Exhibit 10.1
INDEMNITY
AGREEMENT
OF DOT HILL SYSTEMS
CORP.
THIS INDEMNITY
AGREEMENT (this “
Agreement ”) is made and entered into this
day of
, 2005 by and between DOT HILL SYSTEMS CORP. , a Delaware
corporation (the “ Company ”), and
(“ Agent ”).
RECITALS
WHEREAS, Agent performs a valuable service to the Company
in
capacity as
of the Company;
WHEREAS, the stockholders of the Company have adopted
Amended and Restated Bylaws, as amended (the “
Bylaws ”) providing for the indemnification of
the directors, officers, employees and other agents of the Company,
including persons serving at the request of the Company in such
capacities with other corporations or enterprises, as authorized by
the Delaware General Corporation Law (the “
DGCL ”);
WHEREAS, the Bylaws and the DGCL, by their non-exclusive
nature, permit contracts between the Company and its agents,
officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS, in order to induce Agent to continue to serve as
of the Company, the Company has determined and agreed to enter into
this Agreement with Agent;
NOW, THEREFORE,
in consideration of Agent’s
continued service as
after the date hereof, the parties hereto agree as
follows:
AGREEMENT
1.
Services to the
Company. Agent
will serve, at the will of the Company or under separate contract,
if any such contract exists, as
of the Company or as a director, executive officer or other
fiduciary of an affiliate of the Company (including any employee
benefit plan of the Company) faithfully and to the best of
Agent’s ability so long as Agent is duly elected and
qualified in accordance with the provisions of the Bylaws or other
applicable charter documents of the Company or such affiliate;
provided, however, that Agent may at any time and for any
reason resign from such position (subject to any contractual
obligation that Agent may have assumed apart from this Agreement)
and that the Company or any affiliate shall have no obligation
under this Agreement to continue Agent in any such
position.
2.
Indemnity of Agent.
The Company hereby agrees to
hold harmless and indemnify Agent to the fullest extent authorized
or permitted by the provisions of the Bylaws and the DGCL, as the
same may be amended from time to time (but only to the extent that
such amendment permits the Company to provide broader
indemnification rights than the Bylaws or the DGCL permitted prior
to adoption of such amendment).
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3.
Additional Indemnity.
In addition to and not in
limitation of the indemnification otherwise provided for herein,
and subject only to the exclusions set forth in Section 4
hereof, the Company hereby further agrees to hold harmless and
indemnify Agent:
(a)
against any and all expenses
(including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other
amounts that Agent becomes legally obligated to pay because of any
claim or claims made against or by Agent in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or
investigative (including an action by or in the right of the
Company) to which Agent is, was or at any time becomes a party, or
is threatened to be made a party, by reason of the fact that Agent
is, was or at any time becomes a director, officer, employee or
other agent of the Company, or is or was serving or at any time
serves at the request of the Company as a director, officer,
employee or other agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise;
and
(b)
otherwise to the fullest extent as
may be provided to Agent by the Company under the non-exclusivity
provisions of the DGCL and Section 43 of the
Bylaws.
4.
Limitations on Additional
Indemnity. No
indemnity pursuant to Section 3 hereof shall be paid by the
Company:
(a)
on account of any claim against
Agent solely for an accounting of profits made from the purchase or
sale by Agent of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of any federal,
state or local statutory law;
(b)
on account of Agent’s conduct
that is established by a final judgment as knowingly fraudulent or
deliberately dishonest or that constituted willful
misconduct;
(c)
on account of Agent’s conduct
that is established by a final judgment as constituting a breach of
Agent’s duty of loyalty to the Company or resulting in any
personal profit or advantage to which Agent was not legally
entitled;
(d)
for which payment is actually made
to Agent under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, bylaw or agreement, except
in respect of any excess beyond payment under such insurance,
clause, bylaw or agreement;
(e)
if indemnification is not lawful
(and, in this respect, both the Company and Agent have been advised
that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication); or
(f)
in connection with any proceeding
(or part thereof) initiated by Agent, or any proceeding by Agent
against the Company or its directors, officers, employees or other
agents, unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the
Board of Directors of the Company, (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the
powers vested in the Company under the DGCL, or (iv) the
proceeding is initiated pursuant to Section 9
hereof.
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5.
Continuation of
Indemnity. All
agreements and obligations of the Company contained herein shall
continue during the period Agent is a director, officer, employee
or other agent of the Company (or is or was serving at the request
of the Company as a director, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue
therea
