Amended & Restated
ASYST TECHNOLOGIES, INC.
INDEMNITY AGREEMENT
This Indemnity
Agreement (“Agreement”) is made and entered effective
as of the December 31, 2008, by and between Asyst
Technologies, Inc., a California corporation (the
“Corporation”), and [___]
(“Indemnitee”).
Whereas , it is
essential to the Corporation to retain and attract as directors and
officers the most capable persons available;
Whereas
, Indemnitee is a
director and/or officer of the Corporation;
Whereas
, both the
Corporation and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against
directors and officers of corporations;
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, agents and other
affiliates with respect to indemnification of such persons;
and
Whereas
, in recognition of
Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the
aforesaid Articles and Bylaws, (ii) specific contractual assurance
that the protection promised by the Bylaws will be available to
Indemnitee (regardless of, among other things, any amendment to or
revocation of the Bylaws or any change in the composition of the
Corporation Board of Directors or acquisition transaction relating
to the Corporation), and (iii) an inducement to continue to
provide effective services to the Corporation as a director and/or
officer, the Corporation wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted under
California law and as set forth in this Agreement, and, to the
extent insurance is maintained, to provide for the continued
coverage of Indemnitee under the Corporation’s
directors’ and officers’ liability insurance
policies.
Now,
Therefore , the parties
hereto agree as follows:
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, employee, agent or other fiduciary of the Corporation or
an affiliate thereof (including any employee benefit plan of the
Corporation) faithfully and to the best of Indemnitee’s
ability so long as Indemnitee is duly appointed, elected or
employed 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 office, employment, agency, service or
affiliation in any such position (or at all).
Asyst D&O
Indemnification Agreement
2.
Indemnity.
Subject to a determination pursuant to Section 7 hereof, and
except and to the extent as specifically excluded in Section 3
hereof, the Corporation hereby agrees fully 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 (“Expenses”) 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 (x) is, was or at any time
becomes a director, executive officer, officer, executive,
employee, agent or other fiduciary of the Corporation or an
affiliate thereof (including any employee benefit plan of the
Corporation), or (y) is or was serving or at any time served
or serves at the request of the Corporation as a director,
executive officer, officer, executive, employee, agent or other
fiduciary of the Corporation or an affiliate thereof (including any
employee benefit plan of the Corporation), of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise (“Indemnifiable Event”); 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 to and to the extent of any
claim or claims made in connection with the matters set forth in
subsections (a) through (k) (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;
Asyst D&O
Indemnification Agreement
2
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.
with respect to any claim by or in the right of the
Corporation:
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
k.
to the extent, but only to the extent, that indemnification with
respect to such claim (x) 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
(y) 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 Corporation’s 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).
Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in
connection with any proceeding 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 by law
to be provided by the Corporation, (ii) such indemnification
was authorized by the Board of Directors of the Corporation,
(iii) the Corporation has joined in or the Board has
authorized the initiation of such proceeding (iv) such
indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under
the Code, or (v) the proceeding is one to enforce
indemnification rights as provided in Section 5,
below.
4.
Continuation of
Indemnity. All agreements, obligations and liabilities
of the Corporation contained herein shall continue during the
period Indemnitee is a director, executive officer, officer,
executive, employee, agent or other fiduciary of the Corporation or
an affiliate thereof (including any employee benefit plan of the
Corporation) (or is serving or had served at the request of the
Corporation as a director, executive officer, officer, executive,
employee, agent or other fiduciary 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 (180) days after
receipt by Indemnitee of notice of the commencement of any
Indemnifiable Event asserting an indemnified matter for which
Indemnitee seeks the benefits or protections provided under this
Agreement, Indemnitee will, if a claim for indemnification under
this Agreement in respect thereof is to be made against the
Corporation, provide written notice to the Corporation of the
commencement thereof in reasonably sufficient detail to demonstrate
the facts and circumstances establishing an
Asyst D&O
Indemnification Agreement
3
Indemnifiable
Event. 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. Within sixty (60) days of receipt of any such
timely notice, the Corporation will provide notice to Indemnitee in
writing to indicate whether and to what extent it will provide
indemnification under this Agreement. With respect to any such
Indemnifiable Event 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 written 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 s
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