1
EXHIBIT 10.29
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the _____ day of __________, 19___, by and
between Dallas Semiconductor Corporation, a Delaware corporation (the
"Company"), and ________________________________________, a director and/or
officer of the Company ("Indemnitee").
WHEREAS, the Company's Certificate of Incorporation and By-Laws provide
for the indemnification of the directors and officers of the Company to the
maximum extent authorized by Delaware law; and
WHEREAS, Delaware law provides that indemnification under such statutes
shall not be deemed exclusive and thereby contemplates that contracts may be
entered into between the Company and its officers and directors with respect to
indemnification of such persons; and
WHEREAS, recent developments with respect to the substantial increase in
litigation subjecting officers and directors to litigation risks and liabilities
have indicated that it would be prudent to support and augment the protection
afforded the Company's officers and directors in this regard; and
WHEREAS, Indemnitee and other officers and directors may not be willing
to serve as such without adequate protection and the Company desires to attach
and retain the services of highly qualified individuals, such as Indemnitee, to
serve as an officer and/or director of the Company and to indemnify its officers
and directors so as to provide them with the maximum protection permitted by law
as an inducement to their continued service to the Company.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification in General. The Company shall indemnify and hold
harmless Indemnitee to the fullest extent permitted or authorized by Applicable
Law. For purposes hereof the term "Applicable Law" shall mean Section 145 of the
General Corporation Law of the State of Delaware as in effect on the date hereof
and as hereafter amended (but in the case of such amendment, only to the extent
such amendment permits the Company to provide broader indemnification rights
than permitted prior to such amendment).
2. Additional Indemnity. Subject only to the exclusions set forth in
Section 3 hereof, the Company shall further indemnify and hold harmless
Indemnitee:
(a) Against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by Indemnitee in connection with any threatened, pending or
completed action, suit, or proceeding, whether formal or informal, or
civil, criminal, administrative, legislative, arbitrative or
investigative (including without limitation any action by or in the
right of the Company) (hereinafter a "Proceeding") to which Indemnitee
is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Indemnitee is, was or at any time
becomes a director, officer
2
or agent of the Company, or is or was serving or at any time serves at
the request of the Company (which request need not be in writing) or on
behalf of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise (hereinafter an "Enterprise"); and
(b) Otherwise to the fullest extent as may be contractually
provided to Indemnitee by the Company under Applicable Law consistent
with any public policy limitations applicable thereto.
3. Limitations on Additional Indemnity. No indemnity pursuant to Section
2 hereof shall be paid by the Company:
(a) for amounts indemnified by the Company other than pursuant
to Section 2 of this Agreement;
(b) for amounts, if any, paid pursuant to any policies of
directors and officers liability insurance maintained by the Company for
the benefit of Indemnitee;
(c) with respect to remuneration paid to Indemnitee if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(d) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase and sale
by Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or any similar provision of federal, state or local statutory
law;
(e) on account of Indemnitee's conduct which is finally adjudged
to have been knowingly fraudulent, deliberately dishonest or willful
misconduct; or
(f) if a final adjudication by a court having jurisdiction in
the matter shall determine that such indemnification is not lawful.
4, Notification and Defense of Claims. Promptly after the receipt by
Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if
a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement of such Proceeding; provided
however that the omission to so notify the Company will not relieve the Company
from any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any such Proceeding as to which Indemnitee notifies
the Company of the commencement thereof:
(a) The Company shall be entitled to participate therein at its
expense; and
(b) Except as otherwise provided herein, to the extent it may
elect to do so, the Company (jointly with any other indemnifying party
similarly notified) will be entitled to
2
3
assume the defense thereof, with counsel of its own selection reasonably
satisfactory to Indemnitee. After notice from the Company to Indemnitee
of its election to assume the defense thereof, Company will not be
liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the
defense of such Proceeding other than as otherwise provided below.
Indemnitee shall have the right to employ separate counsel in such
Proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense shall be at the
expense of the Indemnitee unless (i) the Company has authorized
Indemnitee to employ separate counsel and has agreed to assume the
reasonable fees and expenses of such counsel; (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between
the Company and Indemnitee in the conduct of the defense of such
Proceeding; or (iii) the Company shall not in fact have employed counsel
to assume the defense of such Proceeding, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of 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
Indemnitee shall have made the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any
Proceedings or claims effected without its prior written consent. The
Company shall not settle any Proceeding or claim in any manner which
might impose any penalty or limitation on Indemnitee without
Indemnitee's prior written consent. Neither the Company nor Indemnitee
will unreasonably withhold their consent to any proposed settlement.
5. Payment in Advance. The expenses (including attorneys' fees) incurred
by Indemnitee in defending any Proceeding shall be advanced by the Company at
the request of the Indemnitee. Any judgments, fines or amounts to be paid in
settlement shall also be advanced by the Company to Indemnitee upon request. If
it shall ultimately be determined that Indemnitee was not entitled to be
indemnified, or was not entitled to be fully indemnified, Indemnitee shall repay
to the Company all amounts advanced, or the appropriate portion thereof, so
advanced.
6. Right of Indemnitee to Bring Suit. If a claim for indemnification or
a claim for an advance under this Agreement is not paid in full by the Company
within 90 or 15 days, respectively, after the Company has received a written
claim therefor by Indemnitee, Indemnitee may bring suit against the Company to
recover the unpaid amount of the claim. If Indemnitee is successful in whole or
in part in such suit, Indemnitee shall also be paid the expense of prosecuting
such claim (including without limitation reasonable attorneys' fees).
7. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer or agent of the Company (or is serving at the request of the
Company or on behalf of the Company, as a director, officer, employee or agent
of another Enterprise) and shall continue thereafter so long as Indemnitee shall
be subject to any possible Proceeding or claim by reason of the fact that
Indemnitee was a director, officer or agent of the Company or serving in any
other capacity referred to herein.
3
4
8. Nonexclusivity. The indemnification and other rights provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may be entitled under any provision of statutory or common law, the Company's
Certificate of Incorporation, any Company By-Law, other agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
Indemnitee's official capacity and as to action in another capacity while
occupying any of the positions or having any of the relationships referred to in
this Agreement, and shall continue after Indemnitee has ceased to occupy such
position or have such relationship.
9. Severability. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable (a) the validity, legality and enforceability
of the remaining provisions of this Agreement shall not be in any way affected
or impaired thereby, and (b) to the fullest extent possible, the provisions of
this Agreement shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable. Each section of this
Agreement is a separate and independent portion of this Agreement. If the
indemnification to which Indemnitee is entitled as respects any aspect of any
claim varies between two or more sections of this Agreement, that section
providing the most comprehensive indemnification shall apply.
10. Modification and Waiver. No supplement or amendment of this
Agreement shall be binding unless executed in writing by both parties hereto. No
waiver of any of the provisions of this Agreement shall be binding unless
executed in writing by the person making the waiver nor shall such waiver
constitute a continuing waiver.
11. Notices. All notices, requests, demands and 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 directed or if (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(i) If to Indemnitee, to
or to such other address as may be furnished to the Company by
Indemnitee;
(ii) If to the Company, to
4
5
Dallas Semiconductor Corporation
4401 South Beltwood Parkway
Dallas, Texas 75244-3292
Attn: President
or to such other address as may be furnished to Indemnitee by the
Company.
12. GOVERNING LAW. THIS AGREEMENT IS MADE AND ENTERED INTO PURSUANT TO
SECTION 145 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE AND THIS
AGREEMENT SHALL BE GOVERNED BY, AND ITS PROVISIONS CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF DELAWARE.
13. Heirs, Successors and Assigns. This Agreement shall insure to the
benefit of, and be enforceable by the Indemnitee's personal or legal
representatives, executors, administrators, heirs, devisees and legatees. This
Agreement is binding on the successors and assigns of the Company. The Company
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place (the assumption by such
successor shall be by written agreement in form and substance reasonably
satisfactory to Indemnitee).
14. Miscellaneous.
(a) This Agreement does not create any right in Indemnitee to
employment or continued employment with the Company or any other
Enterprise.
(b) All references herein in the masculine gender shall, when
appropriate, refer to the feminine gender.
(c) The section headings contained herein are for convenience
only and are not to be considered in construing or interpreting this
Agreement.
(d) In the event of any ambiguity, vagueness or other matter
involving the interpretation or meaning of this Agreement, this
Agreement shall be liberally construed so as to provide Indemnitee the
full benefits set out herein.
5
6
ENTERED into as of the day and year first above written.
DALLAS SEMICONDUCTOR CORPORATION
ATTEST:
By:
----------------------------- ---------------------------------
------------------------------------
Indemnitee
6