Exhibit 10.17
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this ___ day of
__________ by and between New SAC, Seagate Technology Holdings, Seagate
Removable Storage Solutions Holdings, Seagate Software (Cayman) Holdings, Cayman
Islands companies (the "Companies" and each a "Company"), and _____________ (the
"Indemnitee").
WHEREAS, the Companies and Indemnitee recognize the potential for
variations in the marketplace for liability insurance covering risks faced by
directors and officers of limited liability companies, the potential for
significant increases in the cost of such insurance and its availability: and
WHEREAS, the Companies and Indemnitee further recognize the continuing
increase in litigation involving 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 Companies may not be willing to serve as directors
and officers without adequate protection: and
WHEREAS, the Companies desire to attract and retain the services of highly
qualified individuals, such as the Indemnitee, to serve as directors and
officers of the Companies and each Company desires to indemnify its directors
and officers so as to provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Companies and Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third Party Proceedings. Each Company shall 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 by or in the
right of such Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of such Company, or any affiliate of such
Company, by reason of any action or inaction on the part of Indemnitee while a
director, officer, employee or agent of such Company or by reason of the fact
that Indemnitee is or was serving at the request of such Company 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 such Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably
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believed to be in or not opposed to the best interests of such Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe 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, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the relevant Company,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that Indemnitee's conduct was unlawful. For the avoidance of doubt, each
Company shall indemnify the Indemnitee only for loss suffered in acting as
director for such Company without duplication.
(b) Proceedings By or in the Right of the Companies. Each Company shall
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of such Company or any affiliate of such Company to procure a judgment in
its favor by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of such Company, or any affiliate of such Company, by reason
of any action or inaction on the part of Indemnitee while a director or officer
or by reason of the fact that Indemnitee is or was serving at the request of
such Company as a director, officer, employee or agent of another company,
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) and amounts paid in settlements actually
and reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or suit if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of such Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to such Company unless and only to the extent that the
Grand Court of the Cayman Islands or the court in which such action or suit 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. For the avoidance of
doubt, each Company shall indemnify the Indemnitee only for loss suffered in
acting as director for such Company without duplication.
(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 any Company not serving
under an employment contract, he agrees to serve in such capacity at least for
the balance of the current fiscal year of such Company at the will of such
Company and not to resign voluntarily during such period without the written
consent of a majority of the Board of Directors of such Company. Following the
applicable period set forth above, Indemnitee agrees to continue to serve in
such capacity at the will of such Company (or under separate agreement, if such
agreement exists) so long as he is duly appointed or elected in accordance with
the applicable provisions of the Articles of Association of the relevant
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Company or any subsidiary of such Company or until such time as he tenders his
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. Each Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action, suit or proceeding referenced in
Section 1(a) or (b) hereof. Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the relevant Company as
authorized hereby. The advances to be made hereunder shall be paid by the
relevant Company to Indemnitee within twenty (20) days following delivery of a
written request therefor by Indemnitee to such Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the relevant
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. Notice to the relevant Company shall be directed to the relevant
Company at 920 Disc Drive, Scotts Valley, California 95066 (Attn: William L.
Hudson) (or such other address as each Company shall designate in writing to
Indemnitee). Notice shall be deemed received on the third business day after the
date postmarked if sent by domestic certified or registered mail, properly
addressed: otherwise notice shall be deemed received when such notice shall
actually be received by the relevant Company. In addition, Indemnitee shall give
the relevant 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,
or under any statute, is not paid in full by any 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 relevant Company to recover the unpaid amount of the claim and,
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 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 such Company and Indemnitee shall be entitled to receive
interim payments of expenses pursuant to Subsection 3(a) 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 any 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 relevant Company (including its director(s), any committee or
subgroup of the
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director(s) or any group or committee appointed by the director(s), independent
legal counsel, or other officers of such 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 relevant 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 such 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, any Company has liability insurance in
effect for the purpose of protecting directors or officers of such Company, such
Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
Such Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the any Company shall be obligated
under Section 3(a) hereof to pay the expenses of any proceeding against
Indemnitee, such Company, if appropriate, shall be entitled to assume the
defense of such proceeding, with counsel approved by Indemnitee, upon the
delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by such Company, such Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same proceeding, provided that (i) Indemnitee
shall have the right to employ his counsel in any such proceeding at
Indemnitee's expense: and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized by such Company, (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between such
Company and Indemnitee in the conduct of any such defense or (C) the Companies
shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of Indemnitee's counsel shall be at the
expense of such Company.
4. Additional Indemnification Rights: Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement, each
Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically authorized by
the other provisions of this Agreement, such Company's Articles of Association,
by-laws, operating agreement or by statute. In the event of any change, after
the date of this Agreement, in any applicable law, statute, or rule which
expands the right of a Cayman Islands Company to indemnify a director, officer,
employee or agent of such Company, such changes shall be, ipso facto, within the
purview of Indemnitee's rights and such Company's obligations, under this
Agreement. In the event of any change in any applicable law, statute or rule
which narrows the right of a Cayman Islands Company to indemnify a director,
officer, employee or agent of such Company, such changes, to the extent not
otherwise required by
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such law, statute or rule to be applied to this Agreement shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which an Indemnitee may be entitled
under the Articles of Association, any agreement, any vote of the members of the
Companies, the Companies Law (2000 Revision) of the Cayman Islands, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though he may have ceased to
serve in such capacity at the time of any action, suit or other covered
proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by any Company or Companies for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any civil
or criminal action, suit or proceeding, but not, however, for the total amount
thereof, such Company or Companies shall nevertheless indemnify Indemnitee for
the portion of such expenses, judgments, fines or penalties to which Indemnitee
is entitled.
6. Director and Officer Liability Insurance. Each Company shall, from time
to time, make the good faith determination whether or not it is practicable for
such Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing directors and officers of such Company
with coverage for losses from wrongful acts, or to ensure such Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, each Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In all policies of
director and officer liability insurance covering the directors and officers of
any Company, Indemnitee shall be named as an insured in such a manner to provide
the Indemnitee the same rights and benefits as are afforded to the most
favorably insured of such Company's directors and officers of the Companies.
Notwithstanding the foregoing, no Company shall have obligation to obtain or
maintain such insurance if such Company determines in good faith that such
insurance is not reasonably available, if the premium costs for such insurance
are disproportionate to the amount of coverage provided, if the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or Indemnitee is covered by similar insurance maintained
by a parent or subsidiary of such Company.
7. Severability. Nothing in this Agreement is intended to require or shall
be construed as requiring any Company to do or fail to do any act in violation
of applicable law. Any Company's inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 8. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then each Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
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8. Exceptions. Any other provision herein to the contrary notwithstanding,
the Companies shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to proceedings brought voluntarily by Indemnitee and not
by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or
law, but such indemnification or advancement of expenses may be provided by the
Companies in specific cases if the managing member finds it to be appropriate.
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred
by the indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous.
(c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, penalties,
and amounts paid in settlement) which have been paid directly to Indemnitee by
an insurance carrier under a policy of directors and officers liability
insurance maintained by any Company.
(d) Securities Laws. To indemnify Indemnitee for expenses, liabilities or
the payment of profits arising from or relating to purchase or sale of or offer
to purchase or sell any securities, whether on the open market or through a
public or private offering.
9. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the "Companies" or
"Company" shall include, in addition to the resulting Company or Companies or
corporations, any constituent limited liability company or corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, managers, members, officers, and employees
or agents, so that if Indemnitee is or was a director, manager, member, officer,
employee or agent of such constituent company or corporation, or is or was
serving at the request of such constituent company or corporation as a director,
manager, member, officer, employee or agent of another limited liability
company, corporation, partnership, joint venture, trust or other enterprise.
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving limited liability company
or corporation as Indemnitee would have with respect to such constituent limited
liability company or corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans and references to "serving at the request of any
Company" shall include any service as a director, officer, employee or agent of
the Company which imposes duties on, or involves services by such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries: and if Indemnitee acted in good faith and in a
manner
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Indemnitee reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner "not opposed to the best interests of such Company" or "not
opposed to the best interests of the relevant Company" as referred to in this
Agreement.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
11. Successors and Assigns. This Agreement shall be binding upon each
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
12. Attorney's Fees. In the event any action is instituted by Indemnitee
under this Agreement to enforce or interpret any of the terms hereof, Indemnitee
shall be entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee with respect to such action, unless as a
part of such action, the court of competent jurisdiction determines that each of
the material assertions made by Indemnitee as a basis for such action were not
made in good faith or were frivolous. In the event of an action instituted by or
in the name of any Company or Companies under this Agreement or to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
13. Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
14. Liability. For the avoidance of doubt, it is hereby agreed that each
Company shall only indemnify Indemnitee hereunder for loss incurred in acting as
director, officer or employee of such Company (or at the request of such
Company) and each Company shall be severally liable for such loss. In the event
that Indemnitee suffers loss in the course of acting as a director, officer or
employee of two or more Companies (or at the request of such Companies), such
Companies shall be jointly and severally liable to Indemnitee hereunder.
15. Consent to Jurisdiction. The Companies and Indemnitee each hereby
irrevocably consent to the jurisdiction of the Grand Court of the Cayman Islands
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought in the Grand Court of the Cayman Islands.
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16. Choice of Law. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the Cayman Islands.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NEW SAC SEAGATE TECHNOLOGY HOLDINGS
By: By:
--------------------------- --------------------------------------
Its: Its:
-------------------------- -------------------------------------
920 Disc Drive 920 Disc Drive
Scotts Valley, California 95066 Scotts Valley, California 95066
SEAGATE REMOVABLE SEAGATE SOFTWARE
STORAGE SOLUTIONS HOLDINGS (CAYMAN) HOLDINGS
By: By:
--------------------------- --------------------------------------
Its: Its:
-------------------------- -------------------------------------
920 Disc Drive 920 Disc Drive
Scotts Valley, California 95066 Scotts Valley, California 95066
AGREED TO AND ACCEPTED:
INDEMNITEE:
(name)
(signature)
(address)
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