INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “ Agreement
”) is made and entered into this ___day of ___, 2009, between
Flextronics Corporation (the “ Company
”), a Delaware corporation and a direct, wholly-owned
Subsidiary of Flextronics International Ltd., a Singapore
corporation (“ FIL ”), and ___, a
director and/or officer of the Company and/or FIL (the “
Indemnitee ”).
A. The
Indemnitee, an officer and/or director of FIL, performs a valuable
service in such capacity for FIL. The Company, as a direct,
wholly-owned Subsidiary of FIL, and FIL, as its stockholder,
derives a significant benefit from such service;
B. The Board
of Directors (the “ Board ”) of the Company
desires to retain highly competent individuals to serve as
directors, officers, employees and agents of the Company and to
protect such individuals against inordinate risks of claims and
actions against them arising out of their services to and
activities on behalf of the Company;
C. It is
reasonable, prudent and necessary for the Company to contractually
obligate itself to indemnify, and to advance expenses on behalf of,
individuals who serve as directors and officers of the Company or
who serve as directors, officers, employees or agents of FIL or
another entity at the request of the Company, to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company or such other entity free from undue concern that
they will not be so indemnified;
D The Singapore
Companies Act, Chapter 50, imposes certain restrictions on the
ability of FIL to indemnify and advance expenses to its officers
and directors, which restrictions are greater than those imposed by
the applicable laws of the State of Delaware;
E. Section 145
of the Delaware General Corporation Law (the “ Law
”), empowers the Company to indemnify by agreement its
officers, directors, employees and agents, and persons who serve,
at the request of the Company, as directors, officers, employees or
agents of other corporations or enterprises, and expressly provides
that the indemnification provided by the Law is not exclusive;
and
F. The
Indemnitee does not regard the protection available under the
Company’s Certificate of Incorporation and By-Laws,
FIL’s Articles of Association, the Indemnitee’s
indemnification agreement with FIL or insurance as adequate in the
present circumstances, and may not be willing to serve the Company,
or another entity at the request of the Company, as a director,
officer, employee or agent without adequate protection, and the
Company desires the Indemnitee to serve in such capacity. The
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of FIL and/or the Company or
another such entity on the condition that he or she be so
indemnified.
NOW,
THEREFORE, in consideration of the foregoing and the other
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1.
Agreement to Serve . The Indemnitee will serve or
continue to serve at the request of the Company as a director
and/or officer of FIL and/or a director and/or officer of the
Company or another Subsidiary of FIL, at the will of the Company
(or under separate agreement, if such agreement exists), so long as
he or she is duly appointed or elected and qualified in accordance
with the applicable provisions of the charter documents of FIL, the
Company or such other Subsidiary, as the case may be;
provided , however , that the Indemnitee may at any
time and for any reason resign from such position (subject to any
contractual obligation that the Indemnitee may have assumed apart
from this Agreement), and FIL, the Company and any such Subsidiary
shall have no obligation under this Agreement to continue the
Indemnitee in any such position. Nothing contained in this
Agreement is intended to create any right to continued employment
or other form of service for the Company, FIL or any Subsidiary by
the Indemnitee.
2.
Directors’ and Officers’ Insurance . The
Company shall obtain and maintain one or more policies of
directors’ and officers’ liability insurance (“
D&O Insurance ”) customary for similarly situated
companies, providing Agents of the Company with coverage on
customary terms and conditions, and to ensure the Company’s
performance of its indemnification obligations under this
Agreement. In all policies of D&O Insurance, the Indemnitee
shall be named as an insured in such a manner as to provide the
Indemnitee at least the same rights and benefits as are accorded to
the most favorably insured of the Company’s Agents. The
purchase, establishment and maintenance of D&O Insurance shall
not in any way limit or affect the rights and obligations of the
Company or 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 any other party
or parties under any such D&O Insurance.
3.
Mandatory Indemnification . Subject to Section 8
below:
3.1
Indemnity in Proceedings Other than 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 3.1 if the Indemnitee was or is made, or is threatened
to be made, a party to or a participant in (as a witness or
otherwise) any Proceeding (other than a Proceeding by or in the
right of the Company to procure a judgment in its favor) by reason
of the fact that he or she is or was an Agent, or by reason of
anything done or not done by him or her in such capacity. The
Indemnitee shall be indemnified under this Section 3.1 against
all Expenses and judgments, liabilities, Fines, penalties, amounts
paid in settlement, and all interest, assessments and other charges
paid or payable in connection with or in respect of any of the
foregoing (collectively, “ Losses ”) actually
and reasonably incurred by the Indemnitee or that may be incurred
on behalf of the Indemnitee in connection with such Proceeding, or
any action, discovery event, claim, issue or matter therein or
related thereto, if the Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe that his or her
conduct was unlawful;
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3.2
Indemnity in Proceedings by or in the Right of the
Company . The Company shall indemnify and hold harmless the
Indemnitee in accordance with the provisions of this
Section 3.2 if the Indemnitee was or is made, or is threatened
to be made, a party to or a participant in (as a witness or
otherwise) any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that he is or
was an Agent, or by reason of anything done or not done by him or
her in such capacity. The Indemnitee shall be indemnified under
this Section 3.2 against all Expenses actually and reasonably
incurred by him or her in connection with such Proceeding, or any
action, discovery event, claim, issue or matter therein or related
thereto, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests
of the Company; provided , however , that no
indemnification shall be made under this Section 3.2
(i) in respect of any claim, issue or matter as to which the
Indemnitee shall have been finally adjudged to be liable to the
Company, unless and only to the extent that the court in which the
proceeding is or was pending shall have determined upon application
that, in view of all of the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for
Expenses and then only to the extent that the court shall
determine;
3.3
Additional Indemnification . Notwithstanding any
limitations in Sections 3.1 or 3.2 hereof, the Company shall
indemnify and hold harmless the Indemnitee in accordance with the
provisions of this Section 3.3 to the fullest extent permitted
by law (including, without limitation (i) to the fullest
extent authorized or permitted by the provisions of the Law as in
effect as of the date of this Agreement that authorize or
contemplate indemnification by the Company of the Indemnitee in his
or her capacity as an Agent and (ii) to the fullest extent
authorized or permitted by any amendments or additions to or
replacements of such provisions which are adopted after the date of
this Agreement that increase the extent to which a corporation may
indemnify such a Person in such a capacity). The Indemnitee shall
be indemnified under this Section 3.3 against all Expenses and
Losses actually and reasonably incurred by the Indemnitee or that
may be incurred on behalf of the Indemnitee in connection with any
Proceeding, or any action, discovery event, claim, issue or matter
therein or related thereto, by reason of the fact that he or she is
or was an Agent, or by reason of anything done or not done by him
or her in such capacity; and
3.4
Expenses as a Witness . Notwithstanding the
foregoing, to the extent that, by reason of his or her status as an
Agent, the Indemnitee is a witness in any Proceeding to which the
Indemnitee is not a party, the Company shall indemnify and hold
harmless the Indemnitee against all Expenses actually and
reasonably incurred by the Indemnitee or on his or her behalf in
connection therewith.
4. Good
Faith; Partial Indemnification and Contribution
.
4.1
Good Faith . For the purposes of any determination of
“good faith” hereunder, the Indemnitee shall be deemed
to have acted in good faith if in taking such action the Indemnitee
relied on the records or books of account of the Company, FIL or
any Subsidiary of FIL (collectively, “ Flextronics
”), including without limitation financial statements, or on
information, opinions, reports or statements provided to the
Indemnitee by the officers or other employees of Flextronics in the
ordinary course of their duties, or on the advice of legal counsel
for Flextronics, or on information or records given or reports made
to Flextronics by an
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independent
certified public accountant or by an appraiser or other expert
selected by Flextronics, or by any other Person (including legal
counsel, accountants and financial advisors) as to matters the
Indemnitee reasonably believes are within such other Person’s
professional or expert competence and who has been selected with
reasonable care by or on behalf of Flextronics. In connection with
any determination as to whether the Indemnitee is entitled to
indemnification hereunder, the Indemnitee shall be entitled to the
presumption that he or she has satisfied the applicable standard of
conduct and is entitled to indemnification, and the burden of proof
shall be on the Company to establish, by clear and convincing
evidence, that the Indemnitee is not so entitled. The provisions of
this Section 4.1 shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set
forth in this Agreement. In addition, the knowledge or actions, or
failures to act, of any other Person serving Flextronics shall not
be imputed to the Indemnitee for the purposes of determining his or
her right to indemnification hereunder.
4.2
Partial Indemnification . If the Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses or Losses
incurred by him or her, but is not entitled to indemnification for
all of the total amount thereof, then the Company shall
nevertheless indemnify the Indemnitee for such total amount except
as to the portion thereof to which the Indemnitee is not entitled
to indemnification. For the avoidance of doubt, if the Indemnitee
is not wholly successful in any Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all
claims, issues or matters in any Proceeding, the Company shall
indemnify the Indemnitee in connection with each successfully
resolved claim, issue or matter. The Indemnitee’s
satisfaction of the applicable standard of conduct described in
Section 4.1 with respect to a particular claim, issue or
matter shall be considered a successful resolution as to such
claim, issue or matter. Furthermore, subject to the provisions of
the Law, for purposes of this Agreement, and without limitation,
the termination of any claim, issue or matter by dismissal with or
without prejudice shall be deemed to be a successful resolution as
to such claim, issue or matter. In any review or Proceeding to
determine the extent of indemnification, the Company shall bear the
burden to establish, by clear and convincing evidence, the lack of
a successful resolution of a particular claim, issue or matter and
which amounts sought in indemnity are allocable to claims, issues
or matters which were not successfully resolved.
4.3
Contribution . To the fullest extent permissible
under applicable law, if the indemnification and hold harmless
rights provided in Section 3 are unavailable to the Indemnitee
in whole or in part in respect of any Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in
such Proceeding), the Company shall pay, in the first instance, the
entire amount of any judgment or settlement of such Proceeding
without requiring the Indemnitee to contribute to such payment, and
the Company hereby waives and relinquishes any right of
contribution it may have against the Indemnitee. The Company shall
not enter into any settlement in any Proceeding in which the
Company is jointly liable with the Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a
full and final release of all claims asserted against the
Indemnitee. The Company hereby agrees to fully indemnify and hold
harmless the Indemnitee from any claims for contribution which may
be brought by any Agent of the Company other than the Indemnitee
who may be jointly liable with the Indemnitee.
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5.
Mandatory Advancement of Expenses . Subject to
Section 8 below, to the fullest extent permitted by law, the
Company shall advance all Expenses incurred or to be incurred by
the Indemnitee in connection with any Proceeding, including in
connection with the investigation, defense, settlement or appeal of
any such Proceeding, or any action, discovery event, claim, issue
or matter therein or related thereto, to which the Indemnitee was
or is made, or is threatened to be made, a party to or a
participant in (as a witness or otherwise) by reason of the fact
that he or she is or was an Agent, or by reason of anything done or
not done by him or her in such capacity. The Indemnitee hereby
undertakes to promptly repay such amounts advanced only if, and to
the extent that, it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Company under
the provisions of this Agreement, the Certificate of Incorporation
or By-Laws of the Company, the Law or otherwise. The advances to be
made hereunder shall be paid from time to time, whether prior to or
after the final disposition of any Proceeding, by the Company to
the Indemnitee within ten (10) days following delivery of a
written request therefor by the Indemnitee to the Company and the
presentation to the Company of an invoice or other substantiation
of the specific nature and amount of each Expense to be advanced by
the Company. Such advances shall be unsecured, interest free and
shall be made without regard to the Indemnitee’s ability to
repay the Expenses and without regard to the Indemnitee’s
ultimate entitlement to indemnification under the other provisions
of this Agreement. In the event that the Company advances an amount
in excess of any properly documented Expense, the Indemnitee shall
return such excess to the Company within ten (10) days of
(i) the discovery by the Indemnitee of the excess of such
advance or (ii) the notification by the Company of its
discovery of the excess of such advance. The Indemnitee’s
right to advancement of Expenses hereunder is absolute and shall
not be subject to any prior determination by any Person that the
Indemnitee has satisfied any applicable standard of conduct for
indemnification.
6.
Notice and Other Indemnification Procedures .
6.1
Notice and Request for Indemnification . The
Indemnitee agrees to promptly notify the Company in writing upon
being served with any summons, citation, subpoena, complaint,
indictment, information or other notice of the commencement of or
the threat of the commencement of any Proceeding, if the Indemnitee
believes that indemnification with respect thereto may be sought
from the Company under this Agreement. The failure of the
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. The Indemnitee shall at such time or at any
time thereafter deliver to the Company a written request for
indemnification in accordance with this Agreement. Any such request
may be delivered at such time or times as the Indem
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