Form of Indemnification Agreement with Directors



 Exhibit 10.3 
  
 FORM OF INDEMNITY AGREEMENT 
  
 This Indemnity Agreement (“Agreement”) is made as of
                    , 2005 by and between Spansion, Inc., a Delaware corporation (the “Company”), and
                     (“Indemnitee”). 
  
 RECITALS 
  
 WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation. 
  
 WHEREAS, the board of directors of the Company (the “Board”) has
determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain
liabilities. Although the furnishing of such insurance has been a customary and widespread practice among U.S.-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or other business enterprises are being increasingly subjected to expensive and
time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the corporation or business enterprise itself. The Certificate of Incorporation and Bylaws of the Company require
indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to applicable provisions of the Delaware General Corporation Law (“DGCL”), but the indemnification provisions set
forth therein are not exclusive, and the Company may enter into contracts with members of the Board, officers and other persons with respect to indemnification. 
  

WHEREAS, the Company believes it is essential to retain and attract qualified Board Members (as defined below) and uncertainties relating to such
insurance and to indemnification have increased the difficulty of attracting and retaining such persons. 
  
 WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the
Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future. 
  
 WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law as an inducement to them serving or continuing to serve the Company free from undue concern that they will not be so indemnified. 
  
 WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and Bylaws of the Company
and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder. 
  

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 WHEREAS, Indemnitee is a Board Member and does not regard the protection available under the
Company’s Certificate of Incorporation and Bylaws and insurance as adequate in the present circumstances, and may not be willing to serve as a Board Member without adequate protection, and the Company desires Indemnitee to serve in such
capacity. 
  
 WHEREAS, Indemnitee is willing to serve, continue to
serve and to take on additional service for or on behalf of the Company on the condition that he or she be indemnified as provided in this Agreement. 
  
 WHEREAS, this Agreement hereby amends and restates any existing indemnification agreement between Indemnitee and the Company (or any predecessor to the
Company). 
  
 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 to the Company. Indemnitee will serve or continue to serve as a member of the Board (“Board Member”) of the Company for so
long as Indemnitee is duly elected or appointed or until Indemnitee tenders his resignation. Indemnitee may tender his or her resignation at any time in his or her sole and absolute discretion. 
  
 2. Definitions. As used in this Agreement: 
  
 (a) References to “agent” shall mean any person who is or was a
Board Member, manager, director, officer, or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a manager, director, officer,
employee, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of
the Company. 
  
 (b) The terms “Beneficial Owner” and
“Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date hereof. 
  
 (c) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of
any of the following events: 
  
 (i) Acquisition of Stock by
Third Party. Any Person (as defined below) other than existing holders of securities of the Company or such stockholders’ Affiliates as of the date of this Agreement, is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of Board Members (including in connection with a Business
Combination), unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally

  

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 in the election of Board Members, or (2) such acquisition was approved in advance by the Continuing Directors (as
defined below) and such acquisition would not constitute a Change in Control under part (iii) of this definition; 
  
 (ii) Change in Board. Individuals who, as of the date hereof, constitute the Board, and any new Board Member whose election by the Board or
nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the Board Members then still in office who were Board Members on the date hereof or whose election for nomination for election was previously
so approved (collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority of the Board Members (including in connection with a Business Combination); 
  
 (iii) Corporate Transactions. The effective date of a reorganization,
merger or consolidation of the Company (a “Business Combination”), in each case, unless, following such Business Combination, the individuals and entities who were the Beneficial Owners of securities entitled to vote generally in the
election of directors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of
Board Members, directors or members of a similar governing body 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 securities entitled to vote generally in the election of
Board Members; 
  
 (iv) Liquidation. The approval by the
stockholders of the Company of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s
current receivables or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions); or 
  
 (v) Other Events. There occurs any other event of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then
subject to such reporting requirement. 
  
 (d) “Corporate
Status” describes the status of a person who is or was a Board Member, manager, director, officer, trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any other Enterprise (as defined below) which such
person is or was serving at the request of the Company in such capacity. 
  
 (e) “Delaware Court” shall mean the Court of Chancery of the State of Delaware. 
  

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 (f) “Disinterested Director” shall mean a Board Member of the Company who is not and was not a
party to the Proceeding (as defined below) in respect of which indemnification is sought by Indemnitee. 
  
 (g) “Enterprise” shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at
the request of the Company as a Board Member, manager, director, officer, trustee, general partner, managing member, fiduciary, employee or agent. 
  
 (h) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. 
  
 (i) “Expenses” shall include attorneys’ fees and costs, 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 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 (as defined below). Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding (as defined
below), including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee. 
  
 (j)
“Independent Counsel” shall mean 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 (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding (as
defined below) giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, 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. 
  
 (k) References to “fines” shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan; references to
“serving at the request of the Company” shall include any service as a director, officer, manager, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, manager, employee,
agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of
an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement. 
  

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 (l) The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act and the rules and regulations thereunder, as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company;
(iii) any employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of a corporation owned directly or indirectly by
the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. 
  
 (m) The term “Proceeding” shall include 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 in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal,
administrative or investigative nature, in which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that Indemnitee is or was a Board Member, by reason of any action (or failure to act) taken by him or of any action
(or failure to act) on his part while acting as a Board Member, or by reason of the fact that he is or was serving at the request of the Company as a manager, director, officer, trustee, general partner, managing member, fiduciary, employee or agent
of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement. 
  
 (n) The term “Subsidiary,” with respect to any Person, shall mean
any corporation or other entity of which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by that Person. 
  
 3. Indemnity in Third-Party Proceedings. The Company shall indemnify and hold harmless Indemnitee in accordance with
the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments, liabilities, fines, penalties 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, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee 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, in the case of a criminal Proceeding, had no reasonable cause to believe that his conduct was unlawful.

  
 4. Indemnity in Proceedings by or in the Right of the
Company. The Company shall indemnify and hold harmless Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any
Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses actually 
  

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 and reasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought or the Delaware Court shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. 
  
 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify and hold harmless
Indemnitee against all Expenses actually and reasonably incurred by him in connection therewith. If Indemnitee is not wholly successful in such Proceeding, the Company also shall indemnify and hold harmless Indemnitee against all Expenses reasonably
incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which the Indemnitee was successful. 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. 
  
 6. Indemnification For Expenses of a Witness. 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 and held harmless against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. 
  
 7. Additional Indemnification. Notwithstanding any limitation in
Sections 3, 4, or 5, the Company shall indemnify and hold harmless Indemnitee 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 Company to procure a judgment in its
favor) against all Expenses, judgments, fines, penalties 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, fines, penalties and amounts
paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnity shall be made under this Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty
of loyalty to the Company 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. 
  
 8. Contribution in the Event of Joint Liability. 
  
 (a) To the fullest extent permissible under applicable law, if the indemnification and hold harmless rights provided for in
this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying and holding harmless Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for
judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any
right of contribution it may have at any time against Indemnitee. 
  

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 (b) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee. 
  
 (c) The Company hereby agrees to fully indemnify and hold harmless Indemnitee from any claims for contribution which may be
brought by officers, Board Members or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee. 
  
 9. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim: 
  
 (a) made against Indemnitee for
which payment has actually been received by or on behalf of Indemnitee under any insurance policy, contract, agreement or other indemnity provision obtained and maintained by any Person for the benefit of Indemnitee, except with respect to any
excess beyond the amount actually received under any insurance policy, contract, agreement or other indemnity provision; 
  
 (b) made against Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company
within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; or 
  
 (c) except as otherwise provided in Sections 14(e)-(f) hereof, made by Indemnitee prior to a Change in Control, in connection with any Proceeding (or
any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its initiation; or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law. 
  
 10. Advances of Expenses; Defense of Claim. 
  
 (a) Notwithstanding any provision of this Agreement to the contrary, and to
the fullest extent permitted by applicable law, the Company shall advance the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be
made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all reasonable
Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. Indemnitee shall qualify for advances, to the fullest
extent permitted by applicable law, solely upon the execution 
  

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 and delivery to the Company of an undertaking providing that Indemnitee undertakes to repay the advances to the extent
that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Certificate of Incorporation or Bylaws of the Company, applicable law or otherwise. This Section 10(a)
shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 9. 
  
 (b) The Company will be entitled to participate in Proceedings at its own expense. 
  
 (c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense,
judgment, fine, penalty or limitation on the Indemnitee without the Indemnitee’s prior written consent. 
  
 11. Procedure for Notification and Application for Indemnification. 
  
 (a) Indemnitee agrees to notify promptly 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. 
  
 (b) Indemnitee may deliver to the Company a written application to indemnify and hold harmless Indemnitee in accordance with this Agreement. Such
application(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. The failure of Indemnitee to deliver any such application shall not relieve the Company of any obligation which it
may have to Indemnitee under this Agreement or otherwise. Following such a written application for indemnification by Indemnitee, the Indemnitee’s entitlement to indemnification shall be determined according to Section 12(a) of this
Agreement. 
  
 12. Procedure Upon Application for
Indemnification. 
  
 (a) A determination, if required by
applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board; or (ii) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably 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 
  

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 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.

  
 (b) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the
requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent
Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be,
may, within ten (10) days after such written notice of selection shall have been received, 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 2 of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. 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 of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification
pursuant to Section 11(a) hereof that is subject to a determination of entitlement to indemnification to be made by Independent Counsel, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may
petition the Delaware Court 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
Delaware Court, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 14(a) 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). 
  
 (c) The Company agrees to pay the reasonable fees and expenses of Independent
Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. 
  
 13. Presumptions and Effect of Certain Proceedings. 
  
 (a) In making a determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall presume that 
  

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 Indemnitee is entitled to indemnification under 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 by its Board Members or Independent 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
by its Board Members or Independent 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 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) 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 final judicial determination that any or all such indemnification is expressly prohibited under applicable law;
provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) 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. 
  
 (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 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) 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 Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of
legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise. The provisions of this
Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. 
  
 (e) The knowledge and/or actions, or failure to act, of any other director,
officer, manager, Board Member, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. 
  

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 14. Remedies of Indemnitee. 
  
 (a) In the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 12(a) of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification pursuant to this Agreement is
not made within ten (10) days after receipt by the Company of a written request therefor (or within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, if such determination is required) or
(v) a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, Indemnitee shall be entitled to an adjudication by the Delaware Court to such indemnification, contribution 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. Except as set forth herein, the provisions of
Delaware law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. 
  
 (b) In the event that a determination shall have been made pursuant to
Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 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. In any judicial proceeding or arbitration commenced pursuant to this Section 14, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any
determination pursuant to Section 12(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 14, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed). 
  
 (c) If a determination shall have been made pursuant to Section 12(a) 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 14, 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) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 14 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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 (e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by law
against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Company’s receipt of such written request) advance to Indemnitee, to the fullest extent permitted by applicable law, such Expenses which are
incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to enforce his rights under, or to recover damages for breach of, this Agreement or any other indemnification, advancement or
contribution agreement or provision of the Company’s Certificate of Incorporation or Bylaws now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee,
regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance, contribution or insurance recovery, as the case may be. 
  
 (f) Interest shall be paid by the Company to Indemnitee at the highest legal rate under Delaware law for amounts which the
Company indemnifies or is obliged to indemnify or contribute, reimburse or advance for the period commencing with the date on which Indemnitee requests indemnification, contribution, reimbursement or advancement of any Expenses and ending with the
date on which such payment is made to Indemnitee by the Company. 
  
 15. Security; Change in Control. 
  
 (a)
Notwithstanding anything herein to the contrary, to the extent requested by the Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to the Indemnitee for the Company’s obligations hereunder
through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to the Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee. 
  
 (b) The Company agrees that if there is a Change in Control of the Company,
then with respect to all matters thereafter arising concerning the rights of Indemnitee under this Agreement or any other agreement or under applicable law or the Certificate of Incorporation or Bylaws of the Company or hereafter in effect relating
to indemnification of Indemnitee in his or her capacity as a Board Member, at the request of Indemnitee, the Company shall seek legal advice from Independent Counsel selected by the Company and approved by Indemnitee, which approval shall not be
unreasonably withheld. Such Independent Counsel shall, among other things, render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified. The Company agrees to pay the
reasonable fees and expenses of the Independent Counsel. 
  
 16.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation. 
  
 (a) The rights of indemnification and to receive advancement of Expenses and all other rights 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 Company’s Certificate of Incorporation or Bylaws, any agreement, a vote of stockholders or a resolution of the Board 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 
  

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 or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a
change in applicable law, whether by statute or judicial decision, permits greater indemnification, advancement of Expenses or similar rights than would be afforded currently under the Company’s Certificate of Incorporation or Bylaws or 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) The DGCL and the Company’s Bylaws permit the Company to purchase and maintain insurance or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter
of credit, or surety bond (“Indemnification Arrangements”) on behalf of Indemnitee against any liability asserted against him or incurred by or on behalf of him or in such capacity as a director, officer, Board Member, manager, employee or
agent of the Company, or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions of this Agreement or under applicable law, as it may then be in effect. The
purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Company or of the Indemnitee under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Company and the Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement. 

 
 (c) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for Board Members, managers, officers, trustees, partners, managing members, fiduciaries, employees, or agents of the Company or of any 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, Board Member, manager, trustee, partner, managing member, fiduciary,
employee or agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. 
  
 (d) 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 to enforce such rights. 
  
 (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, trustee, 
  

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 partner, managing member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee
has actually received as indemnification or advancement of expenses from such Enterprise. 
  
 17. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as a Board Member or as a director, officer, manager, trustee,
partner, managing member, fiduciary, employee or agent of any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the request of the Company and shall
continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of his Corporate
Status, whether or not he is acting in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. 
  
 18. 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, paragraph or sentence 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 and shall remain enforceable to the fullest extent permitted by law;
(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, paragraph or sentence 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. 
  
 19. Enforcement and Binding Effect. 
  
 (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 Board Member, officer or key employee
of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a Board Member, officer or key employee of the Company. 
  
 (b) Without limiting any of the rights of Indemnitee under the Certificate of Incorporation or Bylaws of the Company as they
may be amended from time to time, 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. 
  
 (c)
The indemnification and advancement of expenses provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the 
  

 14 








 Company), shall continue as to an Indemnitee who has ceased to be a Board Member, manager, director, officer, employee or
agent of the Company or of any other Enterprise, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives. 
  
 (d) The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. 
  

(e) The Company and Indemnitee agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable
and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific performance hereof,
without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be entitled. The
Company and Indemnitee further agree that Indemnitee shall be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting
bonds or other undertaking in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by the Court, and the Company hereby waives any such requirement of such a bond or
undertaking. 
  
 20. Modification and Waiver. No
supplement, modification or amendment of this Agreement shall be binding unless executed in writing by 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 of
this Agreement nor shall any waiver constitute a continuing waiver. Except as expressly provided herein, no failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. It is the intent of the
Company and Indemnitee that the benefits provided to Indemnitee hereunder shall be not less than the rights provided to any other Board Member (in such capacity) pursuant to any contract, agreement or arrangement that provides similar rights
relating to the subject matter hereof. 
  
 21. Notices.
All notices, requests, demands and other communications under this Agreement 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, or (ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed: 
  
 (a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee
shall provide in writing to the Company. 
  

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 (b) If to the Company, to: 
  

					
	 	 	 Spansion Inc.
	 	 
	 	 	 915 DeGuigne Drive
	 	 
	 	 	 Sunnyvale, California 94088
	 	 
	 	 	 Attention: General Counsel
	 	 

  
 or to
any other address as may have been furnished to Indemnitee in writing by the Company. 
  
 22. Applicable Law and Consent to Jurisdiction. 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 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (a) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in 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; (b) 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; (c) appoint irrevocably, to the extent such party is not a resident of the State of
Delaware, RL&F Service Corp., One Rodney Square, 10th Floor, 10th and King Streets, Wilmington, Delaware 19801 as its agent in the State of Delaware as such party’s agent 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; (d) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court;
and (e) 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 inconvenient forum, or is subject (in whole or in part) to a jury trial. 

 
 23. 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. 
  
 24. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the sections 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. 
  

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 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first
above written. 
  

									
	SPANSION, INC.	 	 	 	INDEMNITEE
				
	By:	 	  

	 	 	 	  


	 	 	Chief Executive Officer	 	 	 	Name:	 	 
	 	 	 	 	 	 	Address:	 	 

  

 17