Exhibit 10.8
MAXIM
INTEGRATED PRODUCTS, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into,
effective as of
,
by and between Maxim Integrated Products, Inc., a Delaware
corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, Indemnitee is a director
and/or officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims currently being asserted against directors and officers of
corporations;
WHEREAS, the Certificate of
Incorporation permits and Bylaws of the Company require or permit,
as the case may be, the Company to indemnify and advance expenses
to its directors and officers to the fullest extent permitted under
Delaware law, and the Indemnitee has been serving and continues to
serve as a director and/or officer of the Company in part in
reliance on the Company’s Certificate of Incorporation and
Bylaws; and
WHEREAS, in recognition of
Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the
aforesaid Certificate of Incorporation and Bylaws,
(ii) specific contractual assurance that the protection
promised by the Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of the Certificate of Incorporation and
Bylaws or any change in the composition of the Company’s
Board of Directors or acquisition transaction relating to the
Company), and (iii) an inducement to provide effective
services to the Company as a director and/or officer, the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted under Delaware law and as
set forth in this Agreement, and, to the extent insurance is
maintained, to provide for the continued coverage of Indemnitee
under the Company’s directors’ and officers’
liability insurance policies.
NOW, THEREFORE, in consideration of
the above premises and of Indemnitee continuing to serve the
Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties agree as
follows:
(a)
Board : the Board of Directors of the Company.
(b)
Affiliate : any corporation or other person or entity that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the
person specified.
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(c)
Change in Control : shall be deemed to have occurred if
(i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (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 stock 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 50% 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 who at the beginning of such period
constitute the Board and any new director whose election by the
Board 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, or (iii) the
stockholders of the Company approve a merger or consolidation of
the Company with any other entity, other than a merger or
consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
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 of the Company’s assets.
(d)
Expenses : any expense, liability, or loss, including
attorneys’ fees, judgments, fines, ERISA excise taxes and
penalties, amounts paid or to be paid in settlement, any interest,
assessments, or other charges imposed thereon, any federal, state,
local, or foreign taxes imposed as a result of the actual or deemed
receipt of any payments under this Agreement, and all other costs
and obligations, paid or incurred in connection with investigating,
defending, being a witness in, participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding
relating to any Indemnifiable Event.
(e)
Indemnifiable Event : any event or occurrence that takes
place either prior to or after the execution of this Agreement,
related to the fact that Indemnitee is or was a director or officer
of the Company, or while a director or officer is or was serving at
the request of the Company as a director, officer, employee,
trustee, agent, or fiduciary of another foreign or domestic
corporation, partnership, joint venture, employee benefit plan,
trust, or other enterprise, or was a director, officer, employee,
or agent of a foreign or domestic corporation that was a
predecessor corporation of the Company or of another enterprise at
the request of such predecessor corporation, or related to anything
done or not done by Indemnitee in any such capacity, whether or not
the basis of the Proceeding is alleged action in an official
capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent
of the Company, as described above.
(f)
Independent Counsel : the person or body appointed in
connection with Section 3.
(g)
Proceeding : any threatened, pending, or completed action,
suit, or
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proceeding or any alternative dispute resolution
mechanism (including an action by or in the right of the Company),
or any inquiry, hearing, or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes
might lead to the institution of any such action, suit, or
proceeding, whether civil, criminal, administrative, investigative,
or other.
(h)
Reviewing Party : the person or body appointed in accordance
with Section 3.
(i)
Voting Securities : any securities of the Company that vote
generally in the election of directors.
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2.
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Agreement to
Indemnify .
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(a)
General Agreement . In the event Indemnitee was, is, or
becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by
law, as the same exists or may hereafter be amended or interpreted
(but in the case of any such amendment or interpretation, only to
the extent that such amendment or interpretation permits the
Company to provide broader indemnification rights than were
permitted prior thereto). The parties hereto intend that this
Agreement shall provide for indemnification in excess of that
expressly permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of
Incorporation, its Bylaws, vote of its stockholders or
disinterested directors, or applicable law.
(b)
Initiation of Proceeding . Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Board has consented to the initiation of such
Proceeding; (ii) the Proceeding is one to enforce
indemnification rights under Section 5; or (iii) the
Proceeding is instituted after a Change in Control (other than a
Change in Control approved by a majority of the directors on the
Board who were directors immediately prior to such Change in
Control) and Independent Counsel has approved its
initiation.
(c)
Expense Advances . If so requested by Indemnitee, the
Company shall advance (within twenty business days of such request)
any and all Expenses incurred by Indemnitee (an “Expense
Advance”). The Indemnitee shall qualify for such Expense
Advances upon the execution and delivery to the Company of this
Agreement which shall constitute an undertaking providing that the
Indemnitee undertakes to repay such Expense Advances if and to the
extent that it is ultimately determined by a court of competent
jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company. Until
it is so finally determined by the court that Indemnitee is not
entitled indemnification, Indemnitee shall not be required to repay
such Expense Advances to the Company and Indemnitee shall continue
to receive Expense Advances pursuant to this section 2(c).
Indemnitee’s obligation to reimburse the Company
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for Expense Advances shall be unsecured and no
interest shall be charged thereon. To the extent permissible under
third party policies, the Company agrees that invoices for Expense
Advances shall be billed in the name of and be payable directly by
the Company.
(d)
Mandatory Indemnification . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding
relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
(e)
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
Attorneys’ fees and expenses shall not be prorated but shall
be deemed to apply to the portion of indemnification to which
Indemnitee is entitled.
(f)
Prohibited Indemnification . No indemnification pursuant to
this Agreement shall be paid by the Company on account of any
Proceeding in which judgment is rendered against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee
of securities of the Company pursuant to the provisions of
Section 16(b) of the Exchange Act, or similar provisions of
any federal, state, or local laws; provided, however, that
notwithstanding any limitation set forth in this Section 2(f)
regarding the Company’s obligation to provide
indemnification, Indemnitee shall be entitled under
Section 2(c) to receive Expense Advances hereunder with
respect to any such Proceeding unless and until a court having
jurisdiction over the Proceeding shall have made a final judicial
determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that Indemnitee has violated said
statute.
3.
Reviewing Party . Prior to any Change in Control, the
Reviewing Party shall be any appropriate person or body consisting
of a member or members of the Board or any other person or body
appointed by the Board who is not a party to the particular
Proceeding with respect to which Indemnitee is seeking
indemnification. With respect to all matters arising after a Change
in Control (other than a Change in Control approved by a majority
of the directors on the Board who were directors immediately prior
to such Change in Control) concerning
