Exhibit 10.4(b)
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“ Agreement ”) is made as of this
day of
, 20 by and between Seagate
Technology, a Cayman Islands exempted limited liability company
(the “ Company ”), and
(“ Indemnitee ”).
WHEREAS, the Company and Indemnitee
recognize the potential for variations in the marketplace for
liability insurance covering risks faced by directors and officers
of companies, corporations and limited liability companies, and the
potential for significant increases in the cost of such insurance
and its availability; and
WHEREAS, the Company and Indemnitee
further recognize the continuing increase in litigation involving
companies, corporations and/or limited liability companies, in
general, subjecting directors and officers to expensive litigation
risk; and
WHEREAS, Indemnitee recognizes the
potential volatility of all such insurance programs given the
climate of litigation, and Indemnitee and other directors and
officers of the Company or its subsidiaries (each, a “
Subsidiary ” and together, the “
Subsidiaries ”) may not be willing to serve as
directors and officers without adequate protection; and
WHEREAS, the Company desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve as directors and officers of the
Company and its Subsidiaries and the Company desires to indemnify
its and its Subsidiaries’ directors and officers so as to
provide them with the maximum protection permitted by applicable
law.
NOW, THEREFORE, the Company and
Indemnitee hereby agree as follows:
1. Indemnification
.
(a) Third Party Proceedings .
The Company shall, to the fullest extent permitted by applicable
law, indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action, suit or
proceeding by, in the name or on behalf of, or in right of, the
Company or any Subsidiary) by reason of the fact that Indemnitee is
or was a director, officer, employee or agent of the Company or any
Subsidiary, by reason of any action or inaction on the part of
Indemnitee in Indemnitee’s capacity as a director, officer,
employee or agent of the Company or such Subsidiary, as applicable,
or by reason of the fact that Indemnitee is or was serving at the
request of the Company or such Subsidiary as a director, officer,
employee or agent of another company, corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement (if such settlement is approved in advance by
the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with
such action, suit or proceeding; provided, however , that
the Company shall not indemnify Indemnitee against any liability
arising out of (i) any fraud or dishonesty in the performance
of Indemnitee’s duty to the Company or such Subsidiary, as
applicable, or (ii) Indemnitee’s conscious, intentional
or wilful failure to act honestly, lawfully and in good
faith
with a view to the best interests of the Company
or such Subsidiary, as applicable. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee acted fraudulently or
dishonestly or consciously, intentionally or wilfully failed to act
in good faith with a view to the best interests of the Company or
the relevant Subsidiary, as applicable.
(b) Proceedings By, In the Name
or on Behalf of, or in the Right of the Company or Any
Subsidiary . The Company shall, to the fullest extent permitted
by applicable law, indemnify Indemnitee if Indemnitee is or was a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by, in the name or
on behalf of, or in right of, the Company or any Subsidiary, to
procure a judgment in its or such Subsidiary’s favor, as
applicable, by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company or such
Subsidiary, as applicable, by reason of any action or inaction on
the part of Indemnitee in such Indemnitee’s capacity as a
director, officer, employee or agent of the Company or such
Subsidiary, as applicable, or by reason of the fact that Indemnitee
is or was serving at the request of the Company or such Subsidiary,
as applicable, as a director, officer, employee or agent of another
company, corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees)
actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such action, suit or proceeding,
except that no indemnification for expenses shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable for fraud or dishonesty in the
performance of his duty to the Company or such Subsidiary, as
applicable, or for conscious, intentional or wilful failure to act
honestly, lawfully and in good faith with a view to the best
interests of the Company or such Subsidiary, as applicable, unless
and only to the extent that the Grand Court of the Cayman Islands
or the court in which such action, suit or 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 indemnity for such
expenses which the Grand Court of the Cayman Islands or such other
court shall deem proper.
(c) Mandatory Payment of
Expenses . To the extent that Indemnitee has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Subsections (a) and (b) of this
Section 1 or the defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by Indemnitee in connection therewith.
2. Agreement to Serve . In
consideration of the protections afforded by this Agreement, if
Indemnitee is a director or an officer of the Company or a
Subsidiary not serving under an employment contract, he or she
agrees to serve in such capacity at least for the balance of the
current fiscal year of the Company or such Subsidiary, as
applicable, at the will of the Company or such Subsidiary, as
applicable, and not to resign voluntarily during such period
without the written consent of a majority of the board of directors
of the Company or such Subsidiary, as applicable. Following the
period set forth above, Indemnitee agrees to continue to serve in
such capacity at the will of the Company or such Subsidiary, as
applicable (or under separate agreement, if such agreement exists),
so long as he or she is duly appointed or elected in accordance
with the applicable provisions of the Articles of Association of
the Company or the
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corresponding constitutive document of such
Subsidiary, as applicable, or until such time as he or she tenders
his or her resignation in writing. Nothing contained in this
Agreement is intended to create in Indemnitee any right to
continued employment.
3. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Company shall pay all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
any action, suit or proceeding referenced in Section 1(a) or
(b) hereof or an enforcement action pursuant to
Section 3(c) hereof in advance of the final disposition of
such action, suit or proceeding. Indemnitee hereby undertakes to
repay such amounts advanced only if, and to the extent that, it
shall be finally adjudicated by a court order or judgment from
which no further right of appeal exists that Indemnitee is not
entitled to be indemnified by the Company as authorized hereby. The
advance of expenses to be made pursuant to this Section 3(a)
shall be paid by the Company to Indemnitee within twenty
(20) days following delivery of a written request therefor by
Indemnitee to the Company.
(b) Notice/Cooperation by
Indemnitee . Indemnitee shall, as a condition precedent to his
right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under
this Agreement. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as
shall be within Indemnitee’s power.
(c) Procedure . Any
indemnification and advances provided for in Section 1 and
this Section 3 shall be made no later than forty-five
(45) days after receipt of the written request of Indemnitee.
If a claim under this Agreement is not paid in full by the Company
within forty-five (45) days after a written request for
payment thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action against
the Company to recover the unpaid amount of the claim. Subject to
Section 12 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys’
fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in connection with any action, suit or proceeding
in advance of its final disposition) that Indemnitee has not met
the standards of conduct required under this Agreement, or which
make it permissible under applicable law, for the Company to
indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company and Indemnitee shall
be entitled to receive interim payments of expenses pursuant to
Section 3(a) hereof unless and until such defense may be
finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties’ intention
that if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its director(s), any committee or
subgroup of the director(s) or any group or committee appointed by
the director(s), independent legal counsel, or other officers of
the Company) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has
met the applicable standard of conduct required by applicable law,
nor an actual determination by the Company (including the
director(s), any committee or subgroup of the director(s) or any
group or committee appointed by the director(s), independent legal
counsel, or other officers of the
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Company) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of
conduct.
(d) Notice to Insurers . If,
at the time of the receipt of a notice of a claim pursuant to
Section 3(b) hereof, (i) the Company has liability
insurance in effect for the purpose of protecting directors or
officers of the Company and its Subsidiaries or (ii) the
relevant Subsidiary has liability insurance in effect for the
purpose of protecting directors or officers of such Subsidiary, the
Company or the relevant Su
