DIRECTOR INDEMNIFICATION AGREEMENT
Exhibit (e)(12)
This Director Indemnification Agreement, dated as of , (this “Agreement”), is made by and between STATS ChipPAC Ltd., a company registered in Singapore (Company
Registration No. 199407932D) (the “Company”), and (“Indemnitee”).
RECITALS:
A. Indemnitee is a director of the Company and his willingness to serve in such capacity is
predicated, in substantial part, upon the Company’s willingness to indemnify him to the fullest
extent permitted by the Singapore Companies Act (Cap.50) (the “Act”) and under any other law or
regulation applicable to the Company.
B. Therefore, in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee’s continued service as a director of the
Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in
order to provide such protection pursuant to express contract rights (intended to be enforceable
irrespective of, among other things, any amendment to the Company’s memorandum and articles of
association (“Constituent Documents”), any change in the composition of the Company’s Board of
Directors (the “Board”) or any change-in-control or business combination transaction relating to
the Company), the Company wishes to provide in this Agreement for the indemnification of and the
advancement of Expenses (as defined in Section 1(e)) to Indemnitee as set forth in this Agreement
and for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies.
C. In light of the considerations referred to in the preceding recitals, it is the Company’s
intention and desire that the provisions of this Agreement be construed liberally, subject to their
express terms, to maximize the protections to be provided to Indemnitee hereunder.
AGREEMENT:
NOW, THEREFORE, it is hereby agreed as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with initial capital letters:
(a) “Claim” means (i) any threatened, asserted, pending or completed claim, demand, action,
suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other;
and (ii) any threatened, pending or completed inquiry or investigation, whether made, instituted
or conducted by the Company or any other person, including without limitation any governmental
entity, that Indemnitee determines might lead to the institution of any such claim, demand,
action, suit or proceeding.
(b) “Controlled Affiliate” means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit, that is
directly or indirectly controlled by the Company. For purposes of this definition, “control”
means the capacity of a company to dominate the decision-making, directly or indirectly, in
relation to the financial and operating policies of a company. A person shall have a controlling
interest in the Controlled Affiliate if it:
| (i) | holds directly or indirectly 15% or more of the voting power in an entity; or |
| (ii) | in fact exercises control over the entity. |
(c) “Disinterested Director” means a director of the Company who is not and was not a party
to the Claim in respect of which indemnification is sought by Indemnitee.
(d) “Expenses” means attorneys’ and experts’ fees and expenses and all other costs and
expenses paid or payable in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to investigate, defend, be a witness in or
participate in (including on appeal), any Claim other than an Excluded Claim.
(e) “Excluded Claim” means any Claim against the Indemnitee based on or arising out of the
neglect, default, wilful misconduct, fraud or dishonesty of the Indemnitee in the discharge of his
duties or breach of fiduciary duties, liability in respect of which would attach against
Indemnitee by law and for which Indemnitee may not be exempted from liability or indemnified under
the Act.
(f) “Incumbent Directors” means the individuals who, as of the date hereof, are Directors of
the Company and any individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Company’s stockholders, or appointment, was approved by a vote of
at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of
the proxy statement of the Company in which such person is named as a nominee for director,
without objection to such nomination); provided, however, that an individual shall not be an
Incumbent Director if such individual’s election or appointment to the Board occurs as a result of
an actual or threatened election contest (as described in Rule 14a-12(c) of the Securities
Exchange Act of 1934) with respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of an individual, corporation,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934) other than the Board.
(g) “Indemnifiable Claim” means any Claim other than an Excluded Claim based upon, arising
out of or resulting from (i) any actual, alleged or suspected act or failure to act by Indemnitee
in his or her capacity as a director, officer, employee or agent of the Company or as a director,
officer, employee, member, manager, trustee or agent of any other corporation, limited liability
company, partnership, joint venture, trust or other entity or enterprise, whether or not for
profit, as to which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, member, manager, trustee or agent, (ii) any actual, alleged or suspected act or
failure to act by Indemnitee in respect of any business, transaction, communication, filing,
disclosure or other activity of the Company or any other entity or enterprise referred to in
clause (i) of this sentence, or (iii) Indemnitee’s status as a current or former director,
officer, employee or agent of the Company or as a current or former director, officer, employee,
member, manager, trustee or agent of the Company or any other
2
entity or enterprise referred to in clause (i) of this sentence or any actual, alleged or
suspected act or failure to act by Indemnitee in connection with any obligation or restriction
imposed upon Indemnitee by reason of such status. In addition to any service at the actual
request of the Company, for purposes of this Agreement, Indemnitee shall be deemed to be serving
or to have served at the request of the Company as a director, officer, employee, member, manager,
trustee or agent of another entity or enterprise if Indemnitee is or was serving as a director,
officer, employee, member, manager, trustee or agent of such entity or enterprise and (i) such
entity or enterprise is or at the time of such service was a Controlled Affiliate, (ii) such
entity or enterprise is or at the time of such service was an employee benefit plan (or related
trust) sponsored or maintained by the Company or a Controlled Affiliate, or (iii) the Company or a
Controlled Affiliate directly or indirectly caused or authorized Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such capacity.
(h) “Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim.
(i) “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 any Subsidiary) or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the Indemnitee under this Agreement, or
of other indemnitees under similar indemnification agreements), or (ii) any other named (or, as to
a threatened matter, reasonably likely to be named) party to the Indemnifiable Claim 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.
(j) “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines,
penalties (whether civil, criminal or other) and amounts paid in settlement, including without
limitation all interest, assessments and other charges paid or payable in connection with or in
respect of any of the foregoing.
(k) “Subsidiary” shall have the meaning ascribed to it in Section 5 of the Act.
2. Indemnification Obligation. Subject to Section 7, the Company shall indemnify, defend and
hold harmless Indemnitee, to the fullest extent permitted or required by the Act and under any
other law or regulation applicable to the Company, in effect on the date hereof or as such law as
may from time to time hereafter be amended to increase the scope of such permitted indemnification,
against any and all Indemnifiable Claims and Indemnifiable Losses; provided, however, that, except
as provided in Sections 4 and 20, Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Claim initiated by Indemnitee against the Company or any
Director or officer of the Company unless the Company has joined in or consented to the initiation
of such Claim. Nothing in this Agreement shall require the Company to indemnify Indemnitee for any
Excluded Claim.
3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company
prior to a final disposition of any Indemnifiable Claim of all Expenses relating to, arising out of
or resulting from any Indemnifiable Claim paid or incurred by Indemnitee or
3
which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee.
Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of
conduct. Without limiting the generality or effect of the foregoing, within five business days
after any request by Indemnitee, the Company shall, in accordance with such request (but without
duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an
amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses; provided
that Indemnitee shall repay, without interest any amounts actually advanced to Indemnitee that, at
the final disposition of the Indemnifiable Claim to which the advance related, were in excess of
amounts paid or payable by Indemnitee in respect of Expenses relating to, arising out of or
resulting from such Indemnifiable Claim.
4. Indemnification for Additional Expenses. Without limiting the generality or effect of the
foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if requested by
Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of
such request, any and all Expenses paid or incurred by Indemnitee or which Indemnitee determines
are reasonably likely to be paid or incurred by Indemnitee in connection with any Claim made,
instituted or conducted by Indemnitee for (a) indemnification or payment, advancement or
reimbursement of Expenses by the Company under any provision of this Agreement, or under any other
agreement or provision of the Company’s Constituent Documents now or hereafter in effect relating
to Indemnifiable Claims, and/or (b) recovery under any directors’ and officers’ liability insurance
policies maintained by the Company, regardless in each case of whether Indemnitee ultimately is
determined to be entitled to such indemnification, reimbursement, advance or insurance recovery, as
the case may be; provided, however, that Indemnitee shall return, without interest, any such
advance of Expenses (or portion thereof) which remains unspent at the final disposition of the
Claim to which the advance related.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Indemnifiable Loss, but not for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Procedure for Notification. To obtain indemnification under this Agreement in respect of
an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a written
request therefor, including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors’ and officers’ liability insurance in effect under which
coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company
shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the applicable policies. The
Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and
copies of all subsequent correspondence between the Company and such insurers regarding the
Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the
delivery or receipt thereof by the Company. The failure by Indemnitee to timely notify the Company
of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from any liability
hereunder unless, and only to the extent that, the Company did not otherwise learn of such
Indemnifiable Claim or Indemnifiable Loss and such failure results in forfeiture by the Company of
substantial defences, rights or insurance coverage.
4
7. Determination of Right to Indemnification.
(a) To the extent that Indemnitee shall have been successful in connection with any
application for relief under the Act or on the merits or otherwise in defence of any Indemnifiable
Claim or any portion thereof or in defence of any issue or matter therein, including without
limitation dismissal without prejudice, Indemnitee shall be indemnified against all Indemnifiable
Losses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with
Section 2 and no Applicable Standard Determination (as defined in Section 7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether Indemnitee has
satisfied any applicable standard of conduct under Singapore law that is a legally required
condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim or whether Indemnitee is
guilty of any breach which under the Act would preclude the Company from indemnifying Indemnitee
(an “Applicable Standard Determination”) shall be made as follows: (i) by a majority vote of the
Disinterested Directors, even if less than a quorum of the Board, (ii) if such Disinterested
Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a
majority vote of all Disinterested Directors, or (iii) if there are no such Disinterested
Directors, or if requested by Indemnitee, by Independent Counsel in a written opinion addressed to
the Board, a copy of which shall be delivered to Indemnitee. Indemnitee will cooperate with the
person or persons making such Applicable Standard Determination, including providing to such
person or persons, 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. The Company shall, to the extent permitted under
the Act and all applicable laws, indemnify and hold harmless Indemnitee against and, if requested
by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days
of such request, any and all costs and expenses (including attorneys’ and experts’ fees and
expenses) incurred by Indemnitee in so cooperating with the person or persons making such
Applicable Standard Determination.
(c) The Company shall use its reasonable best efforts to cause any Applicable Standard
Determination required under Section 7(b) to be made as promptly as practicable. If (i) the
person or persons empowered or selected under Section 7 to make the Applicable Standard
Determination shall not have made a determination within 30 days after the later of (A) receipt by
the Company of written notice from Indemnitee advising the Company of the final disposition of the
applicable Indemnifiable Claim (the date of such receipt being the “Notification Date”) and (B)
the selection of an Independent Counsel, if such determination is to be made by Independent
Counsel, that is permitted under the provisions of Section 7(e) to make such determination and
(ii) Indemnitee shall have fulfilled his/her obligations set forth in the second sentence of
Section 7(b), then Indemnitee shall be deemed to have satisfied the applicable standard of
conduct; provided that such 30-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person or persons making such determination in good faith requires such
additional time for the obtaining or evaluation or documentation and/or information relating
thereto.
5
(d) If (i) Indemnitee shall be entitled to indemnification hereunder against any
Indemnifiable Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has
satisfied any applicable standard of conduct or requirement under Singapore law is a legally
required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable
Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section 7(b) or (c) to have
satisfied any applicable standard of conduct or requirement under Singapore law which is a legally
required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable
Losses then the Company shall pay to Indemnitee, within five business days after the later of (x)
the Notification Date in respect of the Indemnifiable Claim or portion thereof to which such
Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such
Indemnifiable Losses resulted and (y) the earliest date on which the applicable criterion
specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the
amount of such Indemnifiable Losses.
(e) If a Applicable Standard Determination is to be made by Independent Counsel pursuant to
Section 7(b)(i), the Independent Counsel shall be selected by the Board of Directors, and the
Company shall give written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Applicable Standard Determination is to be made by
Independent Counsel pursuant to Section 7(b)(ii), the Independent Counsel shall be selected by
Indemnitee, and Indemnitee shall give written notice to the Company advising it of the identity of
the Independent Counsel so selected. In either case, Indemnitee or the Company, as applicable,
may, within five business days after receiving written notice of selection from the other, deliver
to the other a written objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria
set forth in the definition of “Independent Counsel” in Section 1(h), and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person or firm so selected shall act as Independent Counsel. If such written
objection is properly and timely made and substantiated, (i) 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 and (ii) the non-objecting party may, at its
option, select an alternative Independent Counsel and give written notice to the other party
advising such other party of the identity of the alternative Independent Counsel so selected, in
which case the provisions of the two immediately preceding sentences and clause (i) of this
sentence shall apply to such subsequent selection and notice. If applicable, the provisions of
clause (ii) of the immediately preceding sentence shall apply to successive alternative
selections. If no Independent Counsel that is permitted under the foregoing provisions of this
Section 7(e) to make the Applicable Standard Determination shall have been selected within 30 days
after the Company gives its initial notice pursuant to the first sentence of this Section 7(e) or
Indemnitee gives its initial notice pursuant to the second sentence of this Section 7(e), as the
case may be, either the Company or Indemnitee may go to Court for the 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 or firm selected by the
Court or by such other person as the Court shall designate, and the person or firm with respect to
whom all objections are so resolved or the person or firm so appointed will act as Independent
Counsel. In all events, the Company shall pay all of the reasonable fees and expenses of the
Independent Counsel incurred in connection with the Independent Counsel’s determination pursuant
to Section 7(b).
6
8. Presumption of Entitlement. In making any Applicable Standard Determination, the person or
persons making such determination shall presume that Indemnitee has satisfied the applicable
standard of conduct, and the Company may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any Applicable Standard Determination that is adverse to
Indemnitee may be challenged by the Indemnitee in the Court . No determination by the Company
(including by its directors or any Independent Counsel) that Indemnitee has not satisfied any
applicable standard of conduct shall be a defence to any Claim by Indemnitee for indemnification or
reimbursement or advance payment of Expenses by the Company hereunder or create a presumption that
Indemnitee has not met any applicable standard of conduct.
9. No Other Presumption. For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea
of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet
any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.
10. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other
rights Indemnitee may have under the Constituent Documents, or the substantive laws of the
Company’s jurisdiction of incorporation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise would
have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be
deemed to have such greater right hereunder and (b) to the extent that any change is made to any
Other Indemnity Provision which permits any greater right to indemnification than that provided
under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect
of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this
Agreement or any Other Indemnity Provision.
11. Liability Insurance and Funding. For the duration of Indemnitee’s service as a director
and/or officer of the Company, and thereafter for so long as Indemnitee shall be subject to any
pending or possible Indemnifiable Claim, the Company shall use commercially reasonable efforts
(taking into account the scope and amount of coverage available relative to the cost thereof) to
cause to be maintained in effect policies of directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Company that is at least substantially comparable in
scope and amount to that provided by the Company’s current policies of directors’ and officers’
liability insurance. The Company shall provide Indemnitee with a copy of all directors’ and
officers’ liability insurance applications, binders, policies, declarations, endorsements and other
related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment
on the same. Without limiting the generality or effect of the two immediately preceding sentences,
the Company shall not discontinue or significantly reduce the scope or amount of coverage from one
policy period to the next (i) without the prior approval thereof by a majority vote of the
Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such
discontinuation or significant reduction in the scope or amount of coverage is proposed there are
no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be
unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance
obtained by the Company, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits, subject to
7
the same limitations, as are accorded to the Company’s directors and officers most favorably
insured by such policy. The Company may, but shall not be required to, create a trust fund, grant
a security interest or use other means, including without limitation a letter of credit, to ensure
the payment of such amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities (other than Indemnitee’s successors), including any entity or
enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(f).
Indemnitee shall execute all papers reasonably required to evidence such rights (all of
Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be
reimbursed by or, at the option of Indemnitee, advanced by the Company).
13. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in connection therewith) under any
insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise (including
from any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim”
in Section 1(f)) in respect of such Indemnifiable Losses otherwise indemnifiable hereunder.
14. Defence of Claims. The Company shall be entitled to participate in the defence of any
Indemnifiable Claim or to assume the defence thereof, with counsel reasonably satisfactory to the
Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by
Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present
such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable
Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee
shall conclude that there may be one or more legal defences available to him or her that are
different from or in addition to those available to the Company, or (c) any such representation by
such counsel would be precluded under the applicable standards of professional conduct then
prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law
firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the
Company’s expense. The Company shall not be liable to Indemnitee under this Agreement for any
amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the
Company’s prior written consent. The Company shall not, without the prior written consent of the
Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the
Indemnitee is, or could have been, a party unless such settlement solely involves the payment of
money and includes a complete and unconditional release of the Indemnitee from all liability on any
claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee
shall unreasonably withhold its consent to any proposed settlement; provided that Indemnitee may
withhold consent to any settlement that does not provide a complete and unconditional release of
Indemnitee.
8
15. Successors and Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of the Company, by agreement in form and substance satisfactory to Indemnitee and his or her
counsel, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent the Company would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor will thereafter be deemed the
“Company” for purposes of this Agreement), but shall not otherwise be assignable or delegatable by
the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by the Indemnitee’s
personal or legal representatives, executors, administrators, heirs, distributees, legatees and
other successors.
(c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Sections 15(a) and 15(b). Without limiting the generality or
effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable,
whether by pledge, creation of a security interest or otherwise, other than by a transfer by the
Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted
assignment or transfer contrary to this Section 15(c), the Company shall have no liability to pay
any amount so attempted to be assigned or transferred.
16. Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by registered or certified mail, return receipt requested, postage prepaid
or one business day after having been sent for next-day delivery by a nationally recognized
overnight courier service, addressed to the Company (to the attention of the Secretary of the
Company) and to Indemnitee at the applicable address shown on the signature page hereto, or to such
other address as any party may have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon receipt.
17. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the laws of Singapore. The Company
and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of Singapore (and
the reference to Court in this Agreement shall be a reference to the Singapore courts) 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 only in the
Courts.
18. Validity. If any provision of this Agreement or the application of any provision hereof
to any person or circumstance is held invalid, unenforceable or otherwise illegal, the
9
remainder of this Agreement and the application of such provision to any other person or
circumstance shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent, and only to the extent, necessary to make it
enforceable, valid or legal. In the event that any court or other adjudicative body shall decline
to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as
contemplated by the immediately preceding sentence, the parties thereto shall take all such action
as may be necessary or appropriate to replace the provision so held to be invalid, unenforceable or
otherwise illegal with one or more alternative provisions that effectuate the purpose and intent of
the original provisions of this Agreement as fully as possible without being invalid, unenforceable
or otherwise illegal.
19. Miscellaneous. No provision of this Agreement may be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee and the
Company. No waiver by either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise, expressed or
implied with respect to the subject matter hereof have been made by either party that are not set
forth expressly in this Agreement. References to Sections are to references to Sections of this
Agreement.
20. Legal Fees and Expenses. It is the intent of the Company that Indemnitee not be required
to incur legal fees and or other Expenses associated with the interpretation, enforcement or
defence of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be extended to Indemnitee
hereunder. Accordingly, without limiting the generality or effect of any other provision hereof,
if it should appear to Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement (including its obligations under Section 3) or in the event that the Company
or any other person takes or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to
recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder,
the Company irrevocably authorizes the Indemnitee from time to time to retain counsel of
Indemnitee’s choice, at the expense of the Company as hereafter provided, to advise and represent
Indemnitee in connection with any such interpretation, enforcement or defence, including without
limitation the initiation or defence of any litigation or other legal action, whether by or against
the Company or any director, officer, shareholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to Indemnitee’s entering into an
attorney-client relationship with such counsel, and in that connection the Company and Indemnitee
agree that a confidential relationship shall exist between Indemnitee and such counsel. Without
respect to whether Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any and all attorneys’
and related fees and expenses incurred by Indemnitee in connection with any of the foregoing.
21. Certain Interpretive Matters. Unless the context of this Agreement otherwise requires,
(a) “it” or “its” or words of any gender include each other gender, (b) words using the singular or
plural number also include the plural or singular number, respectively, (c) the terms
10
“hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement,
(d) the terms “Article,” “Section,” “Annex” or “Exhibit” refer to the specified Article, Section,
Annex or Exhibit of or to this Agreement, (e) the terms “include,” “includes” and “including” will
be deemed to be followed by the words “without limitation” (whether or not so expressed), and (f)
the word “or” is disjunctive but not exclusive. Whenever this Agreement refers to a number of
days, such number will refer to calendar days unless business days are specified and whenever
action must be taken (including the giving of notice or the delivery of documents) under this
Agreement during a certain period of time or by a particular date that ends or occurs on a
non-business day, then such period or date will be extended until the immediately following
business day. As used herein, “business day” means any day other than Saturday, Sunday, a United
States federal holiday or a Singapore public holiday.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original but all of which together shall constitute one and the same
agreement.
[Signatures Appear On Following Page]
11
The parties have executed this Agreement as a Deed as of the date first above written.
The Common Seal of STATS ChipPAC Ltd was affixed hereto on in the presence of |
) ) ) ) ) ) |
|||
|
Name: |
||||
| Director | ||||
|
Name: |
||||
| Director/Secretary | ||||
Signed, sealed and delivered by [INDEMNITEE] [Address] |
) ) ) |
|||
|
[Indemnitee] |
12
