed shall act
as Independent Counsel under Section 10(b) hereof. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 12(a) of this Agreement, Independent Counsel shall be
discharged and relieved
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of any further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(d) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel.
(e) If the Company believes that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee for the amounts claimed,
the Company may file an action in the Delaware Court of Chancery to obtain a declaratory judgment
that Indemnitee is not entitled under applicable law to receive indemnification or advancement from
the Company (a “Declaratory Action”). If the Delaware Court of Chancery issues an order or
judgment in a Declaratory Action that Indemnitee is not entitled under applicable law to receive
indemnification or advancement from the Company with respect to a Proceeding or any claim, issue or
matter therein, the Company shall have no further obligation under this Agreement, the Company’s
certificate of incorporation or bylaws or other applicable laws, statutes or rules to provide
indemnification or advances to Indemnitee with respect to such Proceeding, claim, issue or matter.
In a Declaratory Action, the burden of proof shall be on the Company to establish that Indemnitee
is not entitled to indemnification or advances.
11. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, to the
fullest extent permitted by law, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification in accordance with
Section 10(a) of this Agreement, and the Company shall, to the fullest extent not prohibited by
law, have the burden of proof to overcome that presumption in connection with the making by such
person, persons or entity of any determination contrary to that presumption. Neither (i) the
failure of the Company, its board of directors, any committee or subgroup of the board of
directors, Independent Counsel or stockholders to have made a determination that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor
(ii) an actual determination by the Company, its board of directors, any committee or subgroup of
the board of directors, Independent Counsel or stockholders that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(b) Subject to Section 12(d), if the person, persons or entity empowered or selected under
Section 10 of this Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within sixty (60) days after receipt by the Company of the request
therefor in accordance with this Agreement, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statements not materially misleading, in connection
with the request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith requires such additional
time for obtaining or
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evaluating documentation or information relating thereto; and provided, further, that the
foregoing provisions of this Section 11(b) shall not apply (i) if the determination of entitlement
to indemnification is to be made by the stockholders pursuant to Section 10(b) of this Agreement
and if (A) within fifteen (15) days after receipt by the Company of the request for such
determination the Board has resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) a special meeting of stockholders is called
within fifteen (15) days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so called and such
determination is made thereat, or (ii) if the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 10(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself create a presumption that
Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account
of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the
Enterprise or its board of directors or counsel selected by any committee of the board of directors
or (iv) information or records given or reports made to the Enterprise by an independent certified
public accountant, an appraiser, investment banker or other expert selected with reasonable care by
the Company or its board of directors or any committee of the board of directors. The provisions of
this Section 11(d) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(e) The knowledge and actions, or failure to act, of any other director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.
12. Remedies of Indemnitee.
(a) Subject to Section 12(d), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to
Section 10(b) of this Agreement within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification pursuant to this Agreement is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification,
or (v) in the event that the Company or any other person takes or threatens to take any action to
declare this Agreement void or unenforceable, or institutes any litigation or other action or
proceeding
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designed to deny, or to recover from, Indemnitee the benefits provided or intended to be
provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of his
or her entitlement to such indemnification or advancement of Expenses. Indemnitee shall commence
such proceeding seeking an adjudication within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 12(a); provided, however,
that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to
enforce his or her rights under Section 4 of this Agreement. The Company shall not oppose
Indemnitee’s right to seek any such adjudication in accordance with this Agreement.
(b) In the event that a determination shall have been made pursuant to Section 10(b) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination.
(c) To the fullest extent permitted by law, the Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in
any such court or before any such arbitrator that the Company is bound by all the provisions of
this Agreement. It is the intent of the Company that Indemnitee not be required to incur legal fees
or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement by litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Indemnitee hereunder. To the
extent permitted by law, the Company shall indemnify Indemnitee against any and all Expenses and,
if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later
than twenty (20) days, after receipt by the Company of a written request therefor) advance such
Expenses to Indemnitee that are incurred by Indemnitee in connection with any action brought by
Indemnitee for indemnification or advancement of Expenses from the Company under this Agreement or
under any directors’ and officers’ liability insurance policies maintained by the Company.
(d) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
13. Contribution. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any
claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the event(s) and
transaction(s) giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the
Company (and its other directors, officers, employees and agents) in connection with such event(s)
and transaction(s).
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14. Non-exclusivity. The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company’s certificate of
incorporation or bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement shall limit or restrict any right
of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in
his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a
change in Delaware law, whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Company’s certificate of
incorporation and bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the
restrictions expressly set forth herein. Except as expressly set forth herein, no right or remedy
herein conferred is intended to be exclusive of any other right or remedy, and every other right
and remedy shall be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other right or remedy.
15. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is
provided hereunder) if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
16. Insurance. To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, trustees, general partners, managing members,
officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall
be covered by such policy or policies to the same extent as the most favorably-insured persons
under such policy or policies in a comparable position. The Company shall, from time to time, make
a good faith determination as to 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
directors and officers 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. Notwithstanding the foregoing and without limitation, 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 Indemnitee is covered by
similar insurance maintained by a parent or subsidiary of the Company.
17. Subrogation. In the event of any payment under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
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18. Services to the Company. Indemnitee agrees to serve as a director or officer of
the Company or, at the request of the Company, as a director, trustee, general partner, member,
officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her resignation. Indemnitee may at any time
and for any reason resign from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an
employment contract between the Company (or any of its subsidiaries or any Enterprise) and
Indemnitee. Indemnitee specifically acknowledges that any employment with the Company (or any of
its subsidiaries or any Enterprise) is at will, and Indemnitee may be discharged at any time for
any reason, with or without cause, except as may be otherwise provided in any written employment
contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any
formal severance policies adopted by the Company’s board of directors or, with respect to service
as a director or officer of the Company, the Company’s certificate of incorporation or bylaws or
the DGCL.
19. Duration of Agreement. This Agreement shall continue until and terminate upon the
later of (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director
or officer of the Company or as a director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of any other Enterprise, as applicable; or (b) one (1) year after the
final termination of any Proceeding, including any appeal, then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto.
20. Successors. This Agreement shall be binding upon the Company and its successors
and assigns, including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business or assets of the Company, and shall inure to
the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators. The Company shall
require and cause any successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business 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.
21. Severability. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
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22. Enforcement. The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to
serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director or officer of the Company.
23. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the
Company’s certificate of incorporation and bylaws and applicable law, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
24. Modification and Waiver. No supplement, modification or amendment to this
Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement nor shall any waiver constitute a continuing waiver.
25. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by
the party to whom said notice or other communication shall have been directed, or (d) transmitted
by way of facsimile or e-mail (with acknowledgement of complete transmission).
(a) If to Indemnitee, at such address as indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
or to any other address as may have been furnished to Indemnitee by the
Company.
26. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Delaware Court of
Chancery, and not in any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court of
Chancery for purposes of any action or proceeding arising out of or in connection with this
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Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of
process in the State of Delaware, The Corporation Trust Company, Wilmington, Delaware as its agent
in the State of Delaware as such party’s agent for acceptance of legal process in connection with
any such action or proceeding against such party with the same legal force and validity as if
served upon such party personally within the State of Delaware, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court of Chancery, and (v) waive,
and agree not to plead or to make, any claim that any such action or proceeding brought in the
Delaware Court of Chancery has been brought in an improper or inconvenient forum.
27. 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
one and the same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this Agreement.
28. Captions. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
(signature page follows)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
