EXHIBIT 10.1
NANOMETRICS
INCORPORATED
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(“ Agreement ”) is entered into as of
, 2007, by
and between Nanometrics Incorporated, a Delaware corporation (the
“ Corporation ”), and
(“ Indemnitee ”), and shall be effective as of
the first date Indemnitee rendered services to the
Corporation.
RECITALS
A. The Corporation and Indemnitee
recognize the continued difficulty in obtaining liability insurance
for its 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.
B. The Corporation 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.
C. The Corporation desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Corporation and, in part, in order
to induce Indemnitee to continue to provide services to the
Corporation, wishes to provide for the indemnification and
advancing of expenses to Indemnitee to the maximum extent permitted
by Delaware law.
D. In view of the considerations set
forth above, the Corporation desires that Indemnitee be indemnified
by the Corporation as set forth herein.
NOW, THEREFORE, the Corporation and
Indemnitee hereby agree as follows:
1. Indemnification
.
(a) Indemnification of
Expenses . The Corporation shall indemnify Indemnitee 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
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 (hereinafter a “
Claim ”) by reason of (or arising in part out of) any
event or occurrence related to the fact that Indemnitee is or was a
director, officer, employee, agent or fiduciary of the Corporation,
or any subsidiary of the Corporation, or is or was serving at the
request of the Corporation 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 (hereinafter an “ Indemnifiable Event
”) against 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, be
a witness in or participate in, any such 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
Corporation, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed
on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement (collectively, hereinafter “
Expenses ”), including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses. Such payment of Expenses shall be made by the
Corporation as soon as practicable but in any event no later than
10 days after written demand by Indemnitee therefor is presented to
the Corporation.
(b) Reviewing Party .
Notwithstanding the foregoing, (i) the obligations of the
Corporation under Section 1(a) shall be subject to the
condition that the Reviewing Party (as defined in
Section 8(e) hereof) shall not have determined (in a
written opinion, in any case in which the Independent Legal Counsel
referred to in Section 1(c) hereof is involved) that
Indemnitee would not be permitted to be indemnified under Delaware
law, and (ii) the obligation of the Corporation to make an
advance payment of Expenses to Indemnitee pursuant to
Section 2(a) (an “ Expense Advance
”) shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee
would not be permitted to be so indemnified under Delaware law, the
Corporation shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Corporation) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in the Court of
Chancery of the State of Delaware to secure a determination that
Indemnitee should be indemnified under Delaware law, any
determination made by the Reviewing Party that Indemnitee would not
be permitted to be indemnified under Delaware law shall not be
binding and Indemnitee shall not be required to reimburse the
Corporation for any Expense Advance 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 Corporation for any
Expense Advance shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control (as defined in
Section 8(c) hereof), the Reviewing Party shall be
selected by the Board of Directors, unless the Indemnitee elects to
have the Reviewing Party be Independent Legal Counsel (as defined
in Section 8(d) hereof) selected by Indemnitee and
approved by the Corporation (which approval shall not be
unreasonably withheld). If there has been such a Change in Control
(other than a Change in Control which has been approved by a
majority of the Corporation’s Board of Directors who were
directors immediately prior to such Change in Control), the
Reviewing Party shall be the Independent Legal Counsel referred to
in Section 1(c) hereof. If there has been no
determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to
be indemnified in whole or in part under Delaware law, Indemnitee
shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or
factual bases therefor, and the Corporation hereby consents to
service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive
and binding on the Corporation and Indemnitee.
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(c) Change in Control . The
Corporation agrees that if there is a Change in Control of the
Corporation (other than a Change in Control which has been approved
by a majority of the Corporation’s Board of Directors who
were directors immediately prior to such Change in Control) then,
with respect to all matters thereafter arising concerning the
rights of Indemnitees to payments of Expenses and Expense Advances
under this Agreement or any other agreement or under the
Corporation’s Certificate of Incorporation or Bylaws as now
or hereafter in effect, Independent Legal Counsel shall be selected
by Indemnitee and approved by the Corporation (which approval shall
not be unreasonably withheld). Such counsel, among other things,
shall render its written opinion to the Corporation and Indemnitee
as to whether and to what extent Indemnitee would be permitted to
be indemnified under Delaware law and the Corporation agrees to
abide by such opinion. The Corporation agrees to pay the reasonable
fees of the Independent Legal Counsel referred to above and to
fully indemnify 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.
(d) Mandatory Payment of
Expenses . Notwithstanding any other provision of this
Agreement other than Section 7 hereof, to the extent
that Indemnitee has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit, proceeding, inquiry or
investigation referred to in Section (1)(a) hereof or
in the defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee in
connection therewith.
2. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Corporation shall advance all Expenses incurred by Indemnitee.
The advances to be made hereunder shall be paid by the Corporation
to Indemnitee as soon as practicable but in any event no later than
ten (10) days after written demand by Indemnitee therefor to
the Corporation.
(b) Notice/Cooperation by
Indemnitee . Indemnitee shall, as a condition precedent to
Indemnitees’ right to be indemnified under this Agreement,
give the Corporation 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 Corporation
shall be directed to the Chief Executive Officer of the Corporation
at the address shown on the signature page of this Agreement (or
such other address as the Corporation shall designate in writing to
Indemnitee). In addition, Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require and
as shall be within Indemnitees’ power.
(c) No Presumptions; Burden of
Proof . For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of guilty or nolo
contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have
any particular belief or that a court has determined that
indemnification is not permitted by Delaware law. In addition,
neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met
such standard of conduct or did
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not have such belief, prior to the commencement
of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under Delaware
law, shall be a defense to Indemnitee’s claim or create a
presumption that Indemnitee has not met any particular standard of
conduct or did not have any particular belief. In connection with
any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Corporation to establish that Indemnitee is
not so entitled.
(d) Notice to Insurers . If,
at the time of the receipt by the Corporation of a notice of a
Claim pursuant to Section 2(b) hereof, the Corporation
has liability insurance in effect which may cover such Claim, the
Corporation shall give prompt notice of the commencement of such
Claim to the insurers in accordance with the procedures set forth
in the respective policies. The Corporation shall thereafter take
all necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such
action, suit, proceeding, inquiry or investigation in accordance
with the terms of such policies.
(e) Selection of Counsel . In
the event the Corporation shall be obligated hereunder to pay the
Expenses of any Claim, the Corporation shall be entitled to assume
the defense of such Claim 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 Corporation,
the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Claim; provided that,
(i) Indemnitee shall have the right to employ
Indemnitees’ counsel in any such Claim at Indemnitee expense
and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized by the Corporation,
(B) Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Corporation and Indemnitee in the
conduct of any such defense, or (C) the Corporation shall not
continue to retain such counsel to defend such Claim, then the fees
and expenses of Indemnitee counsel shall be at the expense of the
Corporation. The Corporation shall have the right to conduct such
defense as it sees fit in its sole discretion, including the right
to settle any claim against Indemnitee without the consent of the
Indemnitee.
3. Additional Indemnification
Rights; Nonexclusivity .
(a) Scope . The Corporation
hereby agrees to indemnify Indemnitee
