INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT is made and entered into this ___day of
___, 2009 between Flextronics International Ltd., a Singapore
corporation (the “ Company ”), and ___, a
director and/or officer of the Company (the “
Indemnitee ”).
A. The
Indemnitee, an officer and/or director of the Company, performs a
valuable service in such capacity for Company;
B. The Board
of Directors (the “ Board ”) of the Company
desires to retain highly competent individuals to serve as
directors and officers or in other capacities and to protect such
individuals against inordinate risks of claims and actions against
them arising out of their service to and activities on behalf of
the Company;
C. The Board
has determined that the difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s
shareholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
D. It is
reasonable, prudent and necessary for the Company to contractually
obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified;
E. Section 172
of the Singapore Companies Act, Chapter 50 (the “
Act ”), permits the Company to indemnify by agreement
its officers and directors; and
G. The
Indemnitee does not regard the protection available under the
Company’s Articles of Association or insurance as adequate in
the present circumstances, and may not be willing to serve as an
officer or director 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 the Company on the condition that he or
she be so indemnified.
NOW, THEREFORE, in
consideration of Indemnitee’s continued service as a director
and/or officer of the Company after the date hereof, the parties
hereto agree as follows:
1.
Agreement to Serve . The Indemnitee will serve or
continue to serve as a director and/or officer of the Company, 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 Articles of Association of the Company; 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 the Company 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 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 directors and officers 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.
Indemnity of Indemnitee .
3.1
General Indemnification . Subject to Section 7
below and to the provisions of the Act, the Company shall hold
harmless and indemnify the 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 by reason of the fact
that he or she is or was a director and/or officer of the Company,
or by reason of anything done or not done by him or her in any such
capacity. 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 ”), which are actually and reasonably incurred
by the Indemnitee or that may be incurred on behalf of the
Indemnitee (i) in connection with any Proceeding, or any
action, discovery event, claim, issue or matter therein or related
thereto, if such indemnification is not against any liability which
by law would otherwise attach to him or her in respect of any
negligence, default, breach of duty or breach of trust of which the
Indemnitee may be guilty in relation to the Company, (ii) in
defending any Proceeding in which judgment is given in his or her
favor or in which he or she is acquitted or (iii) in
connection with any application under Sections 76A
(13) or 391 or any other provision of the Act, in which relief
is granted to him or her by the court.
3.2
Additional Indemnification . Notwithstanding any
limitations in Section 3.1 hereof but subject to
Section 7 below, the Company shall indemnify the Indemnitee in
accordance with the provisions of this Section 3.2 to the
fullest extent permitted by law (including, without limitation
(i) to the fullest extent authorized or permitted by the
provisions of the Act 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).
Indemnitee shall be
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indemnified
under this Section 3.2 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 any such capacity.
3.3
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.
Reliance; Partial Indemnification and Contribution
.
4.1
Reliance . The Indemnitee shall be deemed to have
satisfied the applicable standard of conduct to be entitled to
indemnification hereunder if in taking any action the Indemnitee
relied on the records or books of account of the Company or any
Subsidiary of the Company (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 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 the 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,
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subject to the
provisions of the Act, 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.
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 Articles of Association of
the Company, the Act 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
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