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EXHIBIT 10.47
ADAPTEC, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of
_______________, 20__, by and between Adaptec, Inc., a Delaware
corporation (the "Company" or "Adaptec Delaware"), and
_____________ (Name) ("Indemnitee").
WHEREAS, in order to induce Indemnitee to provide, or continue
to provide, services to the Company, the Company wishes to provide
for the indemnification of, and advancement of expenses to,
Indemnitee to the maximum extent permitted by law;
WHEREAS, Indemnitee does not regard the current protection
available as adequate under the present circumstances, and the
Indemnitee and other directors, officers, employees, agents and
fiduciaries of the Company may not be willing to continue to serve
in such capacities without additional protection;
WHEREAS, the Company and Indemnitee recognize the continued
difficulty in obtaining liability insurance for the Company's
directors, officers, employees, agents and fiduciaries, the
significant increases in the cost of such insurance and the general
reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf of, Indemnitee to the fullest extent permitted
by applicable law so that Indemnitee will serve or continue to
serve the Company free from undue concern that he or she will not
be so indemnified.
NOW, THEREFORE, in consideration of the foregoing and
Indemnitee's agreement to provide, or continue to provide, services
to the Company, the Company and Indemnitee hereby agree as set
forth below.
1. Certain Definitions.
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(a) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company acting in such capacity or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than 20% of the total voting power
represented by the Company's then outstanding Voting Securities,
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of
the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders
was approved by a vote of at least two thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any
other corporation other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of
related transactions) all or substantially all of the Company's
assets.
(b) "Claim" shall mean any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, whether formal
or informal, investigative or other.
(c) References to the "Company" shall include, in addition to
Adaptec Delaware, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
to which Adaptec Delaware (or any of its wholly owned subsidiaries)
is a party which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers,
employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, Indemnitee shall
stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.
(d) "Expenses" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and obligations
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to defend, to be a witness in or to participate in, any action,
suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation, whether formal or informal),
judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) of any Claim regarding any
Indemnifiable Event and any federal, state, local or foreign taxes
imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
(e) "Expense Advance" shall mean an advance payment of Expenses
to Indemnitee pursuant to Section 3(a).
(f) "Indemnifiable Event" shall mean any event or occurrence
related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or any subsidiary of
the Company, or is or was serving at the request of the Company as
a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity.
(g) "Independent Legal Counsel" shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section
2(b) hereof, who shall not have otherwise performed services for
the Company or Indemnitee within the last three years (other than
with respect to matters concerning the rights of Indemnitee under
this Agreement, or of other indemnitees under similar indemnity
agreements).
(h) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan;
and references to "serving at the request of the Company" shall
include any service as a director, officer, employee, agent or
fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a
manner 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 the Company" as referred to in this
Agreement.
(i) "Voting Securities" shall mean any securities of the Company
that vote generally in the election of directors.
2. Indemnification.
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(a) Indemnification of Expenses. The Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee was
or is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant
in, any Claim by reason of (or arising in part out of) any
Indemnifiable Event against Expenses, including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses. Such payment of Expenses shall be made
by the Company as soon as practicable but in any event no later
than five (5) business days after written demand by Indemnitee
therefor is presented to the Company.
(b) Change in Control. The Company agrees that if there is a
Change in Control of the Company (other than a Change in Control
which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in
Control), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to payments of Expenses and
Expense Advances under this Agreement or any other agreement or
under the Company's Certificate of Incorporation or Bylaws as now
or hereafter in effect, Independent Legal Counsel, if desired by
Indemnitee, shall be selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to
the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable
law and the Company agrees to abide by such opinion. The Company
agrees to pay the reasonable fees of the Independent Legal Counsel
referred to above and to indemnify fully such counsel against any
and all Expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its
engagement pursuant hereto. Notwithstanding any other provision of
this Agreement, the Company shall not be required to pay Expenses
of more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal
Counsel shall be the Independent Legal Counsel for any or all other
Indemnitees unless (i) the Company otherwise determines or (ii) any
Indemnitee shall provide a written statement setting forth in
detail a reasonable objection to such Independent Legal Counsel
representing other Indemnitees.
(c) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 9 hereof, to the
extent that Indemnitee has been successful on the merits or
otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any Claim regarding any
Indemnifiable Event, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee in connection therewith.
3. Expenses; Indemnification Procedure.
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