Exhibit 99.01
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;
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; and
WHEREAS, in view of the considerations set forth above, the
Company desires that, effective upon consummation of the Merger,
Indemnitee shall be indemnified by the Company as set forth
herein.
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.
(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(c) 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.
(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.
(a) Advancement of Expenses. The
Company shall advance all Expenses incurred by Indemnitee. The
advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than 30
days after written demand by Indemnitee therefor to the Company.
Indemnitee hereby
