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Exhibit
10.1
GENESIS MICROCHIP INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (“
Agreement ”)
is made as of March 2, 2007, by and between Genesis Microchip Inc.,
a Delaware corporation (the “
Company ”),
and _________________________ (“
Indemnitee ”).
Recitals
A.
The
Company desires to attract and retain qualified directors,
officers, employees and other agents, and to provide them with
protection against liability and expenses incurred while
acting in that capacity;
B.
The
Certificate of Incorporation and Bylaws of the Company contain
provisions for indemnifying directors and officers of the
Company, and the Certificate of Incorporation, Bylaws and
Delaware law contemplate that separate contracts may be
entered into between the Company and its directors and
officers, employees and other agents with respect to their
indemnification by the Company, which contracts may provide
greater protection than is afforded by the Certificate of
Incorporation and Bylaws;
C.
The
Company understands that Indemnitee has reservations about
serving or continuing to serve the Company without adequate
protection against personal liability arising from such
service, and that it is also of critical importance to
Indemnitee that adequate provision be made for advancing costs
and expenses of legal defense; and
D.
The
Board of Directors of the Company has approved as being in the
best interests of the Company indemnity contracts
substantially in the form of this Agreement for directors and
officers of the Company and its subsidiaries and for certain
other employees and agents of the Company designated by the
Board of Directors.
NOW,
THEREFORE, in order to induce Indemnitee to serve or to
continue to serve as a director and/or officer of the Company,
and in consideration of Indemnitee’s service to the
Company, the parties agree as follows:
1.
Contractual Indemnity .
In addition to the indemnification provisions of the Certificate of
Incorporation and 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) in connection
with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal, including an
action by or in the right of the Company, to which Indemnitee
is, was or at any time becomes a party
or
witness or other participant, or is threatened to be or in
good faith believes will 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 other reasonable costs of
investigation and defense) (the “Expenses”), as
the same are incurred and in advance of the final disposition
of any such Claim or Claims (it being understood that amounts
actually paid in settlement of any such action or proceeding
shall not be treated as Expenses under this Agreement and such
amounts actually paid in settlement shall be treated as set
forth in Section 4(c) of this Agreement). The execution of
this agreement constitutes an undertaking by Indemnitee to
reimburse such amounts if it shall be ultimately determined
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
Certificate of Incorporation or the Bylaws of the Company or
under applicable law. The advances to be made hereunder shall
be paid by the Company to Indemnitee within twenty
(20) days following receipt by the Company of a written
request therefor from Indemnitee. Indemnitee’s
obligation to reimburse the Company for the Expenses so
advanced shall be unsecured and no interest shall be charged
thereon.
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.
2.
Limitations on Contractual Indemnity .
Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this
Agreement:
(a)
To
indemnify or advance Expenses to the Indemnitee
(i)
If
a court of competent jurisdiction, by final judgment or
decree, 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;
(ii)
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 or advancement
under this Agreement or any other statute or law, 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;
(iii)
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 directors’ and officers’ liability
insurance maintained by the Company; or
(iv)
if
the Indemnitee shall have entered a plea of guilty or nolo
contendere, or an equivalent plea acknowledging guilt with
respect to any Claim for which advancement of Expenses are
being sought;
or
(b)
to
indemnify the Indemnitee:
(i)
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;
(ii)
for
any acts or omissions or transactions from which a director
may not be relieved of liability under the Delaware General
Corporation Law; or
(iii)
on
account of any suit in which Indemnitee is adjudged to have
misused or misappropriated non-public information, or
otherwise misused Indemnitee’s status as an
“insider” of the Company, in connection with any
purchase or sale by Indemnitee of securities of the
Company.
3.
Continuation of Contractual Indemnity .
Subject to the termination provisions of Section 11, all
agreements and obligations of the Company 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.
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. 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. The omission to notify the Company will not
relieve the Company from any liability that it may have to
Indemnitee, except that the Company shall not be liable to
indemnify the Indemnitee under this Agreement with regard to
any judicial award if the Company was not given a reasonable
and timely opportunity as a result of Indemnitees’
failure to provide notice, at its expense, to participate in
the defense of such action, and the lack of such notice
materially prejudiced the Company’s ability to
participate in defense of such action. The Company’s
liability hereunder shall not be excused if participation in
the defense of the Claim by the Company was barred by this
Agreement.
(b)
Indemnitee
shall have the right to employ its own counsel in connection
with any such Claim and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the
expense of Indemnitee unless (i) the Company shall not
have assumed the defense of the Claim and employed counsel for
such defense, or (ii) the Indemnitee shall have
reasonably concluded that joint representation is
inappropriate under applicable standards of professional
conduct due to a material conflict of interest between
Indemnitee and the Company or the other joint clients of
employed counsel. In either of these events the reasonable
fees and expenses of such counsel to the Indemnitee shall be
borne by the Company. 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.
(c)
The
Company shall not be liable to in
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