FORM OF SECOND AMENDED AND RESTATED INDEMNIFICATION AGREEMENT SMART Modular Technologies (WWH), Inc. (a Cayman Islands company)
Exhibit 10.33
FORM OF SECOND AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
SMART Modular Technologies (WWH), Inc.
(a Cayman Islands company)
SMART Modular Technologies (WWH), Inc.
(a Cayman Islands company)
This Second Amended and Restated Indemnification Agreement (this “Agreement”), made and
entered into as of the day of , 20 , by and between SMART Modular Technologies (WWH),
Inc., an exempted company organized under the laws of the Cayman Islands (the “Company”), and
(“Indemnitee”).
W I T N E S S E T H:
WHEREAS, the Company and the Indemnitee recognize the difficulty in obtaining directors’ and
officers’ liability insurance, the cost of such insurance, the limitations as to who can be covered
under such insurance and the limited scope of coverage that may be available under such insurance;
WHEREAS, the Company and the Indemnitee further recognize the substantial increase in
corporate litigation in general, subjecting officers and directors and key employees to expensive
litigation risks at the same time as the availability and coverage of liability insurance has been
or may be severely limited;
WHEREAS, the Indemnitee does not regard the current indemnification agreement as adequate, and
the Indemnitee and other officers and directors and key employees of the Company may not be willing
to continue to serve as officers, directors and/or as employees without additional protection; and
WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as the Indemnitee, to serve as officers, directors and/or key employees of the
Company and to indemnify its officers, directors and key employees so as to provide them with the
maximum protection permitted by law.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
ARTICLE 1
Certain Definitions
Certain Definitions
(a) As used in this Agreement:
“Change of Control” means any one of the following circumstances occurring after the date
hereof: (i) there shall have occurred an event required to be reported with respect to the Company
in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item or
any similar schedule or form) under the Exchange Act, regardless of
whether the Company is then subject to such reporting requirement; (ii) any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall have become,
without prior approval of the Company’s Board by approval of at least a majority of the Continuing
Directors, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more of the combined voting power of
the Company’s then outstanding voting securities (provided that, for purposes of this clause (ii),
the term “person” shall exclude (x) the Company, (y) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and (z) any corporation owned, directly
or indirectly, by the shareholders of the Company in substantially the same proportions as their
ownership of ordinary shares of the Company); (iii) there occurs a merger or consolidation of the
Company with any other entity, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 51% of the combined voting power of the voting
securities of the surviving entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of
such surviving entity; (iv) all or substantially all the assets of the Company are sold or disposed
of in a transaction or series of related transactions; (v) the approval by the shareholders of the
Company of a complete liquidation of the Company; or (vi) the Continuing Directors cease for any
reason to constitute at least a majority of the members of the Board.
“Continuing Director” means (i) each director on the Board on the date hereof, or (ii) any new
director whose election or nomination for election by the Company’s shareholders or the Company’s
directors was approved by a vote of at least a majority of the directors then still in office who
were directors on the date hereof or whose election or nomination was so approved.
“Corporate Status” means the status of a person who is or was a director, officer, trustee,
general partner, managing member, fiduciary, board of directors’ committee member, employee,
contractor or agent of the Company or of any other Enterprise including any subsidiary or affiliate
of the Company.
“Disinterested Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee.
“Enterprise” means the Company and any other corporation, limited liability company,
partnership, joint venture, entity, trust, committee, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director, officer, trustee,
general partner, managing member, fiduciary, board of directors’ committee member, other committee
member, employee, contractor or agent.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Expenses” means any and all direct and indirect costs (including attorneys’ fees whether or
not suit or other proceedings are underway and at trial and appellate levels, retainers, court
costs, transcripts, 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) reasonably incurred in connection with (i) prosecuting, defending, preparing to prosecute
or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a
Proceeding, or (ii) establishing or enforcing a right to indemnification under this Agreement, the
Company’s Amended and Restated Articles of Association, Amended and Restated Memorandum of
Association applicable law or otherwise. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including the premium, security for, and
other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.
For the avoidance of doubt, Expenses, however, shall not include any Liabilities.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporate law and neither currently is, nor in the five years previous to its selection
or appointment 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 Indemnitee under this Agreement
or of other indemnitees under similar indemnification agreements) or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent Counsel” shall not include any person who, 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.
“Liabilities” means any losses or liabilities, including any judgments, fines, excise taxes
and penalties, penalties and amounts paid or to be paid in settlement, arising out of or in
connection with any Proceeding (including all interest, assessments and other charges paid or
payable in connection with or in respect of any such judgments, fines, excise taxes and penalties,
penalties or amounts paid in settlement).
“Proceeding” means any threatened, pending or completed action, derivative action, suit,
claim, counterclaim, cross claim, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether civil (including intentional and unintentional tort claims), criminal,
administrative or investigative, including any appeal therefrom, and whether instituted by or on
behalf of the Company or any other party, or any inquiry or investigation that Indemnitee in good
faith believes might lead to the institution of any such action, suit or other proceeding
hereinabove listed in which Indemnitee was, is or will be involved as a party, potential party,
non-party witness or otherwise by reason of any Corporate Status of Indemnitee, or by reason of any
action taken (or failure to act) by him or her or of any action (or failure to act) on his or her
part while serving in any Corporate Status.
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(b) For the purposes of this Agreement:
References to “Company” shall include, in addition to the resulting or surviving corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees, contractors or agents, so that if
Indemnitee is or was a director, officer, employee, contractor or agent of such constituent
corporation or is or was serving at the request of such constituent corporation as a director,
officer, employee, contractor or agent of another corporation, partnership, joint venture, trust or
other enterprise, then Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.
Reference 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 Company” shall include any service as a director, officer, employee,
contractor or agent of the Company which imposes duties on, or involves services by, such director,
officer, employee, contractor 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 he reasonably believed to be
in the best interests of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to
in this Agreement.
Reference to “including” shall mean “including, without limitation,” regardless of whether the
words “without limitation” actually appear.
ARTICLE 2
Services By Indemnitee
Services By Indemnitee
Section 2.01. Services By Indemnitee. Indemnitee hereby agrees to serve or continue to serve
as a director, officer or key employee of the Company, for so long as Indemnitee is duly elected or
appointed or until Indemnitee tenders his or her resignation or is removed.
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ARTICLE 3
Indemnification
Indemnification
Section 3.01. General. (a) Notwithstanding any other provisions of this Agreement to the
contrary, the Company hereby agrees to and shall automatically (unless otherwise required by law)
indemnify Indemnitee and hold Indemnitee harmless from and against any and all Expenses and
Liabilities, in either case, actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf by reason of Indemnitee’s Corporate Status, to the
fullest extent permitted by applicable law. The Company’s indemnification obligations set
forth in this Section 3.01 shall apply (i) in respect of Indemnitee’s past, present and future
service in any Corporate Status, (ii) regardless of whether Indemnitee is serving in any Corporate
Status at the time any such Expense or Liability is incurred, and (iii) regardless of whether any
Proceeding is successful.
For purposes of this Agreement, the meaning of the phrase “to the fullest extent permitted by
applicable law” shall include, but not be limited to:
(i) to the fullest extent permitted by any provision of the Cayman Islands Companies
Law, or the corresponding provision of any successor statute to the extent such laws are
applicable, and
(ii) to the fullest extent authorized or permitted by any amendments to or
replacements of the Cayman Islands Companies Law adopted after the date of this Agreement,
to the extent such laws are applicable, that increase the extent to which a corporation or
company may indemnify its officers and/or directors and/or key employees and/or
contractors.
(b) Witness Expenses. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on his or her behalf in connection therewith.
(c) Expenses as a Party Where Wholly or Partly Successful. Notwithstanding any other
provisions of this Agreement, to the fullest extent permitted by applicable law (and not in
derogation of any other provision 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
Indemnitee against all Expenses actually and reasonably incurred by him or her in connection
therewith. If Indemnitee is not wholly successful in such Proceeding, but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with each successfully resolved claim, issue or matter. For purposes of this
Section and without limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
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Section 3.02. Exclusions. Notwithstanding any provision of this Agreement and unless
Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall
not be obligated under this Agreement to make any indemnity in connection with any claim made
against Indemnitee:
(a) for (i) 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 (ii) any reimbursement of the Company
by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company, as required in each case under
the Exchange Act (including any such reimbursements that arise from an accounting restatement of
the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”),
or the payment to the Company of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); or
(b) except as otherwise provided in Sections 6.01(e), prior to a Change of 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, or (iii) the Proceeding is initiated to enforce this Agreement.
Section 3.03. Gross-Up Payment. If any portion of the payments or advances made hereunder
are considered to be a taxable benefit to Indemnitee by any taxing authority and no offsetting
deduction is available to Indemnitee, then, to the fullest extent permitted by applicable law,
Indemnity shall be entitled to additional payment (a “Gross-Up Payment”) in the amount calculated
to ensure that after the Indemnitee pays all applicable taxes, including any taxes on the Gross-Up
Payment, the Indemnitee shall retain an amount of the Gross-Up Payment equal to the taxes due.
ARTICLE 4
Advancement Of Expenses; Defense of Claims; Payment Of Liabilities
Advancement Of Expenses; Defense of Claims; Payment Of Liabilities
Section 4.01. Advances. Notwithstanding any provision of this Agreement to the contrary, the
Company shall advance any Expenses actually and reasonably incurred by Indemnitee in connection
with any Proceeding within ten (10) days after the receipt by the Company of each statement
requesting such advance from time to time, whether prior to, during 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 such amounts 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 an action to enforce this Agreement and/or this
right of advancement, including Expenses incurred preparing and forwarding statements to the
Company to support the advances and/or Liabilities claimed.
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Section 4.02. Repayment of Advances or Other Expenses. Indemnitee agrees that Indemnitee
shall reimburse the Company for all Expenses advanced by the Company pursuant to Section 4.01, in
the event and only to the extent that it shall be determined by final judgment or other final
adjudication under the provisions of any applicable law (as to which all rights of appeal therefrom
have been exhausted or lapsed) that Indemnitee is not entitled to be indemnified by the Company for
such Expenses.
Section 4.03. Defense of Claims. The Company will be entitled to participate in the
Proceeding at its own expense. 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
Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably
withheld. Indemnitee 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 Company without the
Company’s prior written consent, such consent not to be unreasonably withheld.
Section 4.04. Payment of Liabilities. Notwithstanding any provision of this Agreement to the
contrary, unless the Company has posted all appropriate bonds and has taken all required action to
file a valid, timely appeal of any final judgment rendered, the Company shall pay any and all
Liabilities actually and reasonably incurred by Indemnitee in connection with any Proceeding within
ten (10) days after the receipt by the Company of each statement requesting such payment from time
to time, whether prior to, during or after final disposition of any Proceeding. Payment of
Liabilities shall be unsecured and interest free. Payment of Liabilities shall be made without
regard to Indemnitee’s ability to repay such amounts and without regard to Indemnitee’s ultimate
entitlement to indemnification under the other provisions of this Agreement.
ARTICLE 5
Procedures For Notification of and Determination of Entitlement To Indemnification
Procedures For Notification of and Determination of Entitlement To Indemnification
Section 5.01. Notification; Request for Indemnification. (a) As soon as reasonably
practicable after receipt by Indemnitee of written notice that he is a party to or a participant
(as a witness or otherwise) in any Proceeding or of any other matter in respect of which Indemnitee
intends to seek indemnification or advancement of Expenses hereunder, Indemnitee shall provide to
the Company written notice thereof, including the nature of and the facts underlying the
Proceeding. The failure by Indemnitee to so notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or otherwise.
(b) To obtain indemnification under this Agreement, Indemnitee shall deliver to the Company a
written request for indemnification, including therewith such information as is reasonably
available to Indemnitee and reasonably necessary to determine Indemnitee’s entitlement to
indemnification hereunder. Such request(s) may be delivered from time to
time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion.
Indemnitee’s entitlement to indemnification shall be determined according to Section 5.02 of this
Agreement and applicable law.
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Section 5.02. Determination of Entitlement. (a) Where there has been a written request by
Indemnitee for indemnification pursuant to Section 5.01(b), and if applicable law requires a
process for the determination of entitlement then, as soon as is reasonably practicable (but in any
event not later than 30 days) after final disposition of the relevant Proceeding, a determination
with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a
Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors,
even though less than a quorum of the Board, (B) by a committee of Disinterested Directors
designated by a majority vote of the Disinterested Directors, even though less than a quorum of the
Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee; or (ii) if a Change of Control shall have occurred, by Independent Counsel
in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. 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 or expenses (including attorneys’ fees and disbursements) actually and
reasonably 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). Nothing herein is intended to limit Indemnitee’s right to
advancement of Expenses as set forth elsewhere in this agreement.
(b) If entitlement to indemnification is to be determined by Independent Counsel pursuant to
Section 5.02(a)(ii), such Independent Counsel shall be selected by Indemnitee, and Indemnitee shall
give written notice to the Company advising it of the identity of the Independent Counsel so
selected. If entitlement to indemnification is to be determined by Independent Counsel pursuant to
Section 5.02(a)(i)(C) (or if Indemnitee requests that such selection be made by the Board), such
Independent Counsel shall be selected by the Company in which case the Company shall give written
notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such
written notice of selection shall have been 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 1 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 20 days after the later of submission
by Indemnitee of a written request for indemnification pursuant to Section 5.01(b) hereof and the
final disposition of the Proceeding, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or Indemnitee to the other’s
selection of Independent Counsel and/or for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court shall designate, and the person with
respect to whom all objections are so resolved or the person so appointed shall act as Independent
Counsel under Section 5.02(a) hereof. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 6.01(a) of this Agreement, the Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
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(c) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel
serving under this Agreement.
Section 5.03. Presumptions and Burdens of Proof; Effect of Certain Proceedings. (a) In
making any determination with respect to entitlement to indemnification hereunder, the person or
persons or entity making such determination shall, to the fullest extent not prohibited by law,
presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 5.01(b) of this Agreement, and
the Company shall, to the fullest extent not prohibited by law, 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 any person, persons or entity
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 any person, persons or entity 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 5.02 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a
determination within the thirty (30) day period referred to in Section 5.02(a), the requisite
determination of entitlement to indemnification shall, to the fullest extent not prohibited by law,
be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law; provided,
however, that such 30-day period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation and/or
information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is in good faith reliance on the records or books of account
of any Enterprise, including financial statements, or on information supplied to Indemnitee by the
officers or other employees, consultants or representatives of such Enterprise in the course of
their duties, or on the advice of legal counsel for such Enterprise or on information or records
given or reports made to such Enterprise by an independent certified public accountant or by an
appraiser or other expert selected by such Enterprise. The provisions of this Section 5.03(d)
shall not be deemed to be exclusive or to limit in any way the other circumstances in which
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, trustee, partner,
managing member, fiduciary, officer, agent or employee of any Enterprise shall not be imputed to
Indemnitee for purposes of determining any right to indemnification under this Agreement.
ARTICLE 6
Remedies of Indemnitee
Remedies of Indemnitee
Section 6.01. Adjudication or Arbitration. (a) In the event of any dispute between
Indemnitee and the Company hereunder as to entitlement to indemnification, contribution, hold
harmless or payment or advancement of Expenses (including where (i) a determination is made
pursuant to Section 5.02 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 4.01 of this
Agreement, (iii) payment of indemnification pursuant to Section 3.01 of this Agreement is not made
within ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, (iv) no determination as to entitlement to indemnification is timely made pursuant
to Section 5.02 of this Agreement and no payment of indemnification is made within ten (10) days
after entitlement is deemed to have been determined pursuant to Section 5.03(b), or (v) a
contribution payment is not made in a timely manner pursuant to Section 8.04 of this Agreement),
then Indemnitee shall be entitled to an adjudication by a court of his or her entitlement to such
indemnification,
hold harmless, contribution or advancement. Alternatively, in such case, Indemnitee, at his or
her 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. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
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(b) In the event that a determination shall have been made pursuant to Section 5.02(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 6.01 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 6.01, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification, contribution, hold harmless or payment 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 5.02(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a
judicial proceeding or arbitration pursuant to this Section 6.01, Indemnitee shall not be required
to reimburse the Company for any advances pursuant to Section 4.02 or otherwise 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 5.02(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 6.01, 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 6.01 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.
(e) The Company shall indemnify 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 such Expenses to Indemnitee, which are reasonably incurred by
Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee for (i)
indemnification or advances of Expenses by the Company (or otherwise for the enforcement,
interpretation or defense of his or her rights) under this Agreement or any other agreement,
including any other indemnification, contribution or advancement agreement, or any provision of the
Company’s Amended and Restated Articles of Association or Amended and Restated Memorandum of
Association now or hereafter in effect or (ii) recovery or advances under any directors’ and
officers’
liability insurance policy maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, contribution, hold harmless,
advancement or insurance recovery, as the case may be.
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ARTICLE 7
Directors’ and Officers’ Liability Insurance
Directors’ and Officers’ Liability Insurance
Section 7.01. D&O Liability Insurance. To the extent that the Company maintains a policy or
policies of insurance providing liability insurance for directors and officers of the Company in
their capacities as such (and for any capacity in which any director or officer of the Company
serves any other Enterprise at the request of the Company), in respect of acts or omissions
occurring while serving in such capacity, 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
other director or officer under such policy or policies. The provision of such insurance shall not
limit or excuse the liability of the Company hereunder.
ARTICLE 8
Miscellaneous
Miscellaneous
Section 8.01. Nonexclusivity of Rights. The rights of indemnification, contribution and
advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled to under applicable law, the Company’s
Amended and Restated Articles of Association, the Company’s Amended and Restated Memorandum of
Association, any agreement, a vote of shareholders or a resolution of directors, or otherwise. 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.
Section 8.02. Insurance and Subrogation. (a) If, at the time the Company receives notice of
a claim hereunder, 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. The failure or refusal of any such
insurer to pay any such amount shall not affect or impair the obligations of the Company under this
Agreement.
(b) 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.
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(c) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that
Indemnitee has actually received such payment under any insurance policy or other indemnity
provision.
Section 8.03 Amounts from Other Enterprise. 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, partner, managing member, fiduciary, board of directors’ committee member,
employee, contractor 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.
Section 8.04. Contribution. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for Liabilities and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and
reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the event(s) and/or
transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and
its directors, officers, employees, contractors and agents) and Indemnitee in connection with such
event(s) and/or transaction(s).
Section 8.05. Amendment. This Agreement may not be modified or amended except by a written
instrument executed by or on behalf of each of the parties hereto. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit, restrict or reduce any right of
Indemnitee under this Agreement in respect of any act or omission, or any event occurring, prior to
such amendment, alteration or repeal. To the extent that a change in applicable law, whether by
statute or judicial decision, (i) permits greater indemnification, contribution, or advancement of
Expenses than would be afforded currently under the Company’s Amended and Restated Articles of
Association, the Company’s Amended and Restated Memorandum of Association and this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change, or (ii) limits rights with respect to indemnification, contribution, or
advancement of Expenses, it is the intent of the parties hereto that the rights with respect to
indemnification, contribution, or advancement of Expenses in effect prior to such change shall
remain in full force and effect to the fullest extent permitted by applicable law.
Section 8.06. Waivers. The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively) by the party
entitled to enforce such term only by a writing signed by the party against
which such waiver is to be asserted. Unless otherwise expressly provided herein, no delay on
the part of any party hereto in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall
any single or partial exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege hereunder.
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Section 8.07. Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto with respect to the matters covered
hereby, and any other prior or contemporaneous oral or written understandings or agreements with
respect to the matters covered hereby are superseded by this Agreement, provided that this
Agreement is a supplement to and in furtherance of the Amended and Restated Articles of Association
and Amended and Restated Memorandum of Association of the Company and applicable law, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 8.08. 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 each portion of any Section
of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby 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 each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
thereby.
Section 8.09. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing (which may be by email or facsimile transmission). All such notices,
requests and other communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. in the place of receipt and such day is a business day in
the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of receipt. The address for
notice to a party is as shown on the signature page of this Agreement, or such other address as any
party shall have given by written notice to the other party as provided above.
Section 8.10. 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, or to continue to serve as, a director or officer or key employee of the
Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as
a director or officer or key employee of the Company. To the
fullest extent permitted by law, this Agreement is not intended to amend or restate similar
types of agreements with former officers, directors or key employees unless they are expressly made
a party to this Agreement.
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(b) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors, assigns, including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or
assets of the Company, spouses, heirs, legatees, and executors, administrators, personal and legal
representatives. The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all or substantially all, or a substantial part of
the business 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 manner and to the same
extent that the Company would be required to perform if no such succession had taken place.
(c) The indemnification, contribution and advancement of Expenses provided by, or granted
pursuant to this Agreement shall continue as to a person who has ceased to be a director or officer
or employee and shall inure to the benefit of the heirs, executors, administrators, legatees and
assigns of such a person.
Section 8.11. Governing Law. 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 New York,
without regard to its conflict of laws rules.
Section 8.12. Consent to Jurisdiction. Except with respect to any arbitration commenced by
Indemnitee pursuant to Section 6.01(a) of this Agreement, the Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the state or federal court located in the
State of New York (the “New York Court”), and not in any other state or federal court in the United
States of America or any court in any other country, (ii) consent to submit to the exclusive
jurisdiction of the New York Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) waive any objection to the laying of venue of any such action
or proceeding in the New York Court, and (iv) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the New York Court has been brought in an improper or
inconvenient forum.
Section 8.13. Headings. The Article and Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
Section 8.14. 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.
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Section 8.15. Use of Certain Terms. As used in this Agreement, the words “herein,” “hereof,”
and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular paragraph, subparagraph, section, subsection, or other subdivision. Whenever the context
may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine
or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa.
Section 8.16. Primary Obligor. The Company hereby acknowledges that Indemnitee has certain rights to
indemnification, advancement of expenses and/or insurance provided by [Name of Fund/Sponsor] and certain of
[its][their] affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (i) that it is the
indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Fund Indemnitors
to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be
liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent
legally permitted and as required by the terms of this Agreement, the Company’s Amended and Restated Articles of
Association and the Company’s Amended and Restated Memorandum of Association (or any other agreement between the
Company and Indemnitee), without regard to any rights Indemnitee may have against the Fund Indemnitors, and, (iii)
that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund
Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further
agrees that no advancement or payment by the Fund Indemnitors on behalf of Indemnitee with respect to any claim for
which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall
have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of
recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Fund Indemnitors are express
third party beneficiaries of the terms of this Section.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed, delivered and entered into, to be
effective as of the date first above written.
| SMART Modular Technologies (WWH), Inc. | ||||||
| By: | ||||||
| Title: | ||||||
| Address: | 39870 Eureka Drive | |||||
| Newark, California 94560 | ||||||
| Facsimile: | 000-000-0000 | |||||
| Attention: | CEO | |||||
| With a copy to: | SMART Modular Technologies | |||||
| Address: | 39870 Eureka Drive | |||||
| Newark, California 94560 | ||||||
| Facsimile: | 000-000-0000 | |||||
| Attention: | Legal Department | |||||
| INDEMNITEE | ||||||
| Address: | ||||||
| Facsimile: | ||||||
| With a copy to: | ||||||
| Address: | ||||||
| Facsimile: | ||||||
| Attention: | ||||||
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