EXHIBIT 10.4
Indemnification Agreement
This Agreement, made and entered into this _______ day of __________, 2001
("Agreement"), by and between Mykrolis Corporation, a Delaware corporation
("Company"), and [_____________] ("Indemnitee"):
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself to indemnify, and to advance expenses on behalf of, its
directors and executive officers to the fullest extent permitted by applicable
law so that they will serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve the Company as a
director and/or executive officer and to take on additional service for or on
its behalf on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Services by Indemnitee. Indemnitee agrees to serve as a director and/or
executive officer of the Company. Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law).
2. Indemnification - General. The Company shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this
Agreement and (b) (subject to the provisions of this Agreement) to the
fullest extent permitted by applicable law in effect on the date hereof and
as amended from time to time. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the rights
set forth in the other Sections of this Agreement.
3. Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in
this Section 3 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or a participant
in any threatened, pending or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the Company.
Pursuant to this Section 3, Indemnitee shall be indemnified against all
Expenses, judgments, penalties, fines and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, penalties, fines
and amounts paid in settlement) actually and reasonably incurred by him or
on his behalf in connection with such Proceeding or any claim, issue or
matter therein,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and, with respect to
any criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled
to the rights of indemnification provided in this Section 4 if, by reason
of his Corporate Status, he is, or is threatened to be made, a party to or
a participant in any threatened, pending or completed Proceeding brought by
or in the right of the Company to procure a judgment in its favor. Pursuant
to this Section, Indemnitee shall be indemnified against all Expenses
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses) actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, that
indemnification against such Expenses shall be made in respect of any
claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Company if and only to the extent that
the Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that such
indemnification may be made.
5. Partial Indemnification. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate
Status, a party to (or a participant in) and is successful, on the merits
or otherwise, in defense of any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly successful in defense of
such Proceeding but is successful, on the merits or otherwise, as to 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 him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section
and without limitation, 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. If Indemnitee
is entitled under any provision of this agreement to indemnification by the
Company for some or a portion of the Expenses, judgments, penalties, fines
and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
Expenses, judgments, penalties, fines and amounts paid in settlement)
actually and reasonably incurred by him or on his behalf in connection with
such Proceeding or any claim, issue or matter therein, but not, however,
for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion to which the Indemnitee is entitled.
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6. Indemnification for Additional Expenses.
a. The Company shall indemnify Indemnitee against any and all Expenses
and, if requested by Indemnitee, shall (within seven (7) business
days of such request) advance such Expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or advance payment of Expenses by
the Company under this Agreement or any other agreement or by-law of
the Company now or hereafter in effect; or (ii) recovery under any
directors' and officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be.
b. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith.
7. Advancement of Expenses. The Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding
within seven (7) days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if
it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Notwithstanding the foregoing, the
obligation of the Company to advance Expenses pursuant to this Section 7
shall be subject to the condition that, if, when and to the extent that the
Company determines that Indemnitee would not be permitted to be indemnified
under applicable law, the Company shall be entitled to be reimbursed,
within thirty (30) days of such determination, by Indemnitee (who hereby
agrees to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law,
any determination made by the Company that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any advance
of Expenses until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed).
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8. Procedure for Determination of Entitlement to Indemnification.
a. To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification.
The Secretary of the Company shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
b. Upon written request by Indemnitee for indemnification pursuant to
the first sentence of Section 8(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee's entitlement
thereto shall be made in the specific case: (i) if a Change in
Control (as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or (ii)
if a Change of Control shall not have occurred, (A) by a majority
vote of the Disinterested Directors (as hereinafter defined), even
though less than a quorum of the Board, or (B) if there are no such
Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee or (C) if so directed
by the Board, by the stockholders of the Company; and, if it is so
determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within seven (7) days after such
determination. The Company and the Indemnitee shall each cooperate
with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available
to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification), and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
c. In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 8(b) hereof,
the Independent Counsel shall be selected as provided in this Section
8(c). If a Change of Control shall not have occurred, the Independent
Counsel shall be selected by the Board of Directors, and the Company
shall give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change of Control shall
have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be
made by the Board of Directors, in which event the preceding sentence
shall apply), and Indemnitee
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shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within 10 days after such
written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected
does not meet the requirements of "Independent Counsel" as defined in
Section 17 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection
is without merit. If, within 20 days after submission by Indemnitee
of a written request for indemnification pursuant to Section 8(a)
hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Court
of Chancery of the State of Delaware for resolution of any objection
which shall have been made by the Company or Indemnitee to the
other's selection of Independent Counsel and/or for the appointment
as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with
respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 8(b) hereof.
The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 8(b) hereof, and the
Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 8(c), regardless of the manner in which
such Independent Counsel was selected or appointed, and if such
Independent Counsel was selected or appointed by the Indemnitee or
the Court, shall provide such Independent Counsel with such retainer
as may requested by such counsel. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 10(a)(iii) of
this Agreement, Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
d. The Company shall not be required to obtain the consent of the
Indemnitee to the settlement of any Proceeding which the Company has
undertaken to defend if the Company assumes full and sole
responsibility for such settlement and the settlement grants the
Indemnitee a complete and unqualified release in respect of the
potential liability. The Company shall not be liable for any amount
paid by the Indemnitee in settlement of any Proceeding that is not
defended by the Company, unless the Company has consented to such
settlement, which consent shall not be unreasonably withheld.
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9. Presumptions and Effect of Certain Proceedings.
a. In making a determination with respect to entitlement to
indemnification or the advancement of expenses hereunder, the person
or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification or advancement of expenses
under this Agreement if Indemnitee has submitted a request for
indemnification or the advancement of expenses in accordance with
Section 8(a) of this Agreement, and the Company shall have the burden
of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to
that presumption. Neither the failure of the Company (including its
board of directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Company (including its board of directors
or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable
standard of conduct.
b. If the person, persons or entity empowered or selected under Section
8 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty (60)
days after receipt by the Company of the request therefor, the
requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with
the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such
60-day period may be extended for a reasonable time, not to exceed an
additional thirty (30) days, if the person, persons or entity making
the determination with respect to entitlement to indemnification in
good faith requires such additional time for the obtaining or
evaluating of documentation and/or information relating thereto; and
provided, further, that the foregoing provisions of this Section 9(b)
shall not apply (i) if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section
8(b) of this Agreement and if (A) within fifteen (15) days after
receipt by the Company of the request for such determination the
Board of Directors has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to
be held within seventy-five (75) days after such receipt and such
determination is made thereat, or (B) a special meeting of
stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held
for such purpose within sixty (60) days after having been so called
and such determination is made thereat, or (ii) if the determination
of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 8(b) of this Agreement.
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c. The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
d. Reliance as Safe Harbor. For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if
Indemnitee's action is based on the records or books of account of
the Company or relevant enterprise, including financial statements,
or on information supplied to Indemnitee by the officers of the
Company or relevant enterprise in the course of their duties, or on
the advice of legal counsel for the Company or relevant enterprise or
on information or records given in reports made to the Company or
relevant enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the
Company or relevant enterprise. The provisions of this Section 9(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
e. Actions of Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Company or
relevant enterprise shall not be imputed to Indemnitee for purposes
of determining the right to indemnification under this Agreement.
10. Remedies of Indemnitee.
a. In the event that (i) a determination is made pursuant to Section 8
of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 7 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 8(b) of this Agreement within 90 days after receipt by the
Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5 or 6 of this
Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification is not
made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to an adjudication by the Court of Chancery of the State of
Delaware, or any other court of competent jurisdiction, of his
entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association.
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b. In the event that a determination shall have been made pursuant to
Section 8(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 10 shall be conducted in all respects as a
de novo trial, or arbitration, on the merits and Indemnitee shall not
be prejudiced by reason of that adverse determination. If a Change of
Control shall have occurred, in any judicial proceeding or
arbitration commenced pursuant to this Section 10, the Company shall
have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
c. If a determination shall have been made pursuant to Section 8(b) of
this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 10,
absent (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee's statement
not materially misleading in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.
d. In the event that Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any and all expenses (of the
types described in the definition of Expenses in Section 17 of this
Agreement) actually and reasonably incurred by him in such judicial
adjudication or arbitration, but only if he prevails therein. If it
shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication
or arbitration shall be appropriately prorated. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested
by Indemnitee, shall (within ten (10) days after receipt by the
Company of a written request therefor) advance such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any
action brought by Indemnitee for indemnification or advance of
Expenses from the Company under this Agreement or under any
directors' or officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of
Expenses or insurance recovery, as the case may be.
e. The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that
the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or
before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
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11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
a. The rights of indemnification and to receive advancement of Expenses
as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under
applicable law, the Certificate of Incorporation, the By-Laws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee
under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in the General
Corporation Law of the State of Delaware, whether by statute or
judicial decision, permits greater indemnification or advancement of
Expenses than would be afforded currently under the Company's By-Laws
and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
b. To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
employees or agents of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under
such policy or policies.
c. In the event of any payment under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including execution
of such documents as are necessary to enable the Company to bring
suit or enforce such rights.
d. The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
e. The Company's obligation to indemnify or advance expenses hereunder
to Indemnitee who is or was serving at the request of the Company as
a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise shall be reduced by any amount
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Indemnitee has actually received as indemnification or advancement of
expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
12. Duration of Agreement.
a. This Agreement shall continue until and terminate upon the later of:
(i) 10 years after the date that Indemnitee shall have ceased to
serve as a director and/or executive officer of the Company (or of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the
request of the Company); or (ii) the final termination of any
Proceeding then pending in respect of which Indemnitee is granted
rights of indemnification or advancement of expenses hereunder and of
any proceeding commenced by Indemnitee pursuant to Section 10 of this
Agreement relating thereto.
b. This Agreement shall not be deemed an employment contract between the
Company (or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee's employment with the
Company (or any of its subsidiaries), if any, is at will, and the
Indemnitee may be discharged at any time for any reason, with or
without cause, except as may be otherwise provided in any written
employment contract between Indemnitee and the Company (or any of its
subsidiaries), other applicable formal severance policies duly
adopted by the Board, or, with respect to service as a director or
officer of the Company, by the Company's Certificate of
Incorporation, By-laws, and the General Corporation Law of the State
of Delaware. The foregoing notwithstanding, this Agreement shall
continue in force as provided above after Indemnitee has ceased to
serve as a director and/or executive officer of the Company.
c. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.
13. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any Section
of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested thereby.
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14. Exception to Right of Indemnification or Advancement of Expenses. Except as
provided in Section 6(a) of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding brought by Indemnitee (other than a
Proceeding by Indemnitee to enforce his rights under this Agreement), or
any claim therein, unless the bringing of such Proceeding or making of such
claim shall have been approved by the Board of Directors.
15. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement.
16. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
17. Definitions. For purposes of this Agreement:
a. "Change in Control" shall have the meaning set forth on Exhibit A.
b. "Corporate Status" describes the status of a person who is or was a
director, officer, employee, fiduciary or agent of the Company or of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving
at the request of the Company.
c. "Disinterested Director" means a director of the company who is not
and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
d. "Effective Date" means [ ], 2001.
e. "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees 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.
f. "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to
either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any
person who,
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under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either
the Company or Indemnitee in an action to determine Indemnitee's
rights under this Agreement. The Company agrees to pay the reasonable
fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
g. "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the
right of the Corporation or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is, may be
or will be involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director or officer of the Company, by
reason of any action taken by him or of any inaction on his part
while acting as director or officer of the Company, or by reason of
the fact that he 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; in each case
whether or not he is acting or serving in any such capacity at the
time any liability or expense is incurred for which indemnification
or advancement of expenses can be provided under this Agreement;
except one (i) initiated by an Indemnitee pursuant to Section 10 of
this Agreement to enforce his right under this Agreement or (ii)
pending on or before the Effective Date.
18. Enforcement.
a. The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director and/or officer of
the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director and/or officer of the
Company.
b. 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 and implied,
between the parties hereto with respect to the subject matter hereof.
19. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
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20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the
Indemnitee under this Agreement or otherwise.
21. Notices. All notices, requests, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or
other communication shall have been direct, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the
date on which it is so mailed:
a. If to Indemnitee to:
[INDEMNITEE'S NAME]
[ADDRESS]
b. If to the Company to:
Patriots Park
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
22. Contribution. To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid
in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s)
giving cause to such Proceeding; and/or (ii) the relative fault of the
Company (and its directors, officers, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
23. Governing Law; Submission to Jurisdiction; Appointment of Agent for Service
of Process. This Agreement and the legal relations among the parties shall
be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules. Except
with respect to any arbitration commenced by Indemnitee pursuant to Section
10(a) of this Agreement, the Company
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and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of Delaware (the
"Delaware Court"), and not in any other state or federal court in the
United States of America or any court in any other country, (ii) consent to
submit to the exclusive jurisdiction of the Delaware Court for purposes of
any action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not a resident of the
State of Delaware, irrevocably [_______________] as its agent in the State
of Delaware for acceptance of legal process in connection with any such
action or proceeding against such party with the same legal force and
validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court, and (v) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or otherwise
inconvenient forum.
24. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST: Mykrolis Corporation
_______________________________ By:____________________________
Name: Name:
Title:
ATTEST: INDEMNITEE
_______________________________ _____________________________
Name: Name:
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EXHIBIT A
Change of Control. For the purposes of this Agreement, a "Change of
Control" means:
i. The acquisition by any person, corporation, partnership, limited
liability company or other entity (a "Person", which term shall
include a group within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) of ultimate beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly of 30% or more of either (i)
the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any such acquisition directly from the
Company, except for acquisition of securities upon conversion of
other securities of the Company (ii) any such acquisition by the
Company, (iii) any such acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any such acquisition by
any corporation pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of subsection (c) of this Exhibit A; or
ii. Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election, by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
iii. Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the
Company in one or a series of transactions (a "Business
Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company
15
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, immediately following such
Business Combination more than 50% of, respectively, the outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns
the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock and
outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
ultimately beneficially owns, directly or indirectly, 30% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to
the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
iv. Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
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