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Exhibit 10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT ("Agreement") is made on
,
20 , between MICROSEMI CORPORATION, a
Delaware corporation (the "Company"), and
("Indemnitee"), an officer and/or member of the Board of Directors
of the Company.
WHEREAS, Indemnitee has been selected to serve or is currently
serving as a director or officer of the Company and in such
capacity is expected to render or has rendered valuable services to
the Company;
WHEREAS, the Company has investigated the availability and
sufficiency of liability insurance and Delaware statutory
indemnification provisions to provide its directors and officers
with adequate protection against various legal risks and potential
liabilities to which directors and officers are subject due to
their position with the Company and has concluded that insurance
and statutory provisions may provide inadequate and unacceptable
protection to certain individuals requested to serve as its
directors and officers; and
WHEREAS, in recognition of past services and in order to induce
and encourage highly experienced and capable persons such as
Indemnitee to serve as directors or officers of the Company, the
Board of Directors has determined, after due consideration and
investigation of the terms and provisions of this Agreement and the
various other options available to the Company and Indemnitee in
lieu of this Agreement, that this Agreement is not only reasonable
and prudent, but necessary to promote and ensure the best interests
of the Company and its stockholders.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1.
Definitions . As used in this Agreement:
(a)
A "Change in Control" shall be deemed to have occurred if
(i) any "person" (as that term is used in Sections
13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of shares of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the total
voting power represented by the Company’s then outstanding
voting securities, or (ii) during any period of two
consecutive years, individuals ("Continuing Directors") who at the
beginning of the two year period constitute the Board of Directors
of the Company or whose election by the Board of Directors or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of
the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority of the Board of Directors, or (iii) the stockholders
of the Company approve a merger or consolidation of the Company
with any other
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company, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately
prior to such a merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least eighty percent (80%)
of the total voting power represented by the voting securities of
the Company or the surviving entity outstanding immediately after
the merger or consolidation, or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially
all the Company’s assets.
(b)
"Corporate Status" describes the status of a person who is or was a
director, officer, employee or agent of the Company or of any other
corporation, partnership or joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the
request of the Company.
(c)
"Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d)
"Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the express
written request of the Company as a director, officer, employee,
agent or fiduciary.
(e)
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(f)
"Indemnifiable Expenses" shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a
Proceeding. Indemnifiable Expenses shall also include any of
the foregoing expenses incurred in connection with any appeal
resulting from any Proceeding, including without limitation the
premium, security for, and other costs relating to any cost, bond,
supersedes bond, or other appeal bond or its equivalent.
Indemnifiable Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amounts of judgments, penalties or
fines against Indemnitee.
(g)
"Independent Legal Counsel" means a law firm, or a member of a law
firm, that is experienced in the matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to
matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements); or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Legal Counsel" shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company
agrees to pay the reasonable fees and expenses of the Independent
Legal Counsel referred to above and to fully indemnify such counsel
against any
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and all Indemnifiable Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant thereto.
(h)
"Proceeding" shall include any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee was, is
or will be involved as a party or otherwise by reason of the fact
that Indemnitee is or was a director or officer of the Company, by
reason of any action taken by Indemnitee or of any action on
Indemnitee’s part while acting as a director or officer 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, in each case whether or not
serving in such capacity at the time any liability or expense is
incurred for which indemnification, reimbursement or advancement of
expenses can be provided under this Agreement; except one initiated
by Indemnitee to enforce Indemnitee’s rights under this
Agreement.
(i)
References to "other enterprise" shall include employee benefits
plans; references to "fines" shall include any excise tax assessed
with respect to any employee benefit plan; references to "serving
at the request of the Company" shall include any service as a
director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the Company" as referred to in this
Agreement.
2.
Indemnification . Indemnitee shall be indemnified and
held harmless by the Company to the fullest extent permitted by its
Certificate of Incorporation, Bylaws, the Delaware General
Corporation Law (the "DGCL") and other applicable law. In
furtherance of the foregoing indemnification, and without limiting
the generality thereof:
(a)
Proceedings Other than Proceedings by or in the Right of the
Company . The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2(a) if,
by reason of Indemnitee’s Corporate Status, Indemnitee is, or
is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the
Company. Pursuant to this Section 2(a), Indemnitee shall
be indemnified against all Indemnifiable Expenses, judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the bests
interests of the Company and, in the case of a criminal proceeding,
had no reasonable cause to believe such conduct was unlawful.
(b)
Proceedings by or in the Right of the Company . The
Company shall indemnify Indemnitee in accordance with the
provisions of this Section 2(b) if, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be made, a party to or a participant in any
Proceeding brought by or in the right of the Company.
Pursuant to this Section 2(b),
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Indemnitee shall be indemnified against all Indemnifiable
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any
claim, issue or matter therein, 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. No
indemnification against such Indemnifiable Expenses shall be made
under this Section 2(b) in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent
that the Delaware Court of Chancery or any court in which the
Proceeding 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 indemnification.
3.
Exclusions . Notwithstanding any provision in this
Agreement, the Company shall not be obligated to make any indemnity
or advancement of Indemnifiable Expenses under this Agreement with
respect to:
(a)
expenses and the payment of profits arising from the purchase and
sale (or sale and purchase) by Indemnitee of securities in
violation of Section 16(b) of the Exchange Act, or
similar provisions of state statutory law or common law; or
(b)
any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees but excluding
any Proceeding brought to establish or enforce a right to
indemnification under this Agreement (which shall be governed by
the provisions of Section 17 of this Agreement), unless the
Board of Directors authorized the Proceeding (or any part of the
Proceeding) prior to its initiation.
4.
Partial Indemnity; Successful Defense . If Indemnitee
is entitled under any provision of this Agreement to
indemnification by the Company for some portion of the
Indemnifiable Expenses, judgments, fines, penalties and amounts
paid in settlement actually and reasonably incurred by Indemnitee
in the investigation, defense, appeal or settlement of any
Proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of
such Indemnifiable Expenses, judgments, fines, penalties and
amounts paid in settlement to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part,
the Company shall indemnify Indemnitee against all Indemnifiable
Expenses actually and reasonably incurred by Indemnitee in
connection therewith. If Indemnitee is not wholly successful
in such Proceeding but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters in
such Proceeding, the Company shall indemnify Indemnitee against all
Indemnifiable Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with each
successfully resolved claim, issue or matter. For purposes of
this Section and without limitation, the termination of any
claims, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
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5.
Indemnification for Indemnifiable Expenses of a Witness
. Notwithstanding any other provisions of this Agreement, to
the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, Indemnitee shall be indemnified against all
Indemnifiable Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection
therewith.
6.
Advancement of Expenses . The Company agrees to pay
Indemnifiable Expenses incurred by Indemnitee in connection with
any Proceeding in advance of the final disposition thereof,
provided that the Company has received an undertaking by or on
behalf of Indemnitee to repay the amount so paid to the extent that
it is ultimately determined that Indemnitee is not entitled to be
indemnified by the Company under this Agreement or otherwise, and
provided further that the Company shall not be required to make any
such payment to the extent expressly prohibited by law. The
expenses to be paid by the Company hereunder shall be paid by the
Company as soon as practicable and within thirty (30) days
following delivery of a written request therefor by Indemnitee to
the Company.
7.
Procedure for Making Demand .
(a)
To obtain indemnification under this Agreement, Indemnitee shall
give the Company notice in writing as soon as practicable of any
claim for which indemnification is sought under this Agreement,
including therein or therewith such documentation and information
as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The omission to so notify the
Company will not relieve the Company from any liability which it
may have to Indemnitee otherwise than under this Agreement.
The Secretary of the Company shall, promptly upon receipt of such
request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.
(b)
No later than twenty-five (25) days after receipt of the written
request of Indemnitee, the Company shall determine whether
indemnification is proper under this Agreement and applicable law
as follows: (i) if a Change in Control shall have occurred, by
Independent Legal Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(A) by a majority vote of the members of the Disinterested
Directors, even though less than a quorum, or (B) by a
committee of such Disinterested Directors designated by majority
vote of such Disinterested Directors, even though less than a
quorum, or (C) if there are no such Disinterested Directors,
or if such Disinterested Directors so direct, by Independent
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