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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (this “Agreement”), is made
and entered into this day of
,
, between BROADCOM
CORPORATION, a California corporation (the
“Corporation”), and the person listed on the signature
page hereto as INDEMNITEE (“Indemnitee”).
WHEREAS,
Indemnitee, as a director, officer, employee and/or agent of the
Corporation, performs a valuable service in such capacity for the
Corporation; and
WHEREAS,
the Articles of Incorporation and Bylaws of the Corporation
authorize and permit contracts between the Corporation and a
director, officer, employee and/or agent of the Corporation with
respect to indemnification of such individuals.
NOW,
THEREFORE, in consideration of Indemnitee’s service as a
director, officer, employee and/or agent of the Corporation, the
parties hereto agree as follows:
1.
Indemnity of Indemnitee . The Corporation hereby agrees to
hold harmless and indemnify Indemnitee to the fullest extent
authorized or permitted by the provisions of the California General
Corporation Law, as amended (the “Code”), as it may be
amended from time to time.
2.
Additional Indemnity . Subject only to the limitations set
forth in Section 3 hereof, the Corporation hereby further
agrees to hold harmless and indemnify Indemnitee:
a. against any and all expenses (including attorneys’
fees, witness, expert and consultant fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
Indemnitee 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
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 is, was, or at any time becomes, a director,
officer, employee or agent of the Corporation, or is or was
serving, or at any time serves, at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise; and
b. to the fullest extent not prohibited by law where
indemnification is to be provided by reason of the fact that
Indemnitee is, was, or at any time becomes, a director, officer,
employee or agent of the Corporation, or is or was serving, or at
any time serves, at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other
enterprise.
3.
Limitations on Additional Indemnity .
a. Without limiting the indemnification provided for under
Section 1 hereof, the Corporation shall not be required to pay
any indemnity pursuant to Section 2 hereof:
(i) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which
Indemnitee (a) is indemnified pursuant to Section 1
hereof or (b) has been reimbursed pursuant to any Directors
and Officers Liability Insurance (“D & O
Insurance”) purchased and maintained by the Corporation;
(ii) in respect to remuneration paid to Indemnitee if it shall
be determined by a final adjudication (from which there is no right
of appeal) that such remuneration was in violation of law;
(iii) on account of Indemnitee’s acts or omissions if it
shall be determined by a final adjudication (from which there is no
right of appeal) that such acts or omissions involve intentional
misconduct or a knowing and culpable violation of law;
(iv) on account of any action, claim or proceeding (other than
a proceeding referred to in Section 8 hereof) initiated by
Indemnitee unless such action, claim or proceeding was authorized
in the specific case by action of the Board of Directors;
(v) on account of Indemnitee’s conduct if it shall be
determined by a final adjudication (from which there is no right of
appeal) that such conduct constituted the willful misappropriation
of corporate assets by Indemnitee, disclosure of confidential
information in willful and deliberate breach in bad faith of
Indemnitee’s fiduciary or contractual obligations to the
Corporation, or any other willful and deliberate breach in bad
faith of Indemnitee’s duty to the Corporation or its
shareholders; or
(vi) if a final adjudication (from which there is no right of
appeal) by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful (and, in this
respect, both the Corporation and Indemnitee have been 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).
b. In addition to those limitations set forth above in
paragraph (a) of this Section 3, no indemnity pursuant to
Section 2 hereof in an action by or in the right of the
Corporation shall be paid by the Corporation for any of the
following:
(i) on account of acts or omissions that Indemnitee believes
to be contrary to the best interests of the Corporation or its
shareholders or that involve the absence of good faith on the part
of Indemnitee;
(ii) with respect to any transaction from which Indemnitee
derived an improper personal benefit;
(iii) on account of acts or omissions that show a reckless
disregard for Indemnitee’s duty to the Corporation or its
shareholders in circumstances in which Indemnitee was aware, or
should have been aware, in the ordinary course of performing such
Indemnitee’s duties, of a risk of serious injury to the
Corporation or its shareholders;
(iv) on account of acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of
Indemnitee’s duty to the corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the Code,
“Transactions Between Corporations and Directors or
Corporations Having Interrelated Directors;”
(vi) to the extent prohibited by Section 316 of the Code,
“Directors’ Liability for Distributions, Loans and
Guarantees ” (for prohibited distributions, loans and
guarantees);
(vii) in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Corporation
in the performance of Indemnitee’s duty to the Corporation
and its shareholders, unless and only to the extent that the court
in which such proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall
determine;
(viii) of amounts paid in settling or otherwise disposing of a
pending action without court approval; or
(ix) of expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval.
4.
Contribution . If the indemnification provided in
Sections 1 and 2 hereof is unavailable by reason of a court
decision described in subsection 3(a)(vi) hereof based on grounds
other than any of those set forth in subsections 3(a)(ii) through
(v) hereof or in subsections 3(b)(i) through (ix) hereof,
then in respect of any thre
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