Exhibit 10.1
MICROTUNE, INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is effective as of August 30, 2005, and
is between Microtune, Inc., a Delaware corporation (the
“Company”), and Bernard T. Marren
(“Indemnitee”).
WHEREAS, the Company desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, in order to induce
Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and the
advancement of expenses to, Indemnitee to the maximum extent
permitted by law;
WHEREAS, the Company and Indemnitee
recognize the continued difficulty in obtaining liability insurance
for the Company’s directors, officers, employees, agents and
fiduciaries, 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 directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely
limited;
WHEREAS, the Company and Indemnitee
desire to have in place the additional protection provided by an
indemnification agreement, and to provide indemnification and
advancement of expenses to the Indemnitee to the maximum extent
permitted by Delaware law; and
WHEREAS, in view of the
considerations set forth above, the Company desires that Indemnitee
shall be indemnified and advanced expenses by the Company as set
forth herein;
NOW, THEREFORE, the Company and
Indemnitee hereby agree as set forth below.
1. Certain Definitions
.
a. “Change in Control”
shall mean, and shall be deemed to have occurred if, on or after
the date of this Agreement, (i) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company
acting in such capacity 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,
becomes the “beneficial owner” (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than 50% of the total voting power
represented by the Company’s then outstanding Voting
Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board of Directors of the Company and any new director whose
election by the Board of Directors 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 thereof, (iii) the stockholders of
the Company approve a merger or consolidation of the Company with
any other corporation 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 of (in one transaction or a
series of related transactions) all or substantially all of the
Company’s assets.
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b. “Claim” shall mean
with respect to a Covered Event: any threatened, pending or
completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of
any such action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other.
c. References to the
“Company” shall include, in addition to Microtune,
Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which
Microtune, Inc. (or any of its wholly owned subsidiaries) is a
party that, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers,
employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, Indemnitee shall
stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.
d. “Covered Event” shall
mean any event or occurrence related to the fact that Indemnitee is
or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at
the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction
on the part of Indemnitee while serving in such
capacity.
e. “Expenses” shall mean
any and all expenses (including attorneys’ fees and all other
costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in
or to participate in, any action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation),
judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) of any Claim and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this
Agreement.
f. “Expense Advance”
shall mean a payment to Indemnitee pursuant to Section 3 of
Expenses in advance of the settlement of or final judgment in any
action, suit, proceeding or alternative dispute resolution
mechanism, hearing, inquiry or investigation that constitutes a
Claim.
g. “Independent Legal
Counsel” shall mean an attorney or firm of attorneys,
selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or
Indemnitee within the last three years (other than with respect to
matters concerning the rights of Indemnitee under this Agreement,
or of other Indemnitees under similar indemnity
agreements).
h. References to “other
enterprises” shall include employee benefit plans; references
to “fines” shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references
to “serving at the request of the Company” shall
include any service as a director, officer, employee, agent or
fiduciary of the Company that imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to
in this Agreement.
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i. “Reviewing Party”
shall mean, subject to the provisions of Section 2(d), any person
or body appointed by the Board of Directors in accordance with
applicable law to review the Company’s obligations hereunder
and under applicable law, which may include a member or members of
the Company’s Board of Directors, Independent Legal Counsel
or any other person or body not a party to the particular Claim for
which Indemnitee is seeking indemnification.
j. “Section” refers to a
section of this Agreement unless otherwise indicated.
k. “Voting Securities”
shall mean any securities of the Company that vote generally in the
election of directors.
2. Indemnification
.
a. Indemnification of
Expenses . Subject to the provisions of Section 2(b) below, the
Company shall indemnify Indemnitee for Expenses to the fullest
extent permitted by law if Indemnitee was or 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, any Claim (whether
by reason of or arising in part out of a Covered Event), including
all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses.
b. Review of Indemnification
Obligations . Notwithstanding the foregoing, in the event any
Reviewing Party shall have determined (in a written opinion, in any
case in which Independent Legal Counsel is the Reviewing Party)
that Indemnitee is not entitled to be indemnified hereunder under
applicable law, (i) the Company shall have no further obligation
under Section 2(a) to make any payments to Indemnitee not made
prior to such determination by such Reviewing Party, and (ii) the
Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all Expenses
theretofore paid to Indemnitee to which Indemnitee is not entitled
hereunder under applicable law; provided , however ,
that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee is entitled to be indemnified
hereunder under applicable law, any determination made by any
Reviewing Party that Indemnitee is not entitled to be indemnified
hereunder under applicable law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any Expenses
theretofore paid in indemnifying Indemnitee until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
Indemnitee’s obligation to reimburse the Company for any
Expenses shall be unsecured and no interest shall be charged
thereon.
c. Indemnitee Rights on
Unfavorable Determination; Binding Effect . If any Reviewing
Party determines that Indemnitee substantively is not entitled to
be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an
initial determination by the court or challenging any such
determination by such Reviewing Party or any aspect thereof,
including the legal or factual bases therefore, and, subject to the
provisions of Section 15, the Company hereby consents to service of
process and to appear in any such proceeding. Absent such
litigation, any determination by any Reviewing Party shall be
conclusive and binding on the Company and Indemnitee.
d. Selection of Reviewing Party;
Change in Control . If there has not been a Change in Control,
any Reviewing Party shall be selected by the Board of Directors,
and if there has been such a Change in Control (other than a Change
in Control that has been approved by a majority of the
Company’s Board of Directors who were directors immediately
prior to such Change in Control), any Reviewing Party with respect
to all matters thereafter arising concerning the rights of
Indemnitee to indemnification of Expenses under this Agreement or
any other agreement or under the Company’s Certificate of
Incorporation or Bylaws as now or hereafter in effect, or under any
other applicable law, if desired by Indemnitee, shall be
Independent Legal Counsel selected by Indemnitee and approved by
the Company (which approval shall not be unreasonably withheld).
Such counsel, among other things, shall render its written opinion
to the Company and Indemnitee as to whether and to what extent
Indemnitee would be entitled to be indemnified hereunder under
applicable law and the Company agrees to abide by such opinion. The
Company agrees to pay the reasonable fees of the
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Independent Legal Counsel referred to above and
to indemnify fully such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay Expenses of
more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal
Counsel shall be the Independent Legal Counsel for any or all other
Indemnitees unless (i) the employment of separate counsel by one or
more Indemnitees has been previously authorized by the Company in
writing, or (ii) an Ind
