Exhibit 10.2
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of this
day of
2009, by and between Apple Inc., a California corporation (the
“Company”), and
(“Indemnitee”).
WHEREAS, the Company and Indemnitee
recognize the difficulty in obtaining directors and officers
liability insurance that fully and adequately covers directors and
officers for their acts and omissions on behalf of the Company and
its subsidiaries;
WHEREAS, the Company and Indemnitee
further recognize the substantial increase in corporate litigation
in general, subjecting officers and directors to expensive
litigation risks that may not be fully covered by liability
insurance;
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:
Section 1. Services By
Indemnitee . Indemnitee hereby agrees to serve or continue to
serve, at the will of the Company, as a director, officer or key
employee of the Company, for as long as Indemnitee is duly elected
or appointed, as the case may be, or until Indemnitee tenders his
or her resignation or is removed. For avoidance of doubt, the
Company’s obligations under this Agreement shall continue to
the extent provided for in this Agreement, notwithstanding that
Indemnitee may have ceased to be a director, officer or key
employee of the Company.
Section 2. Indemnification
.
(a) Third Party Proceedings .
In connection with any Proceeding other than those instituted by or
in the right of the Company, the Company shall indemnify Indemnitee
against any and all Expenses and Liabilities, in either case,
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf by reason of Indemnitee’s Corporate
Status unless the Company shall establish, in
accordance with the procedures described in
Section 3 of this Agreement, that Indemnitee did not act in
good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the Company, and, with respect to any
criminal Proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the
Right of the Company . In connection with any Proceeding
instituted by or in the right of the Company, the Company shall
indemnify Indemnitee against any and all Expenses and, to the
fullest extent permitted by law, amounts paid in settlement, in
each case to the extent actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf by reason of
Indemnitee’s Corporate Status unless the Company shall
establish, in accordance with the procedures described in
Section 3 of this Agreement, that Indemnitee did not act in
good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the Company and its shareholders, 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 in the performance of Indemnitee’s duty to the
Company or any Subsidiary of the Company 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 or amounts paid in settlement
and then only to the extent that the court shall
determine.
(c) Witness Expenses .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his or her Corporate
Status, a witness in any Proceeding to which Indemnitee is not a
party, he or she shall be indemnified against all Expenses incurred
by Indemnitee or on his or her behalf in connection
therewith.
Section 3. Advancement of
Expenses; Indemnification Procedure .
(a) Advancement of Expenses .
The Company shall advance all Expenses incurred by Indemnitee in
connection with any Proceeding referenced in Section 2(a) or
Section 2(b) of this Agreement (but not amounts actually paid
in settlement of any such 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
20 days following delivery of a written request therefor by
Indemnitee to the Company. Advances shall be unsecured and interest
free. Advances shall be made without regard to Indemnitee’s
ability to repay such amounts and without regard to
Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement. Advances shall include any
and all Expenses incurred pursuing an action to enforce this right
of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed.
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(b) Notice by Indemnitee .
Indemnitee shall give the Company notice in writing as soon as
practicable of any Proceeding in respect of which Indemnitee
intends to seek indemnification or advancement of Expenses
hereunder. Notice to the Company shall be directed to the General
Counsel of the Company at the address shown in Section 16(a)
of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). The omission by Indemnitee to
so notify the Company will not relieve the Company from any
liability that it may have to Indemnitee hereunder or
otherwise.
(c) Determination of
Entitlement .
(i) Where there has been a written
notice by Indemnitee for indemnification pursuant to
Section 3(b), then as soon as is reasonably practicable (but
in any event not later than 60 days) after final disposition of the
relevant Proceeding, the Company shall make a determination, if and
in the manner required by applicable law, with respect to
Indemnitee’s entitlement thereto; provided, however, that, if
a Change in Control shall have occurred, the determination shall be
made by an Independent Counsel (selected pursuant to
Section 3(c)(ii)) in a written opinion to the Company’s
Board of Directors, a copy of which shall be delivered to
Indemnitee. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall
reasonably cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or
information that is not privileged or otherwise protected from
disclosure and that is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses
(including attorneys’ fees and disbursements) actually and
reasonably incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne
by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification).
(ii) If entitlement to
indemnification is to be determined by an Independent Counsel after
a Change in Control pursuant to Section 3(c)(i), such
Independent Counsel shall be selected by Indemnitee, and Indemnitee
shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected. Within 10 days
after such written notice of selection shall have been received,
the Company may deliver to Indemnitee a written objection to such
selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does
not meet the requirements of “Independent Counsel” as
defined in Section 13(a) of this Agreement, and the objection
shall set forth with particularity the factual basis of
such
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assertion. Absent a proper and
timely objection, the person so selected shall act as the
Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
the Independent Counsel unless and until such objection is
withdrawn or a court of competent jurisdiction has determined that
such objection is without merit. If, within 20 days after the final
disposition of the Proceeding, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee
may petition a court of competent jurisdiction for resolution of
any objection which shall have been made by the Company to
Indemnitee’s selection of the Independent Counsel and/or for
the appointment as the Independent Counsel of a person selected by
the court or by such other person as the court shall designate, and
the person with respect to whom all objections are so resolved or
the person so appointed shall act as the Independent Counsel under
Section 3(c)(i) hereof. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 4(a) of
this Agreement, the Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to
the applicable standards of professional conduct then
prevailing).
(iii) The Company agrees to pay the
reasonable fees and expenses of any Independent Counsel serving
under this Agreement.
(d) Presumptions and Burdens of
Proof .
(i) In making any determination with
respect to entitlement to indemnification hereunder, the person,
persons or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled
to indemnification under this Agreement, and the Company shall
have, to the fullest extent not prohibited by law, the burden of
proof to overcome that presumption in connection with the making of
any determination contrary to that presumption. Neither the failure
of the person, persons or entity to have made a determination prior
to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual
determination by the person, persons or entity that Indemnitee has
not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(ii) The termination of any
Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that
Indemnitee did
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not act in good faith and in a
manner that he or she reasonably believed to be in or not opposed
to the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
(iii) For purposes of any
determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is in good faith
reliance on the records or books of account of any Enterprise,
including financial statements, or on information supplied to
Indemnitee by the officers of such Enterprise in the course of
their duties, or on the advice of legal counsel for such Enterprise
or on information or records given or reports made to such
Enterprise by an independent certified public accountant or by an
appraiser or other expert selected by such Enterprise. The
provisions of this Section 3(d)(iii) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which
Indemnitee may be deemed or found to have met the applicable
standard of conduct set forth in this Agreement.
(e) Notice to Insurers . If,
at the time of the receipt of a notice of a Proceeding pursuant to
Section 3(b) of this Agreement, 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. Thereafter, the Company shall 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.
(f) Relationship to Other
Sources . Indemnitee shall not be required to exercise any
rights against any other parties (for example, under any insurance
policy purchased by the Company, Indemnitee or any other person or
entity) before Indemnitee enforces this Agreement. However, to the
extent the Company actually indemnifies Indemnitee or advances
Expenses, the Company shall be entitled to enforce any such rights
that Indemnitee may have against third parties. Indemnitee shall
assist the Company in enforcing those rights if the Company pays
Indemnitee’s reasonable costs and expenses of doing
so.
(g) Defense of Claims; Selection
of Counsel .
(i) The Company shall not settle any
action, claim, or Proceeding (in whole or in part) that would
impose any Expense, judgment, fine, penalty or limitation on
Indemnitee, without Indemnitee’s prior written consent;
provided, however, that, with respect to settlements requiring
solely the payment of money either by the Company or by Indemnitee
for which the Company is obligated to reimburse Indemnitee promptly
and completely, in either case without recourse to Indemnitee, no
such consent of Indemnitee shall be required. Indemnitee shall not
settle any action, claim or Proceeding (in whole or in part) that
would
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impose any Expense, judgment, fine,
penalty or limitation on the Company without the Company’s
prior written consent, such consent not to be unreasonably
withheld.
(ii) In the event the Company shall
be obligated under Section 3(a) of this Agreement to pay the
Expenses of any Proceeding against Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such
proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee
of written notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
Proceeding, provided that (i) Indemnitee shall have the right
to employ Indemnitee’s own counsel in any such Proceeding at
Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized
by the Company, (B) Indemnitee shall have concluded in good
faith that there may be a conflict of interest between the Company
and Indemnitee or between Indemnitee and any other persons
represented by the same counsel, in the conduct of any such
defense, or (C) the Company, in fact, shall not have employed
counsel to assume the defense of such Proceeding, then the
reasonable fees and expenses of Indemnitee’s counsel shall be
at the expense of the Company.
Section 4. Remedies of
Indemnitee .
(a) In the event of any dispute
between Indemnitee and the Company hereunder as to entitlement to
indemnification, contribution or advancement of Expenses (including
where (i) a determination is made pursuant to
Section 3(c) of this Agreement that Indemnitee is not entitled
to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 3(a) of this
Agreement, (iii) payment of indemnification pursuant to
Section 3(c) of this Agreement is not made within 10 days
after a determination has been made that Indemnitee is entitled to
indemnification, (iv) no determination as to entitlement to
indemnification is timely made pursuant to Section 3(c) of
this Agreement, or (v) a contribution payment is not made in a
timely
