SMART MODULAR TECHNOLOGIES (WWH),
INC.
FORM OF AMENDED AND
RESTATED
INDEMNIFICATION
AGREEMENT
This Amended and
Restated Indemnification Agreement (the “ Agreement
”) is made as of December
, 2005 by and between SMART
Modular Technologies (WWH), Inc., an exempted company incorporated
under the laws of the Cayman Islands (the “ Company
”), and
(the “ Indemnitee ”).
WHEREAS, the
Company and the Indemnitee recognize the difficulty in obtaining
directors’ and officers’ liability insurance, the cost
of such insurance and the limited scope of coverage of such
insurance;
WHEREAS, the
Company and the Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers
and directors to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely
limited;
WHEREAS, the
Indemnitee does not regard the current protection available as
adequate under the present circumstances, and the Indemnitee and
other officers and directors of the Company may not be willing to
continue to serve as officers and directors without additional
protection;
WHEREAS, the
Company desires to attract and retain the services of highly
qualified individuals, such as the Indemnitee, to serve as officers
and directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection
permitted by law;
WHEREAS, the
Company and the Indemnitee previously entered into an
Indemnification Agreement dated as of March
, 2005 (the
“ Original Agreement ”); and
WHEREAS, the
parties to the Original Agreement desire to amend and restate the
Original Agreement and agree that this Agreement shall supersede
and replace the Original Agreement in its entirety;
NOW, THEREFORE,
the Company and the Indemnitee hereby agree as follows:
(a)
Third Party Actions . The Company shall indemnify and hold
harmless the Indemnitee if the Indemnitee was or is a party or is
threatened to be made a party to, or is involved in any threatened,
pending or completed
action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action, suit or proceeding by or in
the right of the Company) by reason of the fact that the Indemnitee
is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director or officer of
another 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 the
Indemnitee in connection with such action, suit or proceeding if
the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful. 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, in itself, create a presumption that the
Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action
or proceeding, had reasonable cause to believe that the
Indemnitee’s conduct was unlawful.
(b)
Actions by or in the Right of the Company . The Company
shall indemnify and hold harmless the Indemnitee if the Indemnitee
was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by or in the right of the Company to procure a
judgment in its favor by reason of the fact that the Indemnitee is
or was a director or officer of the Company, or is or was serving
at the request of the Company as a director or officer of another
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 the
Indemnitee in connection with such action, suit or proceeding if
the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, except that, if applicable law so provides, no
indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to be
liable to the Company unless and to the extent that the Delaware
Court of Chancery 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, the Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper. Notwithstanding any
other provision of this Agreement, the Indemnitee shall not be
indemnified hereunder for any expenses or amounts paid in
settlement with respect to any action to
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recover
short-swing profits under Section 16(b) of the Securities Exchange
Act of 1934, as amended.
(c)
Mandatory Payment of Expenses . To the extent that the
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 in defense
of any claim, issue or matter therein, the Indemnitee shall be
indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by the Indemnitee in connection
therewith.
(d)
Determination of Conduct . Any indemnification under
Subsections (a) and (b) of this Section 1 (unless
ordered by a court) shall be made by the Company upon a
determination that the indemnification of the Indemnitee is proper
in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in Subsections (a) and
(b) of this Section 1. Such determination shall be made
(1) by a majority vote of the disinterested directors, even
though less than a quorum, (2) by independent legal counsel in
a written opinion or (3) by the stockholders. Notwithstanding
the foregoing, the Indemnitee shall be entitled to contest any
determination as to the Indemnitee’s standard of conduct set
forth in Subsections (a) and (b) of this Section 1
by petitioning a court of competent jurisdiction.
(e)
Selection of Independent Counsel . If the determination of
entitlement to indemnification is to be made by independent counsel
pursuant to Subsection (d) of this Section 1, the
independent counsel shall be selected jointly by the Indemnitee and
the Company. In the event the Indemnitee and the Company cannot
agree on the selection of the independent counsel, either party may
petition the Delaware Court of Chancery or other court of competent
jurisdiction to resolve the issue or to make its own provisions for
the selection of independent counsel. The Company shall pay any and
all reasonable fees and expenses of the independent counsel
incurred in connection with acting pursuant to Section 1(d) hereof,
and the Company shall pay all reasonable fees and expenses incident
to the procedures of this Subsection (e), regardless of the manner
in which such independent counsel was selected or
appointed.
2.
Expenses; Indemnification Procedure .
(a)
Advancement of Expenses . Expenses incurred in connection
with any action, suit or proceeding by the Indemnitee, if the
Indemnitee reasonably believes that he is entitled to
indemnification pursuant to Subsection (a) or (b) of
Section 1 hereof, shall be paid by the Company in advance of
the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the Indemnitee to
repay such amount if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Company
pursuant to this Agreement (the “ Undertaking
”); provided , however , that the Company shall
not be required to advance expenses to the
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Indemnitee in
connection with any proceeding (or part thereof) initiated by the
Indemnitee unless the action, suit or proceeding was authorized in
advance by the board of directors of the Company; provided
further that no advance shall be made by the Company to the
Indemnitee in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by a majority vote of
disinterested directors or (ii) by independent legal counsel
in a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that the Indemnitee acted in bad faith or in a
manner that the Indemnitee did not believe to be in or not opposed
to the best interests of the Company. Nonetheless, the Indemnitee
shall be entitled to receive interim payments of expenses pursuant
to this Subsection (a) unless and until such defense may be
finally adjudicated by court order or judgment from which no
further right of appeal exists.
(b)
Notice/Cooperation by the Indemnitee . The Indemnitee shall,
as a condition precedent to his or her right to be indemnified
under this Agreement, give the Company notice in writing as soon as
practicable of any action, suit or proceeding involving the
Indemnitee for which indemnification will or could be sought under
this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as
the
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