INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“ Agreement ”) is
made and entered into by and between Tvia, Inc., a Delaware
corporation (the “ Company ”), and ___(“
Indemnitee ”), effective as of October 13,
2008.
WHEREAS,
Indemnitee’s service to the Company substantially benefits
the Company;
WHEREAS, competent
and experienced individuals are reluctant to serve as directors,
officers or employees of corporations or in certain other
capacities unless they are provided with adequate protection
through insurance or indemnification against the risks of claims
and actions against them arising out of such service;
WHEREAS,
Indemnitee does not regard the protection currently provided by
applicable law, the Company’s governing documents and any
insurance as adequate under the present circumstances, and
Indemnitee may not be willing to serve as a director or officer
without additional protection;
WHEREAS, in order
to induce Indemnitee to continue to provide services to the
Company, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses
on behalf of, Indemnitee as permitted by applicable law;
and
WHEREAS, this
Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s certificate of
incorporation and bylaws, and any resolutions adopted pursuant
thereto, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or
abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE,
the Company and Indemnitee do hereby agree as follows:
(a)
“ Corporate Status ” describes the status of a
person who is or was a director, trustee, general partner, managing
member, officer, employee, agent or fiduciary of the Company or any
other Enterprise.
(b)
“ DGCL ” means the General Corporation Law of
the State of Delaware.
(c)
“ Enterprise ” means the Company and any other
corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, trustee, general partner, managing member, officer,
employee, agent or fiduciary.
(d)
“ Expenses ” include all reasonable
attorneys’ fees, retainers, court costs, transcript costs,
fees and costs of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also include
(i) Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium,
security for, and other costs relating to any cost bond,
supersedeas bond or other
appeal bond or
their equivalent, and (ii) for purposes of Section 12(d),
Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the
Company. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(e)
“ Proceeding ” means any threatened, pending or
completed action, suit, arbitration, mediation, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or
investigative nature, including any appeal therefrom, in which
Indemnitee was, is or will be involved as a party, a potential
party, a non-party witness or otherwise by reason of (i) the
fact that Indemnitee is or was a director, officer or employee of
the Company, (ii) any action taken by Indemnitee or any action
or inaction on Indemnitee’s part while acting as a director,
officer or employee of the Company, or (iii) the fact that he
or she is or was serving at the request of the Company as a
director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of the Company or any other
Enterprise, in each case whether or not serving in such capacity at
the time any liability or Expense is incurred for which
indemnification or advancement of expenses can be provided under
this Agreement.
(f) Reference
to “ other enterprises ” shall include employee
benefit plans; references to " fines ” shall include
any excise taxes assessed on a person with respect to any employee
benefit plan; references to “ serving at the request of
the Company ” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on,
or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “ not opposed to the best
interests of the Company ” as referred to in this
Agreement.
2.
Indemnity in Third-Party Proceedings . The Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 2 if Indemnitee is, or is threatened to be made, a
party to or a participant in any Proceeding, other than a
Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 2, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law
against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his
or her behalf in connection with such Proceeding or any claim,
issue or matter therein, if Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his
or her conduct was unlawful.
3.
Indemnity in Proceedings by or in the Right of the Company .
The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law
against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with such Proceeding
or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification
for Expenses shall be made under this Section 3 in respect of
any claim, issue or matter as to which Indemnitee shall have been
adjudged by a court of competent jurisdiction to be liable to the
Company, unless and only to the extent that the Delaware Court of
Chancery or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
such expenses as the Delaware Court of Chancery or such other court
shall deem proper.
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4.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . To the extent that Indemnitee is a party to or a
participant in and is successful (on the merits or otherwise) in
defense of any Proceeding or any claim, issue or matter therein,
the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. To the extent
permitted by applicable law, if Indemnitee is not wholly successful
in such Proceeding but is successful, on the merits or otherwise,
in defense of one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with (a) each
successfully resolved claim, issue or matter and (b) any
claim, issue or matter related to any such successfully resolved
claim, issuer or matter. For purposes of this Section 4, the
termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
5.
Indemnification for Expenses of a Witness . 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, Indemnitee
shall be indemnified to the fullest extent permitted by applicable
law against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection
therewith.
6.
Additional Indemnification .
(a) Notwithstanding
any limitation in Sections 2, 3 or 4, the Company shall
indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against
all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with the Proceeding or any claim, issue or
matter therein.
(b) For
purposes of Section 6(a), the meaning of the phrase “
to the fullest extent permitted by applicable law ”
shall include, but not be limited to:
(i) the
fullest extent permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement
of the DGCL; and
(ii) the
fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its
officers and directors.
7.
Exclusions . Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement
to make any indemnity in connection with any Proceeding (or any
part of any Proceeding):
(a) for
which payment has actually been made to or on behalf of Indemnitee
under any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount
paid;
(b) for
an accounting or disgorgement of profits pursuant to Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar
provisions of federal, state or local statutory law or common law,
if Indemnitee is held liable therefor (including pursuant to any
settlement arrangements);
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(c) for
any reimbursement of the Company by Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any
profits realized by Indemnitee from the sale of securities of the
Company, as required in each case under the Securities Exchange Act
of 1934, as amended (including any such reimbursements that arise
from an accounting restatement of the Company pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”), or the payment to the Company
of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 306 of the Sarbanes-Oxley
Act), if Indemnitee is held liable therefor (including pursuant to
any settlement arrangements);
(d) initiated
by Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees, agents or other indemnitees, unless
(i) the Company’s board of directors authorized the
Proceeding (or the relevant part of the Proceeding) prior to its
initiation, (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company
under applicable law, (iii) otherwise authorized in Section 12(d)
or (iv) otherwise required by applicable law; or
(e) if
prohibited by applicable law.
8.
Advances of Expenses . The Company shall advance, to the
extent not prohibited by law, the Expenses incurred by Indemnitee
in connection with any Proceeding, and such advancement shall be
made as soon as reasonably practicable, but in any event no later
than sixty (60) days, after the receipt by the Company of a
written statement or statements requesting such advances from time
to time (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in
connection with legal services, any references to legal work
performed or to expenditure made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice). Advances shall be unsecured and
interest free and made without regard to Indemnitee’s ability
to repay such advances. Indemnitee hereby undertakes to repay any
advance to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company. This
Section 8 shall not apply to any claim made by Indemnitee for
which indemnity is excluded pursuant to this Agreement.
9.
Procedure for Notification and Defense of Claim .
(a) Indemnitee
shall notify the Company in writing of any matter with respect to
which Indemnitee intends to seek indemnification or advancement of
Expenses as soon as reasonably practicable following the receipt by
Indemnitee of written notice thereof. The written notification to
the Company shall include a description of the nature of the
Proceeding and the facts underlying the Proceeding. The failure by
Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or
otherwise than under this Agreement, and any delay in so notifying
the Company shall not constitute a waiver by Indemnitee of any
rights, except to the extent that such failure or delay materially
prejudices the Company.
(b) If,
at the time of the receipt of a notice of a Proceeding pursuant to
the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the
commencement of the Proceeding to the insurers in accordance with
the procedures set forth in the respective policies. The Company
shall thereafter take all reasonably necessary or desirable action
to cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such Proceeding in accordance with the terms
of such policies.
(c) In
the event the Company may be obligated to make any indemnity in
connection with a Proceeding, the Company shall be entitled to
assume the defense of such Proceeding with counsel
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