Exhibit 10.1
INDEMNITY AGREEMENT
This Agreement is made as of the day of _____, 20__, by and
between Cascade Microtech, Inc., an Oregon corporation (the "Corporation"), and
__________ ("Indemnitee"), a director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and
attract as directors and officers the most capable persons available; and
WHEREAS, the increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability and coverage of directors' and officers' liability insurance has
been reduced; and
WHEREAS, it is now and has been the express policy of the
Corporation to indemnify its directors and officers so as to provide them with
the maximum possible protection permitted by law; and
WHEREAS, the articles of incorporation or bylaws of the
Corporation require indemnification of the officers and directors of the
Corporation to the fullest extent permitted by the Oregon Business Corporation
Act {the "Act"); the Act contemplates that contracts may be entered into between
the Corporation and members of the Board of Directors and officers with respect
to indemnification of directors and officers; and
WHEREAS, Indemnitee does not regard the protection available
under the Corporation's articles of incorporation, bylaws and insurance adequate
in the present circumstances, and may not be willing to serve as a director or
officer without adequate protection, and the Corporation desires Indemnitee to
serve in such capacity.
NOW, THEREFORE, the Corporation and Indemnitee agree as
follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to
serve as a director or officer of the Corporation for so long as Indemnitee is
duly elected or appointed or until Indemnitee tenders a resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include threatened,
pending or completed action, suit or proceeding, whether brought in the right of
the Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee may be or may have been involved as a
party or otherwise by reason of the fact that Indemnitee is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer,
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employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, whether or not serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement can
be provided under this Agreement.
(b) The term "Expenses" includes, without limitation,
expense of investigations, judicial or administrative proceedings or appeals,
attorneys' fees and disbursements and any expenses of establishing a right to
indemnification under Section 11 of this Agreement, but shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(c) References to "other enterprise" shall include
employee benefit plans; references to "fines" shall include any excise tax
assessed with respect to any employee benefit plan; references to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner reasonably believed to be in the interest of
an employee benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the Corporation" as referred to in this Agreement.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee in connection with
such Proceeding, but only if Indemnitee acted in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation and, in the case of a criminal proceeding, in
addition, had no reasonable cause to believe that Indemnitee's conduct was
unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify Indemnitee in accordance with the
provisions of this Section 4 if Indemnitee is a party to or threatened to be
made a party to any Proceeding by or in the right of the Corporation to procure
a judgment in its favor against all Expenses actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding, but
only if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which such person
shall have been finally adjudged by a court to be liable to the Corporation,
unless and only to the extent that any court in which such Proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstance of the case, Indemnitee is fairly
and reasonably entitled to indemnity.
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5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTS. Not
withstanding any other provisions of this Agreement, to the extent that
Indemnitee has been successful, on the merits or otherwise, in defense of any
Proceeding or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
6. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4 or 5,
the Corporation shall indemnify Indemnitee to the fullest extent permitted by
law if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Corporation to
procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in
connection with such Proceeding, provided that no indemnity shall be made under
this Section 6(a) on account of Indemnitee's conduct which constitutes a breach
of Indemnitee's duty of loyalty to the Corporation or its stockholders or is an
act or omission not in good faith or which involves intentional misconduct or a
knowing violation of the law.
(b) Notwithstanding any limitation in Sections 3, 4, 5 or
6(a), the Corporation shall indemnify Indemnitee to the fullest extent permitted
by law if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Corporation to
procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in
connection with such Proceeding.
(c) For purposes of Sections 6(a) and 6(b), the meaning
of the phrase "to the fullest extent permitted by law" shall include, but not be
limited to: (i) to the fullest extent permitted by the provision of the Act that
authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the Act; and (ii)
to the fullest extent authorized or permitted by any amendments to or
replacements of the Act adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers and directors.
7. EXCLUSIONS. Notwithstanding any provision in this Agreement,
the Corporation shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on
behalf of Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount paid under such insurance or
other indemnity provision;
(b) for any transaction from which Indemnitee derived an
improper personal benefit;
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(c) for an accounting of profits made from the purchase
and sale by Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any state statutory law or common law;
(d) if a court having jurisdiction in the matter shall
finally determine that such indemnification is not lawful under any applicable
statute or public policy (and, in this respect, both the Corporation and
Indemnitee have been advised that the Securities and Exchange Commission
believes that indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore, unenforceable and
that claims for indemnification should be submitted to appropriate courts for
adjudication); or
(e) in connection with any Proceeding (or part thereof)
initiated by Indemnitee, or any Proceeding by Indemnitee against the Corporation
or its directors, officers, employees or other indemnitees, unless: (i) such
indemnification is expressly required to be made by law; (ii) the Proceeding was
authorized by the Board of Directors of the Corporation; (iii) such
indemnification is provided by the Corporation, in its sole discretion, pursuant
to the powers vested in the Corporation under applicable law; or (iv) the
Proceeding is initiated pursuant to Section 11 hereof and Indemnitee is
successful in whole or in part in such Proceeding.
8. ADVANCES OF EXPENSES. The Expenses incurred by Indemnitee in
any Proceeding shall be paid by the Corporation in advance at the written
request of Indemnitee, if Indemnitee:
(a) furnishes the Corporation a written affirmation of
the Indemnitee's good faith belief that Indemnitee is entitled to be indemnified
by the Corporation under this Agreement; and
(b) furnishes the Corporation a written undertaking to
repay such advances to the extent that it is ultimately determined by a court
that Indemnitee is not entitled to be indemnified by the Corporation. Such
advances shall be made without regard to Indemnitee's ability to repay such
expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this Agreement.
9. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30)
days after 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 Corporation under this Agreement, notify the Corporation of the commencement
thereof; provided, however, that the omission to notify the Corporation will not
relieve the Corporation 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 Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate
therein at its own expense.
(b) Except as otherwise provided below, the Corporation
may, at its option and jointly with any other indemnifying party similarly
notified and electing to assume such defense,
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assume the defense thereof, with legal counsel reasonably satisfactory to
Indemnitee. Indemnitee shall have the right to employ separate counsel in such
Proceeding, but the Corporation shall not be liable to Indemnitee under this
Agreement, including Section 8 hereof, for the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense,
unless: (i) Indemnitee reasonably concludes that there may be a conflict of
interest between the Corporation and Indemnitee in the conduct of the defense of
such Proceeding; or (ii) the Corporation does not employ counsel to assume the
defense of such Proceeding. The Corporation shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Corporation or as to
which Indemnitee shall have made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to
indemnification from the Corporation, including the Indemnitee, are parties to
any Proceeding, the Corporation may require Indemnitee to engage the same legal
counsel as the other parties. Indemnitee shall have the right to employ separate
legal counsel in such Proceeding, but the Corporation shall not be liable to
Indemnitee under this Agreement, including Section 8 hereof, for the fees and
expenses of such counsel incurred after notice from the Corporation of the
requirement to engage the same counsel as other parties, unless the Indemnitee
reasonably concludes that there may be a conflict of interest between Indemnitee
and any of the other parties required by the Corporation to be represented by
the same legal counsel.
(d) The Corporation shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent, which shall not be unreasonably
withheld. The Corporation shall be permitted to settle any Proceeding the
defense of which it assumes, except the Corporation shall not settle any action
or claim in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent, which may be given or withheld
in Indemnitee's sole discretion.
10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. Any
indemnification under Sections 3, 4, 5 or 6 of this Agreement shall be made no
later than 90 days after receipt of the written request of Indemnitee for such
indemnification and shall not require that a determination be made in accordance
with the Act by the persons specified in the Act that indemnification is
required under this Agreement; provided, however, that, unless it is ordered by
a court in an enforcement action under Section 11 of this Agreement, no such
indemnification shall be made if a determination is made within such 90-day
period by: (a) the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such Proceeding; or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if such a quorum
is not obtainable), that the Indemnitee is not entitled to indemnification under
this Agreement.
11. ENFORCEMENT. Any right to indemnification or advances granted
by this Agreement to Indemnitee shall be enforceable by or on behalf of
Indemnitee in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within 90 days of a written request therefor.
Indemnitee, in such enforcement action, if successful in whole or in part, shall
be entitled to be paid also the expense of
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prosecuting the claim. It shall be a defense to any such enforcement action
(other than an action brought to enforce a claim for advancement of expenses
pursuant to Section 8 hereof if the required affirmation and undertaking have
been tendered to the Corporation) that Indemnitee is not entitled to
indemnification under this Agreement, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors or its shareholders) to make a determination prior to the
commencement of such enforcement action that indemnification of Indemnitee is
proper in the circumstances, nor an actual determination by the Corporation
(including its Board of Directors or its shareholders) that such indemnification
is improper shall be a defense to the action or create a presumption that
Indemnitee is not entitled to indemnification under this Agreement or otherwise.
The termination of any Proceeding by judgment, order of court, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee is not entitled to indemnification
under this Agreement or otherwise.
12. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in the investigation, defense,
appeal or settlement of any Proceeding but not, however, for the total amount
thereof, the Corporation shall indemnify Indemnitee for the portion of such
Expenses, judgments, fines and amounts paid in settlement to which Indemnitee is
entitled.
13. NON-EXCLUSIVITY AND CONTINUITY OF RIGHTS. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under the articles of incorporation, the
bylaws, any other agreement, any vote of shareholders or directors, the Act, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification under this
Agreement shall continue as to Indemnitee even though Indemnitee ceases to be a
director or officer and shall inure to the benefit of the heirs and personal
representatives of Indemnitee.
14. SEVERABILITY. If this Agreement or any portion thereof is
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall indemnify Indemnitee as to Expenses, judgments, fines and
amounts paid in settlement with respect to any Proceeding to the full extent
permitted by any applicable portion of this Agreement that is not invalidated or
by any other applicable law.
15. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts necessary to secure such rights and to enable the Corporation
effectively to bring suit to enforce such rights.
16. 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
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any of the provisions of this Agreement shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
17. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, at the time of such
delivery, or (ii) if 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, at the address indicated on the
signature page hereof;
(b) If to the Corporation, to:
0000 X.X. 000xx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Chief Executive Officer
or to such other address as may have been furnished to Indemnitee by the
Corporation.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
19. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the law of the state in which the Corporation is
incorporated.
20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Corporation and its successors and assigns.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
CASCADE MICROTECH, INC.
By:________________________________________
Xxxx X. Xxxxx
Chief Executive Officer
INDEMNITEE:
___________________________________________
Signature
___________________________________________
Type or Print Name
___________________________________________
Address
___________________________________________
City State Zip Code
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