EXHIBIT 10.42
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of
by and between Sanmina-SCI Corporation, a Delaware corporation (the
“Company”), and
(“Indemnitee”).
RECITALS
WHEREAS, the Company desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company;
WHEREAS, in order to induce
Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and
advancement of expenses to, Indemnitee as set forth
herein;
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 as
Indemnitee so that they will serve or continue to serve the Company
free from undue concern that they will not be so indemnified;
and
WHEREAS, this Agreement is a
supplement to and in furtherance of the indemnification provided in
the Certificate of Incorporation (the “Charter”) and
Bylaws (the “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.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the
Company . Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign
from such position (subject to any other contractual obligation or
any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue
Indemnitee in such position. This Agreement shall not be
deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. The foregoing
notwithstanding, this Agreement shall continue in force after
Indemnitee has ceased to serve as a director of the
Company.
Section 2. Definitions
.
As used in this
Agreement:
(a)
“ Corporate Status ” describes the status of a
person who is or was a director, officer, employee or agent of the
Company or of any other corporation, partnership or joint venture,
trust, employee benefit plan or other enterprise which such person
is or was serving at the request of the Company.
(b)
“Enterprise” shall mean the Company and any other
corporation, 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 director, officer, employee, agent
or fiduciary.
(c)
“Expenses” shall include all reasonable
attorneys’ fees, 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 of the types
customarily incurred 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. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs
relating to any cost bond, supersedes 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.
(d)
“Independent Counsel” means a law firm, or a partner
(or, if applicable, member) of such 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 giving rise to a claim for indemnification
hereunder. 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. The Company agrees to pay the
reasonable fees and expenses of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant
hereto.
(e)
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, 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
director of the Company, by reason of any action taken by him or of
any action on his part while acting as director of the Company, or
by reason of the fact that he is or was serving at the request of
the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or 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; provided ,
however , that the term “Proceeding” shall not
include any action, suit or arbitration initiated by Indemnitee to
enforce Indemnitee’s rights under this Agreement.
Section 3. Indemnity in
Third-Party Proceedings . The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3
if Indemnitee is, or is threatened to be made, a party to or a
participant 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, fines 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. Indemnitee shall not enter into any settlement in
connection with a Proceeding without thirty (30) days prior written
notice to the Company.
Section 4. Indemnity in
Proceedings by or in the Right of the Company . The
Company shall indemnify Indemnitee in accordance with the
provisions of this Section 4 if Indemnitee is, or is
threatened to be made, a party to or a participant 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 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 the Delaware
Court of Chancery (the “Delaware Court”) or any court
in which the Proceeding was brought 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 for such expenses as the
Delaware Court or such other court shall deem proper.
Section 5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful
. 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 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 indemnify Indemnitee against
(a) all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim,
issue or matter and (b) any claim, issue or matter related to
any such 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.
Section 6. Indemnification
For Expenses of a Witness . 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 against
all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith.
Section 7. Additional
Indemnification .
(a)
Notwithstanding any limitation in Sections 3, 4, or 5, the Company
shall indemnify Indemnitee to the fullest extent permitted by law
if Indemnitee is a party to or is 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 and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the
Proceeding.
(b)
For purposes of Section 7(a), the meaning of the phrase
“to the fullest extent permitted by law” shall include,
but not be limited to:
(i)
to the fullest extent permitted by the provision of the Delaware
General Corporation Law (“DGCL”) that authorizes or
contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the
DGCL or such provision thereof; and
(ii)
to the fullest extent authorized or permitted by any amendments to
or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
Section 8. Exclusions
. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement
to make any indemnity in connection with any claim made against
Indemnitee:
(a)
for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision;
(b)
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 Securities
Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law;
(c)
for which payment is prohibited by applicable law;
(d)
in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or
the directors, officers, employees or other agents of the Company,
unless (i) such indemnification is expressly required to be
made by law, (ii) the proceeding was authorized by the Board
of Directors of the Company (the “Board”),
(iii) such indemnification is provided by the Company, in its
sole discretion, pursuant to the powers vested in the Company under
the DGCL, or (iv) the proceeding is initiated pursuant to
Section 13 hereof;
(e)
on account of Indemnitee’s conduct that is established by a
final judgment as knowingly fraudulent or deliberately dishonest or
that constituted willful misconduct; or
(f)
on account of Indemnitee’s conduct that is established by a
final judgment as resulting in any personal profit or advantage to
which Indemnitee was not legally entitled.
Section 9. Advancement of
Expenses . The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in
connection with any Proceeding, and such advancement shall be made
within forty-five (45) days after the receipt by the Company of a
statement or statements requesting such advances (which shall
include invoices received by Indemnitee in connection with such
Expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditures
made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice) 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 an action
to enforce this right of advancement. The Indemnitee agrees,
as an undertaking within the meaning of the DGCL, that Indemnitee
will reimburse the Company for all Expenses advanced by the Company
under this Agreement if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, that Indemnitee is not entitled to
be indemnified by the Company under this Agreement, the
Company’s Bylaws, the Charter or applicable law. This
Section 9 shall not apply to any claim made by Indemnitee for
which indemnity is excluded pursuant to Section 8. The
right to advances under this paragraph shall in all events continue
until final disposition of any Proceeding, including any appeal
therein.
Section 10. Procedure for
Notification and Defense of Claim. Not later than thirty (30) days
after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, notify the Company
of the commencement thereof; but Indemnitee’s omission so to
notify the Company will not relieve the Company from any liability
which the Company may have to Indemnitee under this Agreement
unless the Company is materially prejudiced by such failure.
With respect to any such Proceeding as to which Indemnitee notifies
the Company of the commencement thereof:
(a)
The Company will be entitled to participate in the Proceeding at
its own expense.
(b)
Except as otherwise provided below, the Company may, at its option
and jointly with any other indemnifying party similarly notified
and electing to assume such defense, assume the defense thereof,
with counsel reasonably satisfac
