Exhibit 10.25
INDEMNIFICATION AGREEMENT
This Agreement, dated as of December
27, 2004, is made by and between Integrated Circuit Systems, Inc.,
a Pennsylvania corporation (the “Company”), and Russell
Weinstock (the “Indemnitee”).
WHEREAS, the Indemnitee is currently
entitled to indemnification under Pennsylvania Business Corporation
Law, By-laws and the Articles of Incorporation of the Company;
and
WHEREAS, the Company has concluded
that additional protection is necessary for its directors and
elected officers;
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent . For the purposes
of this Agreement, “agent” of the Company means any
person who is or was a director, officer, employee, agent or
fiduciary of the Company or a subsidiary of the Company, or is or
was serving at the request of, for the convenience of, or to
represent the interests of the Company or a subsidiary of the
Company as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise or entity, including service with respect to an employee
benefit plan.
(b) Disinterested Director .
For purposes of this Agreement, “Disinterested
Director” of the Company means a director of the Company who
is not and was not a party to the proceeding for which
indemnification is being sought by the claimant.
(c) Expenses . For purposes
of this Agreement, “expenses” includes all direct and
indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements,
other out-of-pocket costs and reasonable compensation for time
spent by the Indemnitee for which he is not otherwise compensated
by the Company or any third party) actually and reasonably incurred
by the Indemnitee in connection with either the investigation,
defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, Section 1741 of the
Business Corporation Law of Pennsylvania or otherwise; provided,
however, that expenses shall not include any judgments, fines,
excise taxes or penalties under the Employee Retirement Income
Security Act of 1974 (“ERISA”), or amounts paid in
settlement of a proceeding.
(d) Independent Legal Counsel
. For purposes of this Agreement, “Independent Legal
Counsel” means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the
applicable standards of professional conduct then prevailing, would
not have a conflict of interest in representing either the Company
or the Indemnitee in an action to determine the Indemnitee’s
rights under this Agreement.
(e) Proceeding . For the
purposes of this Agreement, “proceeding” means any
threatened, pending, or completed administrative hearing, action,
suit, inquiry or other actual, threatened or completed proceeding,
whether civil, criminal, administrative, investigative or any other
action, suit or proceeding whatsoever and any arbitration only when
Indemnitee is a defendant in said arbitration and Company Counsel
(as defined in Section 6(c)) only is representing Indemnitee in
said arbitration.
(f) Subsidiary . For purposes
of this Agreement, “subsidiary” means any corporation,
partnership, joint venture or other enterprise, a majority of whose
equity interests are owned by the Company, directly or through one
or more other subsidiaries.
2. Agreement to Serve . The
Indemnitee agrees to serve as an agent of the Company, at its will
(or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of the Company, so
long as he is duly appointed or elected and qualified in accordance
with the applicable provisions of the By-Laws of the Company or any
subsidiary of the Company or until such time as he tenders his
resignation in writing; provided, however, that nothing contained
in this Agreement is intended to create any right to continued
service of the Indemnitee.
3. Mandatory Indemnification
. Subject to the limitations set forth in Section 7, if the
Indemnitee is a person who was or is a party or is threatened to be
made a party to or is involved, including involvement as a witness,
in any proceeding, including any action by or in the right of the
Company, by reason of the fact that he is or was or has agreed to
become an agent, or by reason of any action alleged to have been
taken or omitted by him in any such capacity, the Company shall
indemnify the Indemnitee against all expense, liability and loss
(including but not limited to judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement),
actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of such proceeding
whether or not serving in such capacity at the time any liability
or expense is incurred; provided, however, that except as provided
in Section 7(c) of this Agreement with respect to proceedings
seeking to enforce rights to indemnification, the Company shall
indemnify the Indemnitee in connection with a proceeding (or part
thereof) initiated by the Indemnitee only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Company.
4. Mandatory Advancement of
Expenses . The Company shall advance all expenses incurred by
the Indemnitee in connection with any proceeding as defined herein
to which the Indemnitee is a party or is threatened to be made a
party or with respect to which the Indemnitee is otherwise involved
(including involvement as a witness) as an agent of the Company.
The Indemnitee hereby undertakes to repay such amounts advanced if,
but only if and to the extent that, it shall ultimately be
determined pursuant to the provisions hereof that the 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
the Indemnitee within twenty (20) days following delivery of a
written request therefor by the Indemnitee to the Company;
provided, however, that, if and to the extent the Pennsylvania
Business Corporation Law requires, an advancement of expenses
incurred by the Indemnitee in his capacity as a director or officer
shall be made only upon delivery of an undertaking by or on behalf
of the Indemnitee to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which
there is no
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further right to appeal that the Indemnitee is
not entitled to be indemnified for such expenses under this
Agreement or otherwise. All advances paid pursuant to this Section
4 shall be with the undertaking as set forth above, but otherwise
be unsecured, interest-free and payable without regard to
Indemnitee’s ability to repay such amounts and without regard
to the Company’s determination of whether Indemnitee would be
ultimately entitled to indemnification.
5. Maintenance of D&O
Insurance .
(a) So long as the Indemnitee shall
continue to serve in any capacity described in Section 2 and
thereafter so long as there is any reasonable possibility that the
Indemnitee shall be subject to any proceeding by reason of the fact
that the Indemnitee served in any of such capacities, the Company
will use reasonable efforts to purchase and maintain in effect for
the benefit of the Indemnitee one or more valid, binding and
enforceable policies of directors’ and officers’
liability insurance (“D&O Insurance”) providing, in
all respects, coverage and amounts as reasonably determined by the
Board of Directors.
(b) Notwithstanding Section 5(a),
the Company shall not be required to maintain D&O Insurance if
such is not reasonably available or if, in the reasonable business
judgment of the Board of Directors of the Company as it may exist
from time to time, either (i) the premium cost for such insurance
is substantially disproportionate to the amount of insurance or
(ii) the coverage is so limited by exclusions that there is
insufficient benefit provided by such insurance.
6. Notice and Other
Indemnification Procedures .
(a) Promptly after receipt by the
Indemnitee of notice of the commencement of or the threat of
commencement of any proceeding, the Indemnitee shall, if the
Indemnitee believes that the indemnification with respect thereto
properly may be sought from the Company under this Agreement,
notify the Company of the commencement or threat of commencement
thereof. The failure to notify or promptly notify the Company shall
not relieve the Company from any liability which it may have to the
Indemnitee otherwise under this Agreement, and shall relieve the
Company from liability hereunder only to the extent the Company has
been prejudiced.
(b) If, at the time of the receipt
of a notice of the commencement of a proceeding pursuant to Section
6(a), the Company has D&O 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
D&O Insurance policy. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, to or
on behalf of the Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such
policy.
(c) In the event the Company shall
be obligated to pay the expenses of the Indemnitee in connection
with any proceeding, the Company shall be entitled to assume the
defense of such proceeding, with counsel approved by the
Indemnitee, upon the delivery to the Indemnitee of written notice
of its election to do so. After delivery of such notice, approval
of such counsel (“Company Counsel”) by the Indemnitee
and the retention of Company Counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for
any
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fees of counsel or other expenses subsequently
incurred by the Indemnitee with respect to the same proceeding;
provided that (i) the Indemnitee shall have the right to employ his
own counsel(s) (collectively “Indemnitee’s
Counsel”) in any such proceeding at the Indemnitee’s
expense, and (ii) if (A) in Company’s sole opinion
Indemnitee’s Counsel is an expert on matter(s) in which
Company Counsel is not an expert and the Company had authorized
(which authorization may not be unreasonably withheld) Indemnitee
to employ Indemnitee’s Counsel before Indemnitee engaged
Indemnitee’s Counsel, or (B) the Indemnitee shall have
reasonably concluded that there is a conflict of interest between
the Company and the Indemnitee in the conduct of any such defense,
or (C) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, the fees and expenses of the
Indemnitee’s counsel shall be paid by the Company.
7. Determination of Right to
Indemnification .
(a) To the extent the Indemnitee has
been successful on the merits or otherwise in defense of any
proceeding referred to in Section 3 or in the defense of any claim,
issue or matter described therein, the Company shall indemnify the
Indemnitee pursuant to Section 3 against expenses actually and
reasonably incurred by him in connection with the investigation,
defense, sett
