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Exhibit
10.34
AMIS HOLDINGS,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (the “ Agreement ”) is made as of by
and between AMIS Holdings, Inc., a Delaware corporation (the
“ Company ”), and
(the “ Indemnitee ”).
WHEREAS, the Company and the
Indemnitee recognize the difficulty in obtaining directors’
and officers’ liability insurance, the cost of such insurance
and the limited scope of coverage of such insurance;
WHEREAS, the Company and the
Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting officers and directors to
expensive litigation risks at the same time as the availability and
coverage of liability insurance has been severely
limited;
WHEREAS, the Indemnitee does
not regard the current protection available as adequate under the
present circumstances, and the Indemnitee and other officers and
directors of the Company may not be willing to continue to serve as
officers and directors without additional protection;
and
WHEREAS, the Company desires
to attract and retain the services of highly qualified individuals,
such as the Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to
provide them with the maximum protection permitted by
law.
NOW, THEREFORE, the Company
and the Indemnitee hereby agree as follows:
1. Contractual Indemnity. In
addition to any indemnification provisions of the Amended and
Restated Certificate of Incorporation and Amended and Restated
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) if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful, in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, including
an action by or in the right of the Company, 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, 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 expenses
and other reasonable costs of investigation and defense), as the
same are incurred and in advance of a final judicial determination
(as to which all rights of appeal therefrom have been exhausted or
lapsed) (the “Final Judicial Determination”) of any
such Claim or Claims, upon receipt of a written undertaking by or
on behalf of Indemnitee (which shall be unsecured and shall not
bear interest) to reimburse such amounts if a Final Judicial
Determination determines 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 Amended and Restated Certificate of Incorporation or the
Amended and Restated Bylaws of the Company.
(c) 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.
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2. Limitations on Contractual
Indemnity. Indemnitee shall not be entitled to indemnification
or advancement of expenses under Section 1:
(a) if a court of competent
jurisdiction, by a Final Judicial Determination, 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;
(b) 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;
(c) for any acts or omissions
or transactions from which Indemnitee may not be relieved of
liability under the Delaware General Corporation Law; or
(d) 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 under this Agreement or any statute, law
or other agreement, 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; or
(e) 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 liability insurance maintained
by the Company;
(f) for any expenses incurred
by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that the material assertions made
by the Indemnitee in such proceeding were not made in good faith or
were frivolous.
Notwithstanding any
limitations set forth in this Section 2 regarding the
Company’s obligation to provide indemnification, Indemnitee
shall be entitled under Section 4 to receive expense advances
hereunder with respect to any such Claim unless and until a court
having jurisdiction over the Claim shall have made a Final Judicial
Determination that Indemnitee has engaged in acts, omissions or
transactions for which Indemnitee is prohibited from receiving
indemnification under this Section 2.
3. Continuation of Contractual
Indemnity. Subject to the termination provisions of
Section 12, all agreements and obligations of the
Company
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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. Expenses; Indemnification
Procedure. The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding
referenced in Section 1 hereof (but not amounts actually paid
in settlement of any such action or proceeding). Indemnitee hereby
undertakes to repay such amounts advanced if, and to the extent
that, a Final Judicial Determination determines that Indemnitee is
not entitled to be indemnified by the Company as authorized hereby.
The advances to be made hereunder shall be paid by the Company to
Indemnitee within twenty (20) days following delivery of a
written request therefore by Indemnitee to the Company.
5. 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 provided however, that failure to provide such notice in
accordance with this Section 2(a) shall not affect
Indemnitee’s rights to receive any expenses or expense
advances hereunder unless and except to the extent that the Company
did not otherwise learn of such Claim and such failure of
Indemnitee to provide such notice results in the forfeiture by the
Company of substantial rights and defenses. 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. If the Company does not assume
the defense of a Claim or the Indemnitee reasonably determines that
there may be a conflict between the positions of the Company in
conducting the defense or a Claim, the counsel to Indemnitee shall
be entitled to conduct the defense as reasonably determined by such
counsel to be necessary or desirable to protect the interests of
the Indemnitee and the Company shall not have the right to assume
the defense of such Claim and the reasonable fees and expenses of
such counsel to the Indemnitee shall be borne by the Company upon
delivery to the Company of the undertaking referred to in
subparagraph (b) of Section 1. 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,
unless
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Indemnitee reasonably determines that
representation of Indemnitee and other agents of the Company by the
same f
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