QUANTUM CORPORATION
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (" Agreement ") is made as
of this 1 st day of April, 2007, by and between Quantum
Corporation, a Delaware corporation (the "Company") and
(" Indemnitee
"), an officer or Director of the Company.
WHEREAS, the Company and Indemnitee recognize the increasing
difficulty in obtaining directors' and officers' liability
insurance, the significant increases in the cost of such insurance
and the general reductions in the coverage of such insurance;
and
WHEREAS, the Company and Indemnitee further recognize the
substantial increase in corporate litigation subjecting officers
and directors to expensive litigation risks at the same time that
liability insurance has been severely limited; and
WHEREAS, Indemnitee does not regard the current protection
available as adequate given the present circumstances, and
Indemnitee and other officers and directors of the Company may not
be willing to serve as officers and directors without adequate
protections; and
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve as
officers and directors of the Company and to indemnify its officers
and directors as to provide them with the maximum protection
permitted by law.
NOW, THEREFORE, the Company and Indemnitee hereby agree as
follows:
1.
Indemnification .
(a)
Third Party Proceedings . The Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee is
or was 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 threatened, pending or completed action, suit, proceeding
or alternative dispute mechanism, whether civil, criminal,
administrative or investigative (each a " Claim ") (other
than an action by or in the right of the Company) by reason of the
fact that Indemnitee is or was a director, officer, employee,
fiduciary or agent of the Company or any subsidiary of the Company,
by reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director,
officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), losses,
claims, damages, liabilities, 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) actually and reasonably incurred by Indemnitee in
connection with such Claim (including any appeals thereof), as well
as any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of payments under this
Agreement, including all interest, assessments and other charges
paid or payable in connection with or in respect of such expenses
(collectively, hereinafter " Expenses ") if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company and, with
respect to any criminal action, suit or proceeding, Indemnitee had
no reasonable cause to believe Indemnitee's conduct was unlawful.
The termination of any Claim 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 Company, and, with respect to any criminal action,
suit or proceeding, Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(b)
Proceedings by or in the Right of the Company . The Company
shall indemnify Indemnitee to the fullest extent permitted by law
if Indemnitee is or was 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 threatened, pending or completed Claim by or in
the right for the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee, fiduciary or
agent of the Company or any subsidiary of the Company by reason of
any action or inaction on the part of Indemnitee while an officer
or director or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer,
employee, fiduciary or agent of another corporation, partnership,
joint venture, trust or other enterprise, against Expenses incurred
by Indemnitee in connection with the defense or settlement of such
Claim if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company and except that no indemnification shall be made in
respect of any Claim under this Section 1(b) as to which Indemnitee
shall have been adjudged to be liable to the Company unless and
only to the extent that the Court of Chancery of the State of
Delaware or the court in which such Claim 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 Court of Chancery of the State of Delaware or
such other court shall deem proper.
(c)
Mandatory Payment of Expenses . To the extent that
Indemnitee has been successful on the merits or otherwise in
defense of any Claim referred to in Subsections (a) and (b) of the
Section 1 or the defense of any Claim therein, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by
Indemnitee in connection therewith.
(d)
Change of Control . The Company agrees that, if there is a
Change of Control of the Company (as defined in Section 9(c)
hereof) (other than a Change of Control which has been approved by
a majority of the Company's Board of Directors who were directors
immediately prior to such Change of Control), then, with respect to
all matters thereafter arising concerning the rights of Indemnitee
to payment of Expenses 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 (as defined
in Section 9(d) hereof) 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 fully indemnify such counsel
against any and all Expenses arising out of or relating to this
Agreement or its engagement pursuant hereto. Indemnitee shall
cooperate with the Independent Legal Counsel making such
determination with respect to Indemnitee's entitlement to
indemnification, including providing to such counsel 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 Independent Legal Counsel 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.
2.
Expenses: Indemnification Procedure .
(a)
Advancement of Expenses . The Company shall, to the extent
not prohibited by law, pay all Expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
any civil or criminal Claim referenced in Section l(a) or (b)
hereof in advance of the final disposition of such Claim. Advances
shall be made without regard to Indemnitee's ability to repay the
expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this Agreement.
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall finally adjudicated by a court
of competent jurisdiction in a court order or judgment from which
no further right of appeal either exists or is pursued within six
months from the date of such court order or judgment, that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid
by the Company to Indemnitee within thirty (30) days following
delivery of a written request therefor, together with evidence of
such Expenses incurred, by Indemnitee to the Company (which shall
include invoices received by Indemnitee in connection with such
Expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditures
made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice). Advances
shall be unsecured and interest free. This Section 2 shall not
apply to any claim made by Indemnitee for which indemnity is
excluded pursuant to Section 8.
(b)
Notice/Cooperation by Indemnitee . Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice in writing as soon as reasonably
practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to Quantum Corporation, 501
Sycamore Drive, Milpitas, California 95035 (Attn: Chief Executive
Officer) (or such address as the 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 Company. In addition, Indemnitee shall give the
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 (a) of this Section 2 shall be made no later than thirty
(30) days after receipt of the written request of Indemnitee. If a
Claim under this Agreement, under any statute, or under any
provision of the Company's Certificate of Incorporation or Bylaws
providing for indemnification is not paid in full by the Company
within thirty (30) 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 Company to
recover the unpaid amount of the Claim and, subject to Sections 8
and 12 of this Agreement, Indemnitee shall also be entitled to be
paid for the Expenses of bringing such Claim. It shall be a defense
to any such Claim (other than an action brought to enforce a Claim
for Expenses incurred in connection with any Claim in advance of
its final disposition) that Indemnitee has not met the standard of
conduct which makes 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 the Company, and
Indemnitee shall be entitled to receive interim payments and
Expenses pursuant to Subsection 2(a) unless and until such defense
may be finally adjudicated by a court of competent jurisdiction in
a court order or judgment from which no further right of appeal
either exists or is pursued within six months from the date of such
court order or judgment. It is the parties' intention that, if the
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 Company (including
its Boa
