INDEMNIFICATION AGREEMENT between and LSI Corporation
between
____________
and
LSI
Corporation
Table
of
Contents
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1.
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INDEMNIFICATION
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1
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a.
Third Party Proceedings.
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1
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b.
Proceedings By or in the Right of the Company.
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2
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c.
Mandatory Payment of Expenses.
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2
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2.
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AGREEMENT
TO SERVE
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2
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3.
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EXPENSES;
INDEMNIFICATION PROCEDURE
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3
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a.
Advancement of Expenses.
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3
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b.
Notice/Cooperation by Indemnitee.
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3
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c.
Notice to Insurers.
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3
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d.
Selection of Counsel.
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4
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e.
Presumption and Burden of Proof.
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4
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4.
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ADDITIONAL
INDEMNIFICATION RIGHTS: NONEXCLUSIVITY
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4
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a.
Scope.
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4
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b.
Nonexclusivity.
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5
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5.
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MUTUAL
ACKNOWLEDGEMENT
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5
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6.
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OFFICER
AND DIRECTOR LIABILITY INSURANCE
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5
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7.
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SEVERABILITY
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6
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8.
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EXCEPTIONS
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6
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a.
Claims Initiated by Indemnitee.
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6
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b.
Lack of Good Faith.
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6
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c.
Insured Claims.
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6
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d.
SOX Forfeitures and Reimbursements.
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7
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e.
Claims Under Section 16(b).
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7
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9.
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CONSTRUCTION
OF CERTAIN PHRASES
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7
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a.
Company.
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7
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b.
Other Phrases.
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7
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10.
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COUNTERPARTS
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8
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11.
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SUCCESSORS
AND ASSIGNS
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8
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12.
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ATTORNEYS’
FEES
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8
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13.
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NOTICE
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8
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14.
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CONSENT
TO JURISDICTION
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8
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15.
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CHOICE
OF LAW
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9
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16.
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ENTIRE
AGREEMENT; MODIFICATION AND WAIVER
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9
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i
This
Indemnification Agreement (“Agreement”) is made as of _________________, by and
between LSI Corporation, a Delaware corporation (the “Company”), and __________
(“Indemnitee”).
WHEREAS,
the Company and
Indemnitee recognize the increasing difficulty in obtaining directors’ and
officers’ liability insurance, 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 officers and directors to expensive litigation risks at
the
same time as the availability and coverage of liability insurance has been
severely limited;
WHEREAS,
Indemnitee does not
regard the current protection available as adequate under the present
circumstances, and Indemnitee and other officers and directors of the Company
may not be willing to continue to serve as officers and directors without
additional protection; and
WHEREAS,
the Company desires
to attract and retain the services of highly qualified individuals, such as
Indemnitee, to serve as officers and directors of the Company and to indemnify
its officers and directors so as to provide them with the maximum protection
permitted by law.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as
follows:
1.
INDEMNIFICATION
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a.
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Third
Party Proceedings.
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The
Company shall indemnify Indemnitee if Indemnitee is, or is threatened to be
made, a party to or a participant in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason
of the fact that Indemnitee is or was a director, officer, employee or agent
of
the Company, or any subsidiary of the Company, or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with such action,
suit or proceeding if Indemnitee acted in good faith and in a manner Indemnitee
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 Indemnitee’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee did
not
act in good faith and in a manner which Indemnitee 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 reasonable cause to believe that Indemnitee’s
conduct was unlawful.
1
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b.
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Proceedings
By or in the Right of the Company.
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The
Company shall indemnify Indemnitee if Indemnitee is, or is threatened to be
made, a party to or a participant in any threatened, pending or completed action
or suit by or in the right of the Company or any subsidiary of the Company
to
procure a judgment in its favor, against expenses (including attorneys’ fees) to
the extent actually and reasonably incurred by Indemnitee in connection with
such action or suit if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable
to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit 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 indemnity for such expenses which the Court of Chancery of the
State
of Delaware or such other court shall deem proper.
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c.
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Mandatory
Payment of Expenses.
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To
the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Subsections (a) and (b) of
this
Section 1 or the defense of any claim, issue or matter therein, Indemnitee
shall
be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee in connection therewith.
2.
AGREEMENT TO SERVE
In
consideration of the protection afforded by this Agreement, if Indemnitee is
a
director of the Company he agrees to serve at least for the balance of the
current term as a director and not to resign voluntarily during such period
without the written consent of a majority of the Board of
Directors. If Indemnitee is an officer of the Company not serving
under an employment contract, he agrees to serve in such capacity at least
for
the balance of the current fiscal year of the Company and not to resign
voluntarily during such period without the written consent of a majority of
the
Board of Directors. Following the applicable period set forth above
Indemnitee agrees to continue to serve in such capacity at the will of the
Company (or under separate agreement, if such agreement exists) 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. Nothing
contained in this Agreement is intended to create in Indemnitee any right to
continued employment.
2
3.
EXPENSES; INDEMNIFICATION PROCEDURE
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a.
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Advancement
of Expenses.
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The
Company shall advance all expenses incurred by Indemnitee in connection with
the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding referenced in Section 1(a) or (b) hereof (but not amounts
actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined
that
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 Indemnitee within twenty (20) days following delivery of a written
request therefor by Indemnitee to the Company. Advances shall be
unsecured and interest free and made without regard to Indemnitee’s ability to
repay such advances.
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b.
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Notice/Cooperation
by Indemnitee.
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Indemnitee
shall give the Company 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 Company shall be directed
to the Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). Notice shall be deemed received
three business days after the date postmarked if sent by domestic certified
or
registered mail, properly addressed; otherwise notice shall be deemed received
when such notice shall actually be received by the Company. The
failure or delay by Indemnitee to notify the Company will not relieve the
Company of any liability which it may have to Indemnitee hereunder or otherwise,
except to the extent that such failure or delay materially prejudices the
Company. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
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c.
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Notice
to Insurers.
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If,
at
the time of the receipt of a notice of a claim pursuant to Section 3(b) hereof,
the Company has director and officer liability 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 respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all
amounts payable as a result of such proceeding in accordance with the terms
of
such policies.
3
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d.
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Selection
of Counsel.
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In
the
event the Company shall be obligated under Section 3(a) hereof to pay the
expenses of any proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, 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 Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (i) Indemnitee shall have the right to employ his counsel in
any
such proceeding at Indemnitee’s expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and 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, then the fees and expenses of Indemnitee’s counsel
shall be at the expense of the Company.
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e.
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Presumption
and Burden of Proof.
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In
making
a determination with respect to Indemnitee’s entitlement to indemnification
hereunder, the Indemnitee shall be presumed, to the fullest extent permitted
by
law, to have acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company and, with respect
to any criminal action or proceeding, to have had no reasonable cause to believe
Indemnitee’s conduct was unlawful. The Company shall, to the fullest
extent permitted by law, have the burden of proof to overcome this presumption
in connection with any determination, or any action or proceeding to determine,
whether Indemnitee is entitled to be indemnified hereunder.
4.
ADDITIONAL INDEMNIFICATION RIGHTS: NONEXCLUSIVITY
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a.
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Scope.
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Notwithstanding
any other provision of this Agreement, the Company hereby agrees to indemnify
the Indemnitee to the fullest extent permitted by law, notwithstanding that
such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company’s Certificate of Incorporation, the Company’s By-laws or
by statute. In the event of any change, after the date of this
Agreement, in any applicable law, statute, or rule which expands the right
of a
Delaware corporation to indemnify a member of its board of directors or an
officer, such changes shall be, ipso facto, within the
purview of Indemnitee’s rights and Company’s obligations, under this
Agreement. In the event of any change in any applicable law, statute
or rule which narrows the right of a Delaware corporation to indemnify a member
of its board of directors or an officer, such changes, to the extent not
otherwise required by such law, statute or rule to be applied to this Agreement
shall have no effect on this Agreement or the parties’ rights and obligations
hereunder.
4
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b.
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Nonexclusivity.
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The
indemnification provided by this Agreement shall not be deemed exclusive of
any
rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its By-laws, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of Delaware,
or otherwise, both as to action in Indemnitee’s official capacity and as to
action in another capacity while holding such office. The
indemnification provided under this Agreement shall continue as to Indemnitee
even though he or she may have ceased to serve in an indemnified capacity at
the
time of any action, suit or other covered proceeding.
5.
MUTUAL ACKNOWLEDGEMENT
Both
the
Company and Indemnitee acknowledge that in certain instances, Federal law or
applicable public policy may prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken or may be required
in the future to undertake with the Securities and Exchange Commission to submit
the question of indemnification to a court in certain circumstances for a
determination of the Company’s right under public policy to indemnify
Indemnitee.
6.
OFFICER AND DIRECTOR LIABILITY INSURANCE
The
Company shall, from time to time, make the good faith determination whether
or
not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Company with coverage for losses from wrongful acts, or
to
ensure the Company’s performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the
costs of obtaining such insurance coverage against the protection afforded
by
such coverage. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors, if Indemnitee is a director; or of
the Company’s officers, if Indemnitee is not a director of the Company but is an
officer, or of the Company’s key employees, if Indemnitee is not an officer or
director but is a key employee. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to
the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusion so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Company.
5
7.
SEVERABILITY
Nothing
in this Agreement is intended to require or shall be construed as requiring
the
Company to do or fail to do any act in violation of applicable
law. The Company’s inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as
provided in this Section 7. If this Agreement or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then
the Company shall nevertheless indemnify Indemnitee to the full extent permitted
by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
8.
EXCEPTIONS
Any
other
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:
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a.
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Claims
Initiated by Indemnitee.
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To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right
to
indemnification under this Agreement or any other statute or law or otherwise
as
required under Section 145 of the Delaware General Corporation law, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors has approved the initiation or bringing
of such suit; or
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b.
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Lack
of Good Faith.
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To
indemnify Indemnitee for any expenses incurred by the Indemnitee with respect
to
any proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith
or was frivolous; or
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c.
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Insured
Claims.
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To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) which have been paid directly to
Indemnitee by an insurance carrier under a policy of officers’ and directors’
liability insurance maintained by the Company; or
6
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d.
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SOX
Forfeitures and Reimbursements.
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To
indemnify Indemnitee for any reimbursement of the Company by Indemnitee of
(i)
any bonus or other incentive-based or equity-based compensation, or any profits
realized by Indemnitee from the sale of the Company’s securities, under Section
304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or (ii) profits arising from the
purchase, sale, or other acquisition or transfer of the Company’s securities in
violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002; or
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e.
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Claims
Under Section 16(b).
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To
indemnify Indemnitee for expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b)
of
the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
9.
CONSTRUCTION OF CERTAIN PHRASES
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a.
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Company.
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For
purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, 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.
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b.
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Other
Phrases.
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For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on Indemnitee with respect to any employer benefit plan; and 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 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.
7
10.
COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
11.
SUCCESSORS AND ASSIGNS
This
Agreement shall be binding upon the Company and its successors and assigns,
and
shall inure to the benefit of Indemnitee and Indemnitee’s estate, heirs, legal
representatives and assigns.
12.
ATTORNEYS’ FEES
(a)
In
the event that any action is instituted by Indemnitee under this Agreement
to
enforce or interpret any of the terms hereof, Indemnitee shall be indemnified
against all court costs and expenses, including reasonable attorneys’ fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in good
faith or were frivolous. (b) In the event of an action instituted by
or in the name of the Company under this Agreement, or to enforce or interpret
any of the terms of this Agreement, Indemnitee shall be indemnified against
all
court costs and expenses, including attorneys’ fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee’s counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action were made
in bad faith or were frivolous. In addition, Indemnitee shall be
entitled to advancement of the amounts in sections (a) and (b) above, in
accordance with the provisions of Section 3(a) of this Agreement.
13.
NOTICE
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressee, on the date of such receipt, or (ii)
if
mailed by domestic certified or registered mail with postage prepaid, on the
third business day after the date postmarked. Addresses for notice to
either party are as shown on the signature page of this Agreement, or a
subsequently modified by written notice.
14.
CONSENT TO JURISDICTION
The
Company and Indemnitee each hereby irrevocably consents to the jurisdiction
of
the courts of the State of Delaware for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be brought only in the
state courts of the State of Delaware.
8
15.
CHOICE OF LAW
This
Agreement shall be governed by and its provisions construed in accordance with
the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within
Delaware.
16.
ENTIRE AGREEMENT; MODIFICATION AND WAIVER
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written or implied, provided, however, that this Agreement
is a supplement to and in furtherance of the Company’s certificate of
incorporation, bylaws and applicable law. No supplement, modification
or amendment to this Agreement shall be binding unless executed in writing
by
the parties thereto. No waiver of any of the provisions of this
Agreement shall constitute or be deemed a waiver of any other provision of
this
Agreement nor shall any waiver constitute a continuing waiver.
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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LSI
CORPORATION
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By:
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[Name]
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[Title]
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Address
for notice:
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________________
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________________
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AGREED
TO
AND ACCEPTED:
INDEMNITEE:
_____________
Address
for notice:
________________
________________
9