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INDEMNIFICATION
AGREEMENT
between
____________
and
LSI
Corporation
INDEMNIFICATION
AGREEMENT
Table
of Contents
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1.
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INDEMNIFICATION
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1
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a.
Third Party Proceedings.
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1
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b.
Proceedings By or in the Right of the Company.
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2
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c.
Mandatory Payment of Expenses.
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2
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2.
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AGREEMENT
TO SERVE
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2
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3.
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EXPENSES;
INDEMNIFICATION PROCEDURE
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3
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a.
Advancement of Expenses.
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3
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b.
Notice/Cooperation by Indemnitee.
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3
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c.
Notice to Insurers.
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3
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d.
Selection of Counsel.
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4
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e.
Presumption and Burden of Proof.
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4
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4.
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ADDITIONAL
INDEMNIFICATION RIGHTS: NONEXCLUSIVITY
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4
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a.
Scope.
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4
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b.
Nonexclusivity.
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5
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5.
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MUTUAL
ACKNOWLEDGEMENT
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5
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6.
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OFFICER
AND DIRECTOR LIABILITY INSURANCE
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5
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7.
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SEVERABILITY
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6
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8.
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EXCEPTIONS
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6
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a.
Claims Initiated by Indemnitee.
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6
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b.
Lack of Good Faith.
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6
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c.
Insured Claims.
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6
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d.
SOX Forfeitures and Reimbursements.
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7
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e.
Claims Under Section 16(b).
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7
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9.
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CONSTRUCTION
OF CERTAIN PHRASES
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7
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a.
Company.
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7
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b.
Other Phrases.
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7
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10.
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COUNTERPARTS
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8
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11.
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SUCCESSORS
AND ASSIGNS
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8
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12.
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ATTORNEYS’
FEES
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8
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13.
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NOTICE
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8
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14.
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CONSENT
TO JURISDICTION
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8
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15.
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CHOICE
OF LAW
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9
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16.
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ENTIRE
AGREEMENT; MODIFICATION AND WAIVER
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9
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INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“Agreement”) is made as
of _________________, by and between LSI Corporation, a
Delaware corporation (the “Company”), and
__________ (“Indemnitee”).
WHEREAS , the Company and Indemnitee recognize the
increasing difficulty in obtaining directors’ and
officers’ liability insurance, the significant increases in
the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS , the Company and 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 , Indemnitee does not regard the current protection
available as adequate under the present circumstances, and
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 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 Indemnitee hereby agree as
follows:
1.
INDEMNIFICATION
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a.
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Third Party Proceedings.
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The
Company shall indemnify Indemnitee if Indemnitee is, or is
threatened to be made, a party to or a participant in any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by
reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Company, or any subsidiary
of the Company, or by reason of the fact that Indemnitee is or
was serving at the request of the Company as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such action, suit or proceeding
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. The
termination of any action, suit 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 Indemnitee did not act in good faith and in a manner
which 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 reasonable cause to believe
that Indemnitee’s conduct was unlawful.
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b.
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Proceedings By or in the Right of the Company.
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The
Company shall indemnify Indemnitee if Indemnitee is, or is
threatened to be made, a party to or a participant in any
threatened, pending or completed action or suit by or in the
right of the Company or any subsidiary of the Company to
procure a judgment in its favor, against expenses (including
attorneys’ fees) to the extent actually and reasonably
incurred by Indemnitee in connection with such action or suit
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, except that no indemnification shall
be made in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such
action or suit 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 indemnity for such expenses which the
Court of Chancery of the State of Delaware or such other court
shall deem proper.
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c.
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Mandatory Payment of Expenses.
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To
the extent that Indemnitee has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in Subsections (a) and (b) of this Section 1 or
the defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection therewith.
2.
AGREEMENT TO SERVE
In
consideration of the protection afforded by this Agreement, if
Indemnitee is a director of the Company he agrees to serve at
least for the balance of the current term as a director and
not to resign voluntarily during such period without the
written consent of a majority of the Board of
Directors. If Indemnitee is an officer of the
Company not serving under an employment contract, he agrees to
serve in such capacity at least for the balance of the current
fiscal year of the Company and not to resign voluntarily
during such period without the written consent of a majority
of the Board of Directors. Following the applicable
period set forth above Indemnitee agrees to continue to serve
in such capacity at the will of the Company (or under separate
agreement, if such agreement exists) so long as he is duly
appointed or elected and qualified in accordance with the
applicable provisions of the by-laws of the Company or any
subsidiary of the Company or until such time as he tenders his
resignation in writing. Nothing contained in this
Agreement is intended to create in Indemnitee any right to
continued employment.
3.
EXPENSES; INDEMNIFICATION PROCEDURE
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a.
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Advancement of Expenses.
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The
Company shall advance all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or
appeal of any civil or criminal action, suit or proceeding
referenced in Section 1(a) or (b) hereof (but not amounts
actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay
such amounts advanced only if, and to the extent that, it
shall ultimately be determined 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 therefor by Indemnitee
to the Company. Advances shall be unsecured and
interest free and made without regard to Indemnitee’s
ability to repay such advances.
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b.
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Notice/Cooperation by Indemnitee.
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Indemnitee
shall give the Company notice in writing as soon as
practicable of any claim made against Indemnitee for which
indemnification will or could be sought under this
Agreement. 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
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 failure or
delay by Indemnitee to notify the Company will not relieve the
Company of any liability which it may have to Indemnitee
hereunder or otherwise, except to the extent that such failure
or delay materially prejudices the Company. In
addition, Indemnitee shall give the Company such information
and cooperation as it may reasonably require and as shall be
within Indemnitee’s power.
If,
at the time of the receipt of a notice of a claim pursuant to
Section 3(b) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt
notice of the commencement of such 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 cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such
policies.
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