|
(a) “Change in Control” shall mean a change in
control of the Company of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A of
Regulation 14A (or in response to any similar item on any
similar or successor schedule or form) promulgated under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the
“Act”), whether or not the Company is then subject to
such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to
have occurred (irrespective of the applicability of the initial
clause of this definition) if (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Act,
but excluding any trustee or other fiduciary holding securities
pursuant to an employee benefit or welfare plan or employee stock
plan of the Company or any subsidiary of the Company, or any
entity organized, appointed, established or holding securities of
the Company with voting power for or pursuant to the terms of
any such plan) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company’s then
outstanding securities without the prior approval of at least
two-thirds of the Continuing Directors (as defined below) in
office immediately prior to such person’s attaining such
interest; (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which Continuing Directors in
office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors of the Company (or
any successor entity) thereafter; or (iii) during any
period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of the Company
(including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such
period) (such directors being referred to herein as
“Continuing Directors”) cease for any reason to
constitute at least a majority of the Board of Directors of the
Company.
|
|
| |
(b) “Disinterested Director” with respect to any
request by the Indemnitee for indemnification or advancement of
expenses hereunder shall mean a director of the Company who
neither is nor was a party to the Proceeding (as defined below)
in respect of which indemnification or advancement is being
sought by the Indemnitee.
| |
(c) The term “Expenses” shall mean, without
limitation, expenses of Proceedings, including attorneys’
fees, disbursements and retainers, accounting and witness fees,
expenses related to the preparation or service as a witness,
travel and deposition costs, expenses of investigations, judicial
or administrative proceedings and appeals, amounts paid in
settlement of a Proceeding by or on behalf of the Indemnitee,
costs of attachment or similar bonds, any expenses of attempting
to establish or establishing a right to indemnification or
advancement of expenses, under this Agreement, the Company’s
Certificate of Incorporation or Bylaws, applicable law or
otherwise, and reasonable compensation for time spent by the
Indemnitee in connection with the investigation, defense or
appeal of a Proceeding or action for indemnification for which
the Indemnitee is not otherwise compensated by the Company or any
third party. The term “Expenses” shall not include the
amount of judgments, fines, interest or penalties, or excise
taxes assessed with respect to any employee benefit or welfare
plan, which are actually levied against or sustained by the
Indemnitee to the extent sustained after final adjudication.
| |
(d) The term “Independent Legal Counsel” shall
mean any firm of attorneys selected by lot from a list consisting
of firms which meet minimum size criteria and other reasonable
criteria established by the Board of Directors of the Company, so
long as such firm has not represented the Company, the
Indemnitee, any entity controlled by the Indemnitee, or any party
adverse to the Company, within the preceding five years.
Notwithstanding the foregoing, the term “Independent Legal
Counsel” shall not include any person who, under applicable
standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee’s right
to indemnification or advancement of expenses under this
Agreement, the Company’s Certificate of Incorporation or
Bylaws, applicable law or otherwise.
| |
(e) The term “Proceeding” shall mean any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, or any other proceeding
(including, without limitation, an appeal therefrom), formal or
informal, whether brought in the name of the Company or
otherwise, whether of a civil, criminal, administrative or
investigative nature, and whether by, in or involving a court or
an administrative, other governmental or private entity or body
(including, without limitation, an investigation by the Company
or its Board of Directors), by reason of (i) the fact that
the Indemnitee is or was an officer of the Company, or is or was
serving at the request of the Company as an agent of another
enterprise, whether or not the Indemnitee is serving in such
capacity at the time any liability or expense is incurred for
which indemnification or reimbursement is to be provided under
this Agreement, (ii) any actual or alleged act or omission or
neglect or breach of duty, including, without limitation, any
actual or alleged error or misstatement or misleading statement,
which the Indemnitee commits or suffers while acting in any such
capacity, or (iii) the Indemnitee attempting to establish or
establishing a right to indemnification or advancement of
expenses pursuant to this Agreement, the Company’s
Certificate of Incorporation or Bylaws, applicable law or
otherwise.
| |
(f) The phrase “serving at the request of the Company
as an agent of another enterprise” or any similar
terminology shall mean, unless the context otherwise requires,
(i) serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, limited liability company, trust, employee benefit
or welfare plan or other enterprise, foreign or domestic, and
(ii) serving as a director, officer, employee or agent of a
corporation which was a predecessor corporation of the Company or
of another enterprise at the request of such predecessor
corporation. The phrase “serving at the request of the
Company” shall include, without limitation, any service as
an officer of the Company which imposes duties on, or involves
services by, such officer with respect to the Company or any of
the Company’s subsidiaries, affiliates, employee benefit or
welfare plans, such plan’s participants or beneficiaries or
any other enterprise, foreign or domestic. In the event that the
Indemnitee shall be a director, officer, employee or agent of
another corporation, partnership, joint venture, limited
liability company, trust, employee benefit or welfare plan or
other enterprise, foreign or domestic, 40% or
2
|
|
| |
more of the common stock, combined voting power or total equity
interest of which is owned by the Company or any subsidiary or
affiliate thereof, then it shall be presumed conclusively that
the Indemnitee is so acting at the request of the Company.
2. Services by the Indemnitee. The Indemnitee agrees to
continue to serve as an officer of the Company at the will of the
Company for so long as the Indemnitee is duly elected and
qualified, appointed or until such time as the Indemnitee tenders
a resignation in writing or is removed as an officer;
provided, however, that the Indemnitee may at any time and
for any reason resign from such position (subject to any other
contractual obligation or other obligation imposed by operation
of law).
3. Proceeding Other Than a Proceeding By or In the Right of
the Company. The Company shall indemnify the Indemnitee if
the Indemnitee is a party to or threatened to be made a party to
or is otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Company to procure a
judgment in its favor), by reason of the fact that the Indemnitee
is or was an officer of the Company, or is or was serving at the
request of the Company as an agent of another enterprise,
against all Expenses, judgments, fines, interest or penalties,
and excise taxes assessed with respect to any employee benefit or
welfare plan, which are actually and reasonably incurred by the
Indemnitee in connection with such a Proceeding, to the fullest
extent permitted by applicable law; provided, however,
that any settlement of a Proceeding must be approved in advance
in writing by the Company.
4. Proceedings By or In the Right of the Company. The
Company shall indemnify the Indemnitee if the Indemnitee is a
party to or threatened to be made a party to or is otherwise
involved in any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the
Indemnitee is or was an officer of the Company, or is or was
serving at the request of the Company as an agent of another
enterprise, against all Expenses, judgments, fines, interest or
penalties, and excise taxes assessed with respect to any employee
benefit or welfare plan, which are actually and reasonably
incurred by the Indemnitee in connection with the defense or
settlement of such a Proceeding, to the fullest extent permitted
by applicable law.
5. Indemnification for Costs, Charges and Expenses of Witness
or Successful Party. Notwithstanding any other provision of
this Agreement (except as set forth in subparagraph 9(a) hereof),
and without a requirement for determination as required by
Paragraph 8 hereof, to the extent that the Indemnitee
(a) has prepared to serve or has served as a witness in any
Proceeding in any way relating to the Company or any of the
Company’s subsidiaries, affiliates, employee benefit or
welfare plans, such plan’s participants or beneficiaries or
any other enterprise, foreign or domestic, or anything done or
not done by the Indemnitee as an officer of the Company, as a
director, officer, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust,
employee benefit or welfare plan or other enterprise, foreign or
domestic, or as a director, officer, employee or agent of a
corporation which was a predecessor corporation of the Company or
of another enterprise, at the request of such predecessor
corporation, or (b) has been successful in defense of any
Proceeding or in defense of any claim, issue or matter therein,
on the merits or otherwise, including the dismissal of a
Proceeding without prejudice or the settlement of a Proceeding
without an admission of liability, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by the Indemnitee in connection therewith to the fullest extent
permitted by applicable law.
6. Partial Indemnification. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for a portion of the Expenses, judgments, fines, interest
or penalties, or excise taxes assessed with respect to any
employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in the investigation,
defense, appeal or settlement of any Proceeding, but not,
however, for the total amount of the Indemnitee’s Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, then the
Company shall nevertheless indemnify the Indemnitee for the
portion of such Expenses, judgments, fines, interest penalties or
excise taxes to which the Indemnitee is entitled.
7. Advancement of Expenses. The Expenses incurred by the
Indemnitee in any Proceeding shall be paid promptly by the
Company in advance of the final disposition of the Proceeding at
the written request of the Indemnitee to the fullest extent
permitted by applicable law; provided, however, that the
Indemnitee shall
3
set forth in such request reasonable evidence that such Expenses
have been incurred by the Indemnitee in connection with such
Proceeding, a statement that such Expenses do not relate to any
matter described in subparagraph 9(a) of this Agreement, and an
undertaking in writing to repay any advances if it is ultimately
determined as provided in subparagraph 8(b) of this Agreement
that the Indemnitee is not entitled to indemnification under this
Agreement.
8. Indemnification Procedure; Determination of Right to
Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of
the commencement of any Proceeding, the Indemnitee shall, if a
claim for indemnification or advancement of Expenses in respect
thereof is to be made against the Company under this Agreement,
notify the Company of the commencement thereof in writing. The
omission to so notify the Company will not relieve the Company
from any liability which the Company may have to the Indemnitee
under this Agreement unless the Company shall have lost
significant substantive or procedural rights with respect to the
defense of any Proceeding as a result of such omission to so
notify.
(b) The Indemnitee shall be conclusively presumed to have
met the relevant standards of conduct, if any, as defined by
applicable law, for indemnification pursuant to this Agreement
and shall be absolutely entitled to such indemnification, unless
a determination by clear and convincing evidence is made that the
Indemnitee has not met such standards by (i) the Board of
Directors by a majority vote of a quorum thereof consisting of
Disinterested Directors, (ii) the stockholders of the
Company by majority vote of a quorum thereof consisting of
stockholders who are not parties to the Proceeding due to which a
claim for indemnification is made under this Agreement, (iii)
Independent Legal Counsel as set forth in a written opinion (it
being understood that such Independent Legal Counsel shall make
such determination only if the quorum of Disinterested Directors
referred to in clause (i) of this subparagraph 8(b) is not
obtainable or if the Board of Directors of the Company by a
majority vote of a quorum thereof consisting of Disinterested
Directors so directs), or (iv) a court of competent
jurisdiction; provided, however, that if a Change of
Control shall have occurred and the Indemnitee so requests in
writing, such determination shall be made only by a court of
competent jurisdiction.
(c) If a claim for indemnification or advancement of
Expenses under this Agreement is not paid by the Company within
30 days after receipt by the Company of written notice
thereof, the rights provided by this Agreement shall be
enforceable by the Indemnitee in any court of competent
jurisdiction. Such judicial proceeding shall be made de novo
. The burden of proving by clear and convincing evidence that
indemnification or advances are not appropriate shall be on the
Company. Neither the failure of the directors or stockholders of
the Company or Independent Legal Counsel to have made a
determination prior to the commencement of such action that
indemnification or advancement of Expenses is proper in the
circumstances because the Indemnitee has met the applicable
standard of conduct, if any, nor an actual determination by the
directors or stockholders of the Company or Independent Legal
Counsel that the Indemnitee has not met the applicable standard
of conduct shall be a defense to an action by the Indemnitee or
create a presumption for the purpose of such an action that the
Indemnitee has not met the applicable standard of conduct. The
termination of any Proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself (i) create a presumption that the
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in the best interests of the Company
and/or its stockholders, and, with respect to any criminal
Proceeding, that the Indemnitee had reasonable cause to believe
that his conduct was unlawful or (ii) otherwise adversely
affect the rights of the Indemnitee to indemnification or
advancement of Expenses under this Agreement, except as may be
provided herein. The Company shall not oppose the
Indemnitee’s right or entitlement to indemnification or
advancement of Expenses in any such judicial proceeding or appeal
therefrom. The Company further agrees to stipulate in any such
judicial proceeding that the Company is bound by all the
provisions of this Agreement and is precluded from making any
assertion to the contrary.
(d) If a court of competent jurisdiction shall determine
that the Indemnitee is entitled to any indemnification or
advancement of Expenses hereunder, the Company shall pay all
Expenses actually and reasonably incurred by the Indemnitee in
connection with such adjudication (including, but not limited to,
any appellate proceedings). The Indemnitee’s Expenses
incurred in connection with any Proceeding concerning
4
the Indemnitee’s right to indemnification or advancement of
Expenses in whole or in part pursuant to this Agreement shall
also be indemnified by the Company, regardless of the outcome of
such a Proceeding, to the fullest extent permitted by applicable
law and the Company’s Certificate of Incorporation, as
amended.
(e) With respect to any Proceeding for which
indemnification or advancement of Expenses is requested, the
Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent
that it may wish, the Company may assume the defense thereof,
with counsel reasonably satisfactory to the Indemnitee. After
notice from the Company to the Indemnitee of its election to
assume the defense of a Proceeding, the Company will not be
liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the
defense thereof, other than as provided below. The Company shall
not settle any Proceeding in any manner which would impose any
penalty or limitation on the Indemnitee without the
Indemnitee’s written consent. The Indemnitee shall have the
right to employ his own counsel in any Proceeding, but the fees
and expenses of such counsel incurred after notice from the
Company of its assumption of the defense of the Proceeding shall
be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized by
the Company, (ii) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of a
Proceeding, or (iii) the Company shall not in fact have
employed counsel to assume the defense of a proceeding, in each
of which cases the fees and expenses of the Indemnitee’s
counsel shall be advanced by the Company. The Company shall not
be entitled to assume the defense of any Proceeding brought by or
on behalf of the Company or as to which the Indemnitee has
concluded that there may be a conflict of interest between the
Company and the Indemnitee.
9. Limitations on Indemnification. No payments
pursuant to this Agreement shall be made by the Company:
|
|
| |
(a) To indemnify or advance funds to the Indemnitee for
Expenses with respect to (i) Proceedings initiated or
brought voluntarily by the 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 applicable
law or (ii) Expenses incurred by the Indemnitee in
connection with preparing to serve or serving, prior to a Change
in Control, as a witness in cooperation with any party or entity
who or which has threatened or commenced any action or proceeding
against the Company, or any director, officer, employee,
trustee, agent, representative, subsidiary, parent corporation or
affiliate of the Company, but such indemnification or
advancement of Expenses in each such case may be provided by the
Company if the Board of Directors finds it to be appropriate;
| |
(b) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, and
sustained in any Proceeding for which payment is actually made to
the Indemnitee under a valid and collectible insurance policy,
except in respect of any excess beyond the amount of payment
under such insurance;
| |
(c) To indemnify the Indemnitee for any Expenses,
judgments, fines, expenses or penalties sustained in any
Proceeding for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company pursuant to
the provisions of Section 16(b) of the Act or similar
provisions of any federal, state or local statute or regulation;
| |
(d) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, for which
the Indemnitee is indemnified by the Company otherwise than
pursuant to this Agreement;
| |
(e) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, on account
of the Indemnitee’s conduct if such conduct shall be
finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct, including, without limitation,
breach of the duty of loyalty; or
| |
(f) If a court of competent jurisdiction finally determines
that any indemnification hereunder is unlawful.
5
10. Continuation of Indemnification. All agreements
and obligations of the Company contained herein shall continue
during the period that the Indemnitee is an officer of the
Company (or is or was serving at the request of the Company as an
agent of another enterprise, foreign or domestic) and shall
continue thereafter so long as the Indemnitee shall be subject to
any possible Proceeding by reason of the fact that the
Indemnitee was an officer of the Company or serving in any other
capacity referred to in this Paragraph 10.
11. Indemnification Hereunder Not Exclusive. The
indemnification provided by this Agreement shall not be deemed to
be exclusive of any other rights to which the Indemnitee may be
entitled under the Company’s Certificate of Incorporation,
as amended, the Company’s Bylaws, as amended, any agreement,
vote of stockholders or vote of Disinterested Directors,
provisions of applicable law, or otherwise, both as to action or
omission in the Indemnitee’s official capacity and as to
action or omission in another capacity on behalf of the Company
while holding such office.
12. Extension of Indemnification Rights to Indemnitee’s
Associates. If the Indemnitee is a party to or threatened to
be made a party to or is otherwise involved in any Proceeding by
reason of the fact that the Indemnitee is or was an officer of
the Company, and if any Associate of the “Indemnitee”
(as defined in Rule 12b-2 under the Act) is also involved in
such Proceeding primarily as a result of actions taken or
omitted by the Indemnitee as an officer of the Company or while
serving at the request of the Company as an agent of another
enterprise, foreign or domestic, such Associate of the Indemnitee
shall also be entitled to indemnification under this Agreement
in the same manner as the Indemnitee, but only to the extent that
the claims against such Associate are based upon or directly
attributable to actions taken or omitted by the Indemnitee.
13. Successors and Assigns.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Indemnitee and the Indemnitee’s
heirs, executors, administrators and assigns, whether or not the
Indemnitee has ceased to be a director and/or officer, and the
Company and its successors and assigns. Upon the sale of all or
substantially all of the business, assets or capital stock of the
Company to, or upon the merger of the Company into or with, any
corporation, partnership, joint venture, trust or other person,
this Agreement shall inure to the benefit of and be binding upon
both the Indemnitee and such purchaser or successor person.
Subject to the foregoing, this Agreement may not be assigned by
either party without the prior written consent of the other party
hereto.
(b) If the Indemnitee is deceased and is entitled to
indemnification under any provision of this Agreement, the
Company shall indemnify the Indemnitee’s estate and the
Indemnitee’s spouse, heirs, executors, administrators and
assigns against, and the Company shall, and does hereby agree to
assume, any and all Expenses actually and reasonably incurred by
or for the Indemnitee or the Indemnitee’s estate, in
connection with the investigation, defense, appeal or settlement
of any Proceeding. Further, when requested in writing by the
spouse of the Indemnitee, and/or the Indemnitee’s heirs,
executors, administrators and assigns, the Company shall provide
appropriate evidence of the Company’s agreement set out
herein to indemnify the Indemnitee against and to itself assume
such Expenses.
14. Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee, who
shall execute all documents required and shall do all acts that
may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
15. Severability. Each and every paragraph, sentence, term
and provision of this Agreement is separate and distinct so that
if any paragraph, sentence, term or provision thereof shall be
held to be invalid, unlawful or unenforceable for any reason,
such invalidity, unlawfulness or unenforceability shall not
affect the validity, unlawfulness or enforceability of any other
paragraph, sentence, term or provision hereof. To the extent
required, any paragraph, sentence, term or provision of this
Agreement may be modified by a court of competent jurisdiction to
preserve its validity and to provide the Indemnitee with the
broadest possible indemnification permitted under applicable law.
16. Savings Clause. If this Agreement or any paragraph,
sentence, term or provision hereof is invalidated on any ground
by any court of competent jurisdiction, the Company shall
nevertheless indemnify the Indemnitee as to any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect
6
to any employee benefit or welfare plan, which are incurred with
respect to any Proceeding to the fullest extent permitted by any
(a) applicable paragraph, sentence, term or provision of
this Agreement that has not been invalidated or
(b) applicable provision of Delaware law.
17. Interpretation; Governing Law. This Agreement shall be
construed as a whole and in accordance with its fair meaning.
Headings are for convenience only and shall not be used in
construing meaning. This Agreement shall be governed and
interpreted in accordance with the laws of the State of Delaware
without regard to the conflict of laws principles thereof.
18. Amendments. No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective
unless in writing signed by the party against whom enforcement is
sought. The indemnification rights afforded to the Indemnitee
hereby are contract rights and may not be diminished, eliminated
or otherwise affected by amendments to the Certificate of
Incorporation, Bylaws or by other agreements, including
directors’ and officers’ liability insurance policies,
of the Company.
19. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more
counterparts have been signed by each party and delivered to the
other.
20. Notices. Any notice required to be given under this
Agreement shall be directed to Applied Materials, Inc., ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ M/S 2064, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President, Legal Affairs and Intellectual
Property, and to the Indemnitee at Applied Materials, Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ M/S 2064, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either shall designate to the other
in writing.
IN WITNESS WHEREOF, the parties have executed this
Indemnification Agreement as of the date first written above.
|
|
| |
INDEMNITEE
| |
_________________________________________
Name:
|
APPLIED MATERIALS, INC.
By:
|
|
|
| |
_______________________________________
Name:
Title:
7
| | | | | |