Exhibit 10.10
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into this [__________ __], 2000
("Agreement"), by and between Manufacturers' Services Limited, a Delaware
corporation ("Company"), and [_____________] ("Indemnitee"):
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself to indemnify, and to advance expenses on behalf of, its
directors 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; and
WHEREAS, Indemnitee is willing to serve, continue to serve the Company
as a director and to take on additional service for or on its behalf on the
condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES BY INDEMNITEE. 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).
2. INDEMNIFICATION - GENERAL. The Company shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (a) as provided in
this Agreement and (b) (subject to the provisions of this Agreement) to
the fullest extent permitted by applicable law in effect on the date
hereof and as amended from time to time. The rights of Indemnitee
provided under the preceding sentence shall include, but shall not be
limited to, the rights set forth in the other Sections of this
Agreement.
3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
Indemnitee shall be entitled to the rights of indemnification provided
in this Section 3 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or a
participant in any threatened, pending or completed Proceeding (as
hereinafter defined), other than a Proceeding by or in the right of the
Company. Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, penalties, fines and amounts paid in
settlement (including all interest, assessments and other charges paid
or payable in connection with or in respect of such Expenses,
judgments, penalties, fines and amounts paid in settlement) actually
and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if he 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, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4
if, by reason of his Corporate Status, he is, or is threatened to be
made, a party to or a participant in any threatened, pending or
completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section, Indemnitee
shall be indemnified against all Expenses (including all interest,
assessments and other charges paid or payable in connection with or in
respect of such Expenses) actually and reasonably incurred by him or on
his behalf in connection with such Proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company; PROVIDED, HOWEVER, that indemnification
against such Expenses shall be made in respect of any claim, issue or
matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if and only to the extent that the
Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that
such indemnification may be made.
5. PARTIAL INDEMNIFICATION. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate
Status, a party to (or a participant in) and is successful, on the
merits or otherwise, in defense of any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If Indemnitee is not
wholly successful in defense of 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 all Expenses actually and reasonably incurred by him
or on his behalf in connection with each 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. If Indemnitee is
entitled under any provision of this agreement to indemnification by
the Company for some or a portion of the Expenses, judgments,
penalties, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection
with or in respect of such Expenses, judgments, penalties, fines and
amounts paid in settlement) actually and reasonably incurred by him or
on his behalf in connection with such Proceeding or any claim, issue or
matter therein, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion to
which the Indemnitee is entitled.
6. INDEMNIFICATION FOR ADDITIONAL EXPENSES.
1. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within seven
(7) business days of such request) advance such Expenses to
Indemnitee, which are incurred by Indemnitee in connection
with any action brought by Indemnitee for (i) indemnification
or
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advance payment of Expenses by the Company under this
Agreement or any other agreement or by-law of the Company
now or hereafter in effect; or (ii) recovery under any
directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance
recovery, as the case may be.
2. Notwithstanding any other provision of this Agreement, 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.
7. ADVANCEMENT OF EXPENSES. The Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within seven (7) days after the receipt by the
Company of a statement or statements from Indemnitee requesting such
advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and
shall include or be preceded or accompanied by an undertaking by or
on behalf of Indemnitee to repay any Expenses advanced if it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Notwithstanding the foregoing,
the obligation of the Company to advance Expenses pursuant to this
Section 7 shall be subject to the condition that, if, when and to
the extent that the Company determines that Indemnitee would not be
permitted to be indemnified under applicable law, the Company shall
be entitled to be reimbursed, within thirty (30) days of such
determination, by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; PROVIDED, HOWEVER,
that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable
law, any determination made by the Company that Indemnitee would not
be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the
Company for any advance of Expenses until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
1. To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including
therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled
to indemnification. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee
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has requested indemnification.
2. Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 8(a) hereof, a
determination, if required by applicable law, with respect to
Indemnitee's entitlement thereto shall be made in the specific
case: (i) if a Change in Control (as hereinafter defined)
shall have occurred, by Independent Counsel (as hereinafter
defined) in a written opinion to the Board of Directors, a
copy of which shall be delivered to Indemnitee; or (ii) if a
Change of Control shall not have occurred, (A) by a majority
vote of the Disinterested Directors (as hereinafter defined),
even though less than a quorum of the Board, or (B) if there
are no such Disinterested Directors or, if such Disinterested
Directors so direct, by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to
Indemnitee or (C) if so directed by the Board, by the
stockholders of the Company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within seven (7) days after such
determination. The Company and the Indemnitee shall each
cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons
or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected
from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as
to Indemnitee's entitlement to indemnification), and the
Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.
3. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant
to Section 8(b) hereof, the Independent Counsel shall be
selected as provided in this Section 8(c). If a Change of
Control shall not have occurred, the Independent Counsel shall
be selected by the Board of Directors, and the Company shall
give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change of Control
shall have occurred, the Independent Counsel shall be selected
by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event
the preceding sentence shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of
the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within 10
days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection; PROVIDED,
HOWEVER, that such objection may be asserted only on the
ground that the Independent Counsel so
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selected does not meet the requirements of "Independent
Counsel" as defined in Section 17 of this Agreement, and the
objection shall set forth with particularity the factual basis
of such assertion. If such written objection is so made and
substantiated, the Independent Counsel so selected may not
serve as Independent Counsel unless and until such objection
is withdrawn or a court has determined that such objection is
without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant
to Section 8(a) hereof, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee
may petition the Court of Chancery of the State of Delaware
for resolution of any objection which shall have been made by
the Company or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the Court or by such other
person as the Court shall designate, and the person with
respect to whom all objections are so resolved or the person
so appointed shall act as Independent Counsel under Section
8(b) hereof. The Company shall pay any and all reasonable fees
and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to
Section 8(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section
8(c), regardless of the manner in which such Independent
Counsel was selected or appointed, and if such Independent
Counsel was selected or appointed by the Indemnitee or the
Court, shall provide such Independent Counsel with such
retainer as may requested by such counsel. Upon the due
commencement of any judicial proceeding or arbitration
pursuant to Section 10(a)(iii) of this Agreement, Independent
Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
4. The Company shall not be required to obtain the consent of the
Indemnitee to the settlement of any Proceeding which the
Company has undertaken to defend if the Company assumes full
and sole responsibility for such settlement and the settlement
grants the Indemnitee a complete and unqualified release in
respect of the potential liability. The Company shall not be
liable for any amount paid by the Indemnitee in settlement of
any Proceeding that is not defended by the Company, unless the
Company has consented to such settlement, which consent shall
not be unreasonably withheld.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
1. In making a determination with respect to entitlement to
indemnification or the advancement of expenses hereunder, the
person or persons or entity making such determination shall
presume that Indemnitee is entitled to indemnification or
advancement of expenses under this Agreement if Indemnitee has
submitted a request for indemnification or the advancement of
expenses in accordance with
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Section 8(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection
with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the
failure of the Company (including its board of directors or
independent legal counsel) to have made a determination prior
to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Company (including its board of
directors or independent legal counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that Indemnitee
has not met the applicable standard of conduct.
2. If the person, persons or entity empowered or selected under
Section 8 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the
Company of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; PROVIDED, HOWEVER, that
such 60-day period may be extended for a reasonable time, not
to exceed an additional thirty (30) days, if the person,
persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such
additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and
provided, further, that the foregoing provisions of this
Section 9(b) shall not apply (i) if the determination of
entitlement to indemnification is to be made by the
stockholders pursuant to Section 8(b) of this Agreement and if
(A) within fifteen (15) days after receipt by the Company of
the request for such determination the Board of Directors has
resolved to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such
determination is made thereat, or (B) a special meeting of
stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after
having been so called and such determination is made thereat,
or (ii) if the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8(b)
of this Agreement.
3. The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction,
or upon a plea of NOLO CONTENDERE or its equivalent, shall not
(except as otherwise expressly provided in this
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Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct
was unlawful.
4. RELIANCE AS SAFE HARBOR. For purposes of any determination of
Good Faith, Indemnitee shall be deemed to have acted in Good
Faith if Indemnitee's action is based on the records or books
of account of the Company or relevant enterprise, including
financial statements, or on information supplied to Indemnitee
by the officers of the Company or relevant enterprise in the
course of their duties, or on the advice of legal counsel for
the Company or relevant enterprise or on information or
records given in reports made to the Company or relevant
enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by
the Company or relevant enterprise. The provisions of this
Section 9(d) 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.
5. ACTIONS OF OTHERS. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the
Company or relevant enterprise shall not be imputed to
Indemnitee for purposes of determining the right to
indemnification under this Agreement.
10. REMEDIES OF INDEMNITEE.
1. In the event that (i) a determination is made pursuant to
Section 8 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 7 of this
Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b)
of this Agreement within 90 days after receipt by the Company
of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5 or 6 of this
Agreement within ten (10) days after receipt by the Company of
a written request therefor, or (v) payment of indemnification
is not made within ten (10) days after a determination has
been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by the Court
of Chancery of the State of Delaware, or any other court of
competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to
be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association.
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2. In the event that a determination shall have been made
pursuant to Section 8(b) of this Agreement that Indemnitee is
not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 shall be
conducted in all respects as a DE NOVO trial, or arbitration,
on the merits and Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall
have occurred, in any judicial proceeding or arbitration
commenced pursuant to this Section 10, the Company shall have
the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may
be.
3. If a determination shall have been made pursuant to Section
8(b) of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration
commenced pursuant to this Section 10, absent (i) a
misstatement by Indemnitee of a material fact, or an omission
of a material fact necessary to make Indemnitee's statement
not materially misleading in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law.
4. In the event that Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company against,
any and all expenses (of the types described in the definition
of Expenses in Section 17 of this Agreement) actually and
reasonably incurred by him in such judicial adjudication or
arbitration, but only if he prevails therein. If it shall be
determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the
expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately
prorated. The Company shall indemnify Indemnitee against any
and all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after receipt by the Company of a
written request therefor) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advance of
Expenses from the Company under this Agreement or under any
directors' or officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such
indemnification, advancement of Expenses or insurance
recovery, as the case may be.
5. The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section
10 that the procedures and
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presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the
provisions of this Agreement.
11. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
1. The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the Certificate of
Incorporation, the By-Laws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken
or omitted by such Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal. To the extent that a
change in the General Corporation Law of the State of
Delaware, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would
be afforded currently under the Company's By-Laws and this
Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative
and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
2. To the extent that the Company maintains an insurance policy
or policies providing liability insurance for directors,
officers, employees or agents of the Company or of any other
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person serves at
the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms
to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or
policies.
3. In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all
papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary
to enable the Company to bring suit or enforce such rights.
4. The Company shall not be liable under this Agreement to make
any payment of
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amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
5. The Company's obligation to indemnify or advance expenses
hereunder to Indemnitee who is or was serving at the request
of the Company as a director, officer, employee or agent of
any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by
any amount Indemnitee has actually received as indemnification
or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or
other enterprise.
12. DURATION OF AGREEMENT.
1. This Agreement shall continue until and terminate upon the
later of: (a) 10 years after the date that Indemnitee shall
have ceased to serve as a director of the Company (or of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at
the request of the Company); or (b) the final termination of
any Proceeding then pending in respect of which Indemnitee is
granted rights of indemnification or advancement of expenses
hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 10 of this Agreement relating thereto.
2. This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries) and
Indemnitee. Indemnitee specifically acknowledges that
Indemnitee's employment with the Company (or any of its
subsidiaries), if any, is at will, and the Indemnitee may be
discharged at any time for any reason, with or without cause,
except as may be otherwise provided in any written employment
contract between Indemnitee and the Company (or any of its
subsidiaries), other applicable formal severance policies duly
adopted by the Board, or, with respect to service as a
director or officer of the Company, by the Company's
Certificate of Incorporation, By-laws, and the General
Corporation Law of the State of Delaware. The foregoing
notwithstanding, this Agreement shall continue in force as
provided above after Indemnitee has ceased to serve as a
director of the Company.
3. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.
13. SEVERABILITY. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision
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held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; (b) such provision or provisions shall be deemed
reformed to the extent necessary to conform to applicable law and to
give the maximum effect to the intent of the parties hereto; and (c) to
the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested
thereby.
14. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.
Except as provided in Section 6(a) of this Agreement, Indemnitee shall
not be entitled to indemnification or advancement of Expenses under
this Agreement with respect to any Proceeding brought by Indemnitee
(other than a Proceeding by Indemnitee to enforce his rights under this
Agreement), or any claim therein, unless the bringing of such
Proceeding or making of such claim shall have been approved by the
Board of Directors.
15. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence
of this Agreement.
16. HEADINGS. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
17. DEFINITIONS. For purposes of this Agreement:
1. "Change in Control" shall have the meaning set forth on
Exhibit A.
2. "Corporate Status" describes the status of a person who is or
was a director, officer, employee, fiduciary or agent of the
Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the
Company.
3. "Disinterested Director" means a director of the company who
is not and was not a party to the Proceeding in respect of
which indemnification is sought by Indemnitee.
4. "Effective Date" means [_________ __], 2000.
5. "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs,
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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.
6. "Independent Counsel" means a law firm, or a member of 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, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, 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 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.
7. "Proceeding" includes 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 by or in the right of the Corporation or otherwise and
whether civil, criminal, administrative or investigative, in
which Indemnitee was, is, may be or will be involved as a
party or otherwise, by reason of the fact that Indemnitee is
or was a director or officer of the Company, by reason of any
action taken by him or of any inaction on his part while
acting as director or officer 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 or other
enterprise; in each case whether or not he is acting or
serving in any such capacity at the time any liability or
expense is incurred for which indemnification or advancement
of expenses can be provided under this Agreement; except one
(i) initiated by an Indemnitee pursuant to Section 10 of this
Agreement to enforce his right under this Agreement or (ii)
pending on or before the Effective Date.
18. ENFORCEMENT.
1. The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it
hereby in order to induce Indemnitee to serve as a director
and/or officer of the Company, and the
12
Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director and/or officer of the
Company.
2. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral,
written and implied, between the parties hereto with respect
to the subject matter hereof.
19. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of
the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
20. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of 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.
21. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly
given if (i) delivered by hand and receipted for by the party to whom
said notice or other communication shall have been direct, or (ii)
mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:
1. If to Indemnitee to:
[DIRECTOR NAME]
[ADDRESS]
2. If to the Company to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
22. CONTRIBUTION. To the fullest extent permissible under applicable law,
if the indemnification provided for in this Agreement is unavailable to
Indemnitee for any
13
reason whatsoever, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid
in settlement and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or
(ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s)
and/or transaction(s).
23. GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS. This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware, without regard to its conflict
of laws rules. Except with respect to any arbitration commenced by
Indemnitee pursuant to Section 10(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court of the State of
Delaware (the "Delaware Court"), and not in any other state or federal
court in the United States of America or any court in any other
country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of
or in connection with this Agreement, (iii) appoint, to the extent such
party is not a resident of the State of Delaware, irrevocably
[_______________] as its agent in the State of Delaware for acceptance
of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served
upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in
the Delaware Court, and (v) waive, and agree not to plead or to make,
any claim that any such action or proceeding brought in the Delaware
Court has been brought in an improper or otherwise inconvenient forum.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: MANUFACTURERS' SERVICES LIMITED
By:
--------------------------------- ---------------------------------------
Name: Name:
Title:
ATTEST: INDEMNITEE
--------------------------------- ---------------------------------------
Name: Name:
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EXHIBIT A
CHANGE OF CONTROL. For the purposes of this Agreement, a "Change of
Control" means:
1. The acquisition by any person, corporation,
partnership, limited liability company or other
entity (a "Person", which term shall include a group
within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) of
ultimate beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly of 30% or more of either (i)
the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or
(ii) the combined voting power of the then
outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (a),
the following acquisitions shall not constitute a
Change of Control: (i) any such acquisition directly
from the Company, except for acquisition of
securities upon conversion of other securities of the
Company (ii) any such acquisition by the Company,
(iii) any such acquisition by any employee benefit
plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the
Company or (iv) any such acquisition by any
corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (c) of
this Exhibit A; or
2. Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
Board; provided, however, that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election, by the
Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the
Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result
of an actual or threatened election contest with
respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board; or
3. Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company in one
or a series of transactions (a "Business
Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of
the individuals and entities who were the beneficial
16
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
immediately following such Business Combination more
than 50% of, respectively, the outstanding shares of
common stock and the combined voting power of the
then outstanding voting securities entitled to vote
generally in the election of directors, as the case
may be, of the corporation resulting from such
Business Combination (including, without limitation,
a corporation which as a result of such transaction
owns the Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company
Common Stock and outstanding Company Voting
Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation
resulting from such Business Combination) ultimately
beneficially owns, directly or indirectly, 30% or
more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such
Business Combination or the combined voting power of
the then outstanding voting securities of such
corporation except to the extent that such ownership
existed prior to the Business Combination and (iii)
at least a majority of the members of the board of
directors of the corporation resulting from such
Business Combination were members of the Incumbent
Board at the time of the execution of the initial
agreement, or of the action of the Board, providing
for such Business Combination; or
4. Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
17