EXHIBIT 10.1


 


INDEMNITY
AGREEMENT


 


This Indemnity Agreement (this “Agreement”),
dated as of                                    ,
2009, is made by and between Nexsan Corporation, a Delaware corporation (the “Company”), and                                                   ,
a director and/or officer of the Company (the “Indemnitee”).


 


RECITALS


 


A.                                   The Company is aware that competent and
experienced persons are increasingly reluctant to serve as directors or
officers of corporations unless they are protected by comprehensive liability
insurance and/or indemnification, due to increased exposure to litigation costs
and risks resulting from their service to such corporations, and because the
exposure frequently bears no reasonable relationship to the compensation of
such directors and officers;


 


B.                                     Based on their experience as business
managers, the Board of Directors of the Company (the “Board”)
has concluded that, to retain and attract talented and experienced individuals
to serve as officers and directors of the Company, and to encourage such
individuals to take the business risks necessary for the success of the
Company, it is necessary for the Company contractually to indemnify officers
and directors and to assume for itself maximum liability for expenses and damages
in connection with claims against such officers and directors in connection
with their service to the Company;


 


C.                                     Section 145  of
the General Corporation Law of Delaware, under which the Company is organized
(the “Law”), empowers the Company
to indemnify by agreement its officers, directors, employees and agents, and
persons who serve, at the request of the Company, as directors, officers,
employees or agents of other corporations or enterprises, and expressly
provides that the indemnification provided by the Law is not exclusive; and


 


D.                                    The Company desires and has requested the
Indemnitee to serve or continue to serve as a director or officer of the
Company free from undue concern for claims for damages arising out of or
related to such services to the Company.


 


NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:


 


1.                                      Definitions.


 


1.1                               Agent. 
For the purposes of this Agreement, “agent”
of the Company means any person who is or was a director or officer of the Company
or a subsidiary of the Company; or is or was serving at the request of, for the
convenience of, or to represent the interest of the Company or a subsidiary of
the Company as a director or officer of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise or an
affiliate of the Company; or was a director or officer of a foreign or domestic
corporation which was a predecessor corporation of the Company, including,
without limitation, Nexsan Corporation, a 


 

















 


Delaware corporation, or
was a director or officer of another enterprise or affiliate of the Company at
the request of, for the convenience of, or to represent the interests of such
predecessor corporation.  The term “enterprise” includes any employee
benefit plan of the Company, its subsidiaries, affiliates and predecessor
corporations.


 


1.2                               Expenses. 
For purposes of this Agreement, “expenses”
includes all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and related disbursements
and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal of a
proceeding or establishing or enforcing a right to indemnification or advancement
of expenses under this Agreement, Section 4 or otherwise.


 


1.3                               Proceeding. 
For the purposes of this Agreement, “proceeding”
means any threatened, pending or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type
whatsoever.


 


1.4                               Subsidiary. 
For purposes of this Agreement, “subsidiary”
means any corporation of which more than fifty percent (50%) of the outstanding
voting securities is owned directly or indirectly by the Company, by the Company
and one or more of its subsidiaries or by one or more of the Company’s
subsidiaries.


 


2.                                      Agreement to Serve.  The Indemnitee
agrees to serve and/or continue to serve as an agent of the Company, at the
will of the Company (or under separate agreement, if such agreement exists), in
the capacity the Indemnitee currently serves as an agent of the Company,
faithfully and to the best of his ability, so long as he or she is duly
appointed or elected and qualified in accordance with the applicable provisions
of the charter documents of the Company or any subsidiary of the Company; provided,
however, that the Indemnitee may at any time and for any reason resign
from such position (subject to any contractual obligation that the Indemnitee
may have assumed apart from this Agreement), and the Company or any subsidiary
shall have no obligation under this Agreement to continue the Indemnitee in any
such position.


 


3.                                      Directors’ and Officers’
Insurance.  The Company shall, to the extent that the
Board determines it to be economically reasonable, maintain a policy of
directors’ and officers’ liability insurance (“D&O
Insurance”), on such terms and conditions as may be approved by
the Board.


 


4.                                      Mandatory Indemnification.  Subject to Section 9
below, the Company shall indemnify the Indemnitee:


 


4.1                               Third Party Actions. 
If the Indemnitee is a person who was or is a party or is threatened to
be made a party to any proceeding (other than an action by or in the right of
the Company) by reason of the fact that he is or was an agent of the Company,
or by reason of anything done or not done by him in any such capacity, against
any and all expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of such proceeding if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests 


 

















 


of the Company and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; and


 


4.2                               Derivative Actions. 
If the Indemnitee is a person who was or is a party or is threatened to
be made a party to any proceeding by or in the right of the Company to procure
a judgment in its favor by reason of the fact that he is or was an agent of the
Company, or by reason of anything done or not done by him in any such capacity,
against any amounts paid in settlement of any such proceeding and all expenses
actually and reasonably incurred by him in connection with the investigation,
defense, settlement or appeal of such proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company; except that no indemnification under this
subsection shall be made in respect of any claim, issue or matter as to which
such person shall have been finally adjudged to be liable to the Company by a
court of competent jurisdiction due to willful misconduct of a culpable nature
in the performance of his duty to the Company, unless and only to the extent
that the Court of Chancery or the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such amounts which the Court of Chancery
or such other court shall deem proper; and


 


4.3                               Exception for Amounts
Covered by Insurance.  Notwithstanding the foregoing,
the Company shall not be obligated to indemnify the Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) to the
extent such have been paid directly to the Indemnitee by D&O Insurance.


 


5.                                      Partial Indemnification
and Contribution.


 


5.1                               Partial Indemnification. 
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) incurred
by him or her in the investigation, defense, settlement or appeal of a
proceeding but is not entitled, however, to indemnification for all of the
total amount thereof, then the Company shall nevertheless indemnify the
Indemnitee for such total amount except as to the portion thereof to which the
Indemnitee is not entitled to indemnification.


 


5.2                               Contribution. 
If the Indemnitee is not entitled to the indemnification provided in Section 4
for any reason other than the statutory limitations set forth in the Law, then
in respect of any threatened, pending or completed proceeding in which the
Company is jointly liable with the Indemnitee (or would be if joined in such
proceeding), the Company shall contribute to the amount of expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by the Indemnitee in such proportion as
is appropriate to reflect (i) the relative benefits received by the
Company on the one hand and the Indemnitee on the other hand from the
transaction from which such proceeding arose and (ii) the relative fault
of the Company on the one hand and of the Indemnitee on the other hand in
connection with the events which resulted in such expenses, judgments, fines or
settlement amounts, as well as any other relevant equitable
considerations.  


 

















 


The relative fault of the
Company on the one hand and of the Indemnitee on the other hand shall be
determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such expenses, judgments, fines or settlement
amounts.  The Company agrees that it
would not be just and equitable if contribution pursuant to this Section 5
were determined by pro rata allocation or any other method of allocation that
does not take account of the foregoing equitable considerations.


 


6.                                      Mandatory Advancement of
Expenses.


 


6.1                               Advancement. 
Subject to Section 9 below and except as prohibited by law, the
Company shall advance all expenses incurred by the Indemnitee in connection
with the investigation, defense, settlement or appeal of any proceeding to
which the Indemnitee is a party or is threatened to be made a party by reason
of the fact that the Indemnitee is or was an agent of the Company or by reason
of anything done or not done by him in any such capacity.  The Indemnitee hereby undertakes to promptly
repay such amounts advanced only if, and to the extent that, it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Company under the provisions of this Agreement, the Certificate of
Incorporation or Bylaws of the Company, the Law or otherwise.  The advances to be made hereunder shall be
paid by the Company to the Indemnitee within thirty (30) days following
delivery of a written request therefor by the Indemnitee to the Company.


 


6.2                               Exception. 
Notwithstanding the foregoing provisions of this Section 6, the
Company shall not be obligated to advance any expenses to the Indemnitee
arising from a lawsuit filed directly by the Company against the Indemnitee if
an absolute majority of the members of the Board reasonably determines in good
faith, within thirty (30) days of the Indemnitee’s request to be advanced
expenses, that the facts known to them at the time such determination is made
demonstrate clearly and convincingly that the Indemnitee acted in bad
faith.  If such a determination is made,
the Indemnitee may have such decision reviewed by another forum, in the manner
set forth in Sections 8.3, 8.4 and 8.5 hereof, with all references therein
to “indemnification” being deemed to refer to “advancement of expenses,” and
the burden of proof shall be on the Company to demonstrate clearly and
convincingly that, based on the facts known at the time, the Indemnitee acted
in bad faith.  The Company may not avail
itself of this Section 6.2 as to a given lawsuit if, at any time after the
occurrence of the activities or omissions that are the primary focus of the
lawsuit, the Company has undergone a change in control.  For this purpose, a change in control shall
mean a given person or group of affiliated persons or groups increasing their
beneficial ownership interest in the Company by at least twenty (20) percentage
points without advance Board approval.


 


7.                                      Notice and Other
Indemnification Procedures.


 


7.1                               Promptly after receipt by the Indemnitee
of notice of the commencement of or the threat of commencement of any
proceeding, the Indemnitee shall, if the Indemnitee believes that indemnification
with respect thereto may be sought from the Company under this Agreement,
notify the Company of the commencement or threat of commencement thereof.


 

















 


7.2                               If, at the time of the receipt of a
notice of the commencement of a proceeding pursuant to Section 7.1 hereof,
the Company has D&O Insurance in effect, the Company shall give prompt
notice of the commencement of such proceeding to the insurers in accordance
with the procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such D&O Insurance policies.


 


7.3                               In the event the Company shall be obligated
to advance the expenses for any proceeding against the Indemnitee, the Company,
if appropriate, shall be entitled to assume the defense of such proceeding,
with counsel approved by the Indemnitee (which approval shall not be
unreasonably withheld), upon the delivery to the Indemnitee of written notice
of its election to do so.  After delivery
of such notice, approval of such counsel by the Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to the Indemnitee
under this Agreement for any fees of counsel subsequently incurred by the
Indemnitee with respect to the same proceeding, provided that:  (a) the Indemnitee shall have the right
to employ his or her own counsel in any such proceeding at the Indemnitee’s
expense; (b) the Indemnitee shall have the right to employ his or her own
counsel in connection with any such proceeding, at the expense of the Company,
if such counsel serves in a review, observer, advice and counseling capacity
and does not otherwise materially control or participate in the defense of such
proceeding; and (c) if (i) the employment of counsel by the
Indemnitee has been previously authorized by the Company, (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of any such
defense or (iii) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of the
Indemnitee’s counsel shall be at the expense of the Company.


 


8.                                      Determination of Right to
Indemnification.


 


8.1                               To the extent the Indemnitee has been
successful on the merits or otherwise in defense of any proceeding referred to
in Section 4.1 or 4.2 of this Agreement or in the defense of any claim,
issue or matter described therein, the Company shall indemnify the Indemnitee
against expenses actually and reasonably incurred by him or her in connection
with the investigation, defense or appeal of such proceeding, or such claim,
issue or matter, as the case may be.


 


8.2                               In the event that Section 8.1 is
inapplicable, or does not apply to the entire proceeding, the Company shall
nonetheless indemnify the Indemnitee unless the Company shall prove by clear
and convincing evidence to a forum listed in Section 8.3 below that the
Indemnitee has not met the applicable standard of conduct required to entitle
the Indemnitee to such indemnification.


 


8.3                               The Indemnitee shall be entitled to
select the forum in which the validity of the Company’s claim under Section 8.2
hereof that the Indemnitee is not entitled to indemnification will be heard
from among the following, except that the Indemnitee can select a forum
consisting of the stockholders of the Company only with the approval of the
Company:


 

















 


(a)                                  A quorum of the Board consisting of
directors who are not parties to the proceeding for which indemnification is
being sought;


 


(b)                                 The stockholders of the Company;


 


(c)                                  Legal counsel mutually agreed upon by the
Indemnitee and the Board, which counsel shall make such determination in a
written opinion;


 


(d)                                 A panel of three arbitrators, one of whom
is selected by the Company, another of whom is selected by the Indemnitee and
the last of whom is selected by the first two arbitrators so selected; or


 


(e)                                  The Court of Chancery of Delaware.


 


8.4                               As soon as practicable, and in no event
later than thirty (30) days after the forum has been selected pursuant to Section 8.3
above, the Company shall, at its own expense, submit to the selected forum its
claim that the Indemnitee is not entitled to indemnification, and the Company
shall act in the utmost good faith to assure the Indemnitee a complete
opportunity to defend against such claim.


 


8.5                               If the forum selected in accordance with Section 8.3
hereof is not a court, then after the final decision of such forum is rendered,
the Company or the Indemnitee shall have the right to apply to the Court of
Chancery of Delaware, for the purpose of appealing the decision of such forum, provided
that such right is executed within sixty (60) days after the final decision of
such forum is rendered.  If the forum
selected in accordance with Section 8.3 hereof is a court, then the rights
of the Company or the Indemnitee to appeal any decision of such court shall be
governed by the applicable laws and rules governing appeals of the
decision of such court.


 


8.6                               Notwithstanding any other provision in
this Agreement to the contrary, the Company shall indemnify the Indemnitee
against all expenses incurred by the Indemnitee in connection with any hearing
or proceeding under this Section 8 involving the Indemnitee and against
all expenses incurred by the Indemnitee in connection with any other proceeding
between the Company and the Indemnitee involving the interpretation or
enforcement of the rights of the Indemnitee under this Agreement unless a court
of competent jurisdiction finds that each of the material claims and/or
defenses of the Indemnitee in any such proceeding was frivolous or not made in
good faith.


 


9.                                      Exceptions.  Any other
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:


 


9.1                               Claims Initiated by
Indemnitee.  To indemnify or advance expenses to the
Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by the Indemnitee and not by way of defense, except with
respect to proceedings specifically authorized by the Board or brought to
establish or enforce a right to indemnification and/or advancement of expenses
arising under this Agreement, the charter documents of the Company or any
subsidiary or any statute or law or otherwise, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board finds it to be appropriate; or


 

















 


9.2                               Unauthorized Settlements. 
To indemnify the Indemnitee hereunder for any amounts paid in settlement
of a proceeding unless the Company consents in advance in writing to such
settlement, which consent shall not be unreasonably withheld; or


 


9.3                               Securities Law Actions. 
To indemnify the Indemnitee on account of any suit in which judgment is
rendered against the Indemnitee for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any federal, state or local
statutory law; or


 


9.4                               Unlawful Indemnification. 
To indemnify the Indemnitee if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful.  In this respect, the Company and
the Indemnitee have been advised that the Securities and Exchange Commission
takes the position 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.


 


10.                               Non-Exclusivity.  The provisions
for indemnification and advancement of expenses set forth in this Agreement
shall not be deemed exclusive of any other rights which the Indemnitee may have
under any provision of law, the Company’s Certificate of Incorporation or
Bylaws, the vote of the Company’s stockholders or disinterested directors,
other agreements or otherwise, both as to action in the Indemnitee’s official
capacity and to action in another capacity while occupying his position as an
agent of the Company, and the Indemnitee’s rights hereunder shall continue
after the Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors and administrators of the
Indemnitee.


 

















 


11.                               Primacy of Indemnification.                                          The Company hereby acknowledges that Indemnitee has
certain rights to indemnification, advancement of expenses and/or insurance
provided by investment funds managed by entities referred to as “VantagePoint
Venture Partners” and their  affiliates
(collectively, the “Fund Indemnitors”). 
The Company hereby agrees that it is the indemnitor of first resort
(i.e., its obligations to Indemnitee under this Agreement are primary and any
obligation of the Fund Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), and that the Company will not assert that the Indemnitee must seek
expense advancement or reimbursement, or indemnification, from any Fund
Indemnitor before the Company must perform its expense advancement and
reimbursement, and indemnification obligations, under this Agreement.  No advancement or payment by the Fund
Indemnitors on behalf of Indemnitee with respect to any claim for which
Indemnitee has sought indemnification from the Company shall affect the
foregoing.  The Fund Indemnitors shall be
subrogated to the extent of such advancement or payment to all of the rights of
recovery which Indemnitee would have had against the Company if the Fund
Indemnitors had not advanced or paid any amount to or on behalf of
Indemnitee.  If for any reason a court of
competent jurisdiction determines that the Fund Indemnitors are not entitled to
the subrogation rights described in the preceding sentence, the Fund
Indemnitors shall have a right of contribution by the Company to the Fund
Indemnitors with respect to any advance or payment by the Fund Indemnitors to
or on behalf of the Indemnitee.


 


12.                               General Provisions.


 


12.1                        Interpretation of
Agreement.  It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
indemnification and advancement of expenses to the Indemnitee to the fullest
extent now or hereafter permitted by law, except as expressly limited herein.


 


12.2                        Severability. 
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, then:  (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including,
without limitation, all portions of any paragraphs of this Agreement containing
any such provision held to be invalid, illegal or unenforceable that are not
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of
any paragraphs of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 12.1
hereof.


 


12.3                        Modification and Waiver. 
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver.  In no event, however, shall the
Company or any other person have any right of recovery, through subrogation or
otherwise, with respect to the expense advance and reimbursement and
indemnification obligations under this Agreement, against (i) Indemnitee, (ii) the
Fund 


 

















 


Indemnitors, or (iii) any
insurance policy purchased or maintained by Indemnitee or the Fund Indemnitors.


 


12.4                        Subrogation. 
In the event of full payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all documents required and shall do all acts
that may be necessary or desirable to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.


 


12.5                        Counterparts. 
This Agreement may be executed in one or more counterparts, which shall
together constitute one agreement.


 


12.6                        Successors and Assigns. 
The terms of this Agreement shall bind, and shall inure to the benefit
of, the successors and assigns of the parties hereto.


 


12.7                        Notice. 
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given:  (a) if delivered by hand and signed for
by the party addressee; or (b) if mailed by certified or registered mail,
with postage prepaid, on the third business day after the mailing date.  Addresses for notice to either party are as
shown on the signature page of this Agreement or as subsequently modified
by written notice.


 


12.8                        Governing Law. 
This Agreement shall be governed exclusively by and construed according
to the laws of the State of Delaware,
without giving effect to that body of laws pertaining to conflict of laws.


 


12.9                        Consent to Jurisdiction. 
The Company and the Indemnitee each hereby irrevocably consent to the
jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or proceeding that arises out of or relates to this
Agreement.


 


12.10                 Attorneys’ Fees. 
In the event Indemnitee is required to bring any action to enforce
rights under this Agreement (including, without limitation, the expenses of any
Proceeding described in Section 1.3) the Indemnitee shall be entitled to
all reasonable fees and expenses in bringing and pursuing such action, unless a
court of competent jurisdiction finds each of the material claims of the
Indemnitee in any such action was frivolous and not made in good faith.


 


12.11                 Third Party Beneficiary. The Company and Indemnitee agree that
each Fund Indemnitor is a third party beneficiary of the provisions of Sections
11 and 12.4 of this Agreement.


 

















 


IN WITNESS WHEREOF,  the
parties hereto have entered into this Indemnity Agreement effective as of the
date first written above.


 


	
  NEXSAN CORPORATION

  	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
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SIGNATURE PAGE TO INDEMNITY
AGREEMENT