Exhibit 10.3
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of this
day of
2005, by and between INTEGRATED DEVICE TECHNOLOGY, INC., 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;
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that the
difficulty of attracting and retaining highly competent persons to
serve the Company is detrimental to the best interest of the
Company and its stockholders and that the Company should act to
assure such persons that there will be an increased certainty of
financial protection for them in the future;
WHEREAS, Indemnitee is willing to
serve, continue to serve and/or take on additional service for, or
on behalf of, the Company on the condition that Indemnitee be so
indemnified and that such indemnification be guaranteed;
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, such action
being reasonable, prudent and necessary, so as to provide them with
the maximum protection permitted by law.
NOW THEREFORE, in consideration of
the Indemnitee’s service as an officer or director of the
Company, the Company and Indemnitee hereby agree as
follows:
ARTICLE 1
INDEMNIFICATION
Section 1.1.
Third Party Proceedings . The
Company shall indemnify Indemnitee if Indemnitee is or was a party
or is threatened to be made a party to, or otherwise becomes
involved in, any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative, or
investigative, formal or informal (other than an action by or in
the right of the Company) by reason of any action or inaction on
the part of Indemnitee 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, while a director,
officer, employee, or agent of the Company, that Indemnitee is or
was serving at the request of the Company as a director, officer,
employee, agent, or trustee of another corporation, partnership,
joint venture, trust, or other enterprise (collectively
“Agent”), against expenses (including attorneys’
fees, court costs, and the cost of appeal, attachment, and similar
bonds), 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 or, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful.
Section 1.2
. Proceedings By or in the Right
of the Company . The Company shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party
to, or otherwise becomes involved in, any threatened, pending or
completed action, suit or proceeding by or in the right of the
Company or any subsidiary of the Company to procure a judgment in
its favor by reason of the fact that Indemnitee is or was an Agent
against expenses (including attorneys’ fees, court costs, and
the cost of appeal, attachment, and similar bonds) and, to the
fullest extent permitted by law, amounts paid in settlement, in
each case to the extent actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of 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 of the relevant
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.
Section 1.3
. Mandatory Payment of
Expenses . To the extent that Indemnitee has been successful on
the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 1.1 and 1.2 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.
Dismissal without prejudice of any action, claim, issue or matter
shall entitle Indemnitee to be indemnified for expenses incurred in
defending such action, claim, issue, or matter. For purposes of
this Section 1.3 and without limitation, 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 (i) that
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests
of the Company, or (ii) with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful.
ARTICLE 2
EXPENSES; INDEMNIFICATION
PROCEDURE
Section 2.1
. Advancement of Expenses .
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 1.1 or 1.2 (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
forty-five (45) days following receipt of a written request
therefor by Indemnitee to the Company. Indemnitee shall submit with
each request for advancement of expenses such statement or
statements which shall reasonably evidence or document the expenses
incurred by Indemnitee.
Section 2.2
. Notice . Indemnitee shall,
as a condition precedent to his right to be indemnified under this
Agreement, 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 President 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 duly given (i) if
delivered by hand and receipted for by the party addressee, on the
date of such receipt, or (ii) if mailed by domestic certified or
express mail with postage prepaid, on the third business day after
the date postmarked.
Section 2.3
. Procedure.
2.3.1. Any indemnification and advances provided for in
Article 1 and Section 2.1 shall be made no later than forty-five
(45) days following receipt of a written request thereof by
Indemnitee to the Company unless a determination is made within
said forty-five (45) day period by (i) the Board of Directors by a
majority vote of a quorum consisting of directors who are not
parties to such proceeding (“Disinterested Directors”);
(ii) if such a quorum is not obtainable, or, even if obtainable, a
quorum of Disinterested Directors so directs, by independent legal
counsel in a written opinion; or (iii) by the Company’s
stockholders, that the Indemnitee has not met the relevant
standards for indemnification set forth in Section 1.1 or Section
1.2 hereof, as the case may be. Indemnitee may contest a
determination that Indemnitee has not met the relevant standard of
conduct for indemnification by petitioning a court to make an
independent determination respecting the right of indemnification
in accordance with the terms of Subsection 2.3.2 hereof.
2.3.2. If a claim under this Agreement, under any
statute, or under any provision of the Company’s Certificate
of Incorporation or Bylaws providing for indemnification, is not
paid in full by the Company within forty-five (45) days after a
written request for payment
thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter, bring an
action against the Company to recover the unpaid amount of the
claim and, subject to Section 10.3 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including
attorneys’ fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce
a claim for expenses incurred in connection with any action, suit,
or proceeding in advance of its final disposition) that Indemnitee
has not met the standards of conduct which make it permissible
under applicable law for the
