EXHIBIT 10.45
INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of February
, 2009, by and between Freescale
Semiconductor, Inc., a Delaware corporation (the “
Company ”), and [
] (the “ Indemnitee ”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, the Indemnitee is a
director and/or officer of the Company;
WHEREAS, the Company and the
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of companies
in today’s environment;
WHEREAS, the Company’s
Restated Certificate of Incorporation (“ Certificate of
Incorporation ”) and Amended and Restated By-Laws
(“ By-Laws ”) require the Company to indemnify
and advance expenses to its directors and officers to the extent
provided therein, and the Indemnitee serves as a director and/or
officer of the Company, in part, in reliance on such provisions in
the Company’s Certificate of Incorporation and
By-Laws;
WHEREAS, the Company has determined
that its inability to retain and attract as directors and officers
the most capable persons would be detrimental to the interests of
the Company, and that Company therefore should seek to assure such
persons that indemnification and insurance coverage will be
available in the future; and
WHEREAS, in recognition of the
Indemnitee’s need for substantial protection against personal
liability in order to enhance the Indemnitee’s continued
service to the Company in an effective manner and the
Indemnitee’s reliance on the Company’s Certificate of
Incorporation and By-Laws, and in part to provide the Indemnitee
with specific contractual assurance that the protection promised by
the Company’s Certificate of Incorporation and By-Laws will
be available to the Indemnitee (regardless of, among other things,
any amendment to or revocation of the applicable provisions of the
Company’s Certificate of Incorporation and By-Laws or any
change in the composition of the governing bodies of the Company or
any acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to the Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
continued coverage of the Indemnitee under the directors’ and
officers’ liability insurance policy of the
Company.
NOW, THEREFORE, in consideration of
the premises and of the Indemnitee continuing to serve the Company
directly or, on its behalf or at its request, as an officer,
director, manager, member, partner, tax matters partner, fiduciary
or trustee of,
or in any other capacity with, another Person
(as defined below) or any employee benefit plan, and intending to
be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions . In
addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement:
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(a)
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Agreement : shall mean this Indemnification Agreement, as
amended from time to time hereafter.
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(b)
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Board of
Directors : shall mean
the Board of Directors of the Company.
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(c)
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Claim : means any threatened, asserted, pending or
completed civil, criminal, administrative, investigative or other
action, suit or proceeding of any kind whatsoever, including any
arbitration or other alternative dispute resolution mechanism, or
any appeal of any kind thereof, or any inquiry or investigation,
whether instituted by the Company, any governmental agency or any
other party, that the Indemnitee in good faith believes might lead
to the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other, including
any arbitration or other alternative dispute resolution
mechanism.
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(d)
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Indemnifiable
Expenses : means
(i) all expenses and liabilities, including judgments, fines,
penalties, interest, amounts paid in settlement with the approval
of the Company, and counsel fees and disbursements (including,
without limitation, experts’ fees, court costs, retainers,
transcript fees, duplicating, printing and binding costs, as well
as telecommunications, postage and courier charges) paid or
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to investigate, defend, be a witness in or participate in, any
Claim by reason of the fact that Indemnitee is or was or has agreed
to serve as a director, officer, employee or agent of the Company,
or while serving as a director or officer of the Company, is or was
serving or has agreed to serve on behalf of or at the request of
the Company as a director, officer, employee or agent (which, for
purposes hereof, shall include a trustee, fiduciary, partner or
manager or similar capacity) of another corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of any action
alleged to have been taken or omitted in any such capacity, whether
occurring before, on or after the date of this Agreement (any such
event, an “Indemnifiable Event”), (ii) any
liability pursuant to a loan guaranty or otherwise, for any
indebtedness of the Company or any subsidiary of the Company,
including, without limitation, any indebtedness which the Company
or any subsidiary of the
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Company has assumed or taken subject
to, and (iii) any liabilities which an Indemnitee incurs as a
result of acting on behalf of the Company (whether as a fiduciary
or otherwise) in connection with the operation, administration or
maintenance of an employee benefit plan or any related trust or
funding mechanism (whether such liabilities are in the form of
excise taxes assessed by the United States Internal Revenue
Service, penalties assessed by the Department of Labor,
restitutions to such a plan or trust or other funding mechanism or
to a participant or beneficiary of such plan, trust or other
funding mechanism, or otherwise).
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(e)
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Indemnitee-Related Entities
: means any corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise (other than the Company or any
other corporation, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise
Indemnitee has agreed, on behalf of the Company or at the
Company’s request, to serve as a director, officer, employee
or agent and which service is covered by the indemnity described in
this Agreement) from whom an Indemnitee may be entitled to
indemnification or advancement of expenses with respect to which,
in whole or in part, the Company may also have an indemnification
or advancement obligation (other than as a result of obligations
under an insurance policy).
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(f)
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Jointly
Indemnifiable Claim :
means any Claim for which the Indemnitee shall be entitled to
indemnification from both an Indemnitee-Related Entity and the
Company pursuant to applicable law, any indemnification agreement
or the certificate of incorporation, by-laws, partnership
agreement, operating agreement, certificate of formation,
certificate of limited partnership or comparable organizational
documents of the Company and an Indemnitee-Related
Entity.
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(g)
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Person : means any individual, corporation, firm,
partnership, joint venture, limited liability company, estate,
trust, business association, organization, governmental entity or
other entity.
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2. Basic Indemnification
Arrangement; Advancement of Expenses .
(a) In the event that the Indemnitee
was, is or becomes subject to, a party to or witness or other
participant in, or is threatened to be made subject to, a party to
or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company shall
indemnify the Indemnitee, or cause such Indemnitee to be
indemnified, to the fullest extent permitted by Delaware law in
effect on the date hereof and as amended from time to time;
provided , however , that no change in Delaware law
shall have the effect of reducing the benefits available to the
Indemnitee
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hereunder based on Delaware law as in effect on
the date hereof or as such benefits may improve as a result of
amendments after the date hereof. The rights of the Indemnitee
provided in this Section 2 shall include, without limitation,
the rights set forth in the other sections of this Agreement.
Payments of Indemnifiable Expenses shall be made as soon as
practicable but in any event no later than twenty (20) days
after written demand is presented to the Company, against any and
all Indemnifiable Expenses.
(b) If so requested by the
Indemnitee, the Company shall advance, or cause to be advanced
(within two business days of such request), any and all
Indemnifiable Expenses incurred by the Indemnitee (an “
Expense Advance ”). The Company shall, in accordance
with such request (but without duplication), either (i) pay,
or cause to be paid, such Indemnifiable Expenses on behalf of the
Indemnitee, or (ii) reimburse, or cause the reimbursement of,
the Indemnitee for such Indemnifiable Expenses. The
Indemnitee’s right to an Expense Advance is absolute and
shall not be subject to any condition that the Board of Directors
shall not have determined that the Indemnitee is not entitled to be
indemnified under applicable law. However, the obligation of the
Company to make an Expense Advance pursuant to this
Section 2(b) shall be subject to the condition that, if, when
and to the extent that a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or
lapsed) that the Indemnitee is not entitled to be so indemnified
under applicable law, the Company shall be entitled to be
reimbursed by the Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid (it being understood
and agreed that the foregoing agreement by the Indemnitee shall be
deemed to satisfy any requirement that the Indemnitee provide the
Company with an undertaking to repay any Expense Advance if it is
ultimately determined that the Indemnitee is not entitled to
indemnification under applicable law). The Indemnitee’s
undertaking to repay such Expense Advances shall be unsecured and
interest-free.
(c) Notwithstanding anything in this
Agreement to the contrary, the Indemnitee shall not be entitled to
indemnification or advancement of Indemnifiable Expenses pursuant
to this Agreement in connection with any Claim initiated by the
Indemnitee unless (i) the Company has joined in or the Board
of Directors of the Company has authorized or consented to the
initiation of such Claim or (ii) the Claim is one to enforce
the Indemnitee’s rights under this Agreement (including an
action pursued by the Indemnitee to secure a determination that the
Indemnitee should be indemnified under applicable law).
(d) The indemnification obligations
of the Company under Section 2(a) shall be subject to the
condition that the Board of Directors shall not have determined (by
majority vote of directors who are not parties to the applicable
Claim) that the indemnification of the Indemnitee is not proper in
the circumstances because the Indemnitee is not entitled to be
indemnified under applicable law. If the Board of Directors
determines that the Indemnitee is not entitled to be indemnified in
whole or in part under applicable law, the Indemnitee shall have
the right to commence litigation in any court in the States of New
York or Delaware having subject matter jurisdiction thereof and in
which venue is proper, seeking an initial determination by the
court or challenging any such determination by the Board of
Directors or any aspect thereof,
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including the legal or factual bases therefor,
and the Company hereby consents to service of process and to appear
in any such proceeding. If the Indemnitee commences legal
proceedings in a court of competent jurisdiction to secure a
determination that the Indemnitee should be indemnified under
applicable law, any determination made by the Board of Directors
that the Indemnitee is not entitled to be indemnified under
applicable law shall not be binding, the Indemnitee shall continue
to be entitled to receive Expense Advances, and the Indemnitee
shall not be required to reimburse the Company for any Expense
Advance, until a final judicial determination is made (as to which
all rights of appeal therefrom have been exhausted or lapsed) that
the Indemnitee is not entitled to be so indemnified under
applicable law. Any determination by the Board of Directors
otherwise shall be conclusive and binding on the Company and the
Indemnitee.
(e) To the extent that the
Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Indemnitee shall be
indemnified against all Indemnifiable Expenses actually and
reasonably incurred in connection therewith, notwithstanding an
earlier determination by the Board of Directors that the Indemnitee
is not entitled to indemnification under applicable law.
3. Indemnification for Additional
Expenses . The Company shall indemnify, or cause the
indemnification of, the Indemnitee against any and all
Indemnifiable Expenses and, if requested by the Indemnitee, shall
advance such Indemnifiable Expenses to the Indemnitee subject to
and in accordance with Section 2(b) and (d), which are
incurred by the Indemnitee in connection with any action brought by
the Indemnitee, the Company or any other Person with respect to the
Indemnitee’s right to: (i) indemnification or an Expense
Advance by the Company under this Agreement or any provision of the
Company’s Certificate of Incorporation and/or By-Laws and/or
(ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless
of whether the Indemnitee ultimately is determined to be entitled
to such indemnification, Expense Advance or insurance recovery, as
the case may be; provided that t
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