Exhibit 10.1


 


FORM OF


INDEMNITY
AGREEMENT


This Indemnity Agreement, dated as of ___________, is made by and
between 3Com Corporation, a Delaware corporation (the “Company”), and
______________ (the “Indemnitee”).


RECITALS


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


B.            The statutes and
judicial decisions regarding the duties of directors and officers are often
difficult to apply, ambiguous, or conflicting, and therefore fail to provide
such directors, officers and agents with adequate, reliable knowledge of legal
risks to which they are exposed or information regarding the proper course of
action to take.


C.            Plaintiffs often
seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal resources of
directors, officers and other agents.


D.            The Company believes
that it is unfair for its directors, officers and agents and the directors,
officers and agents of its subsidiaries to assume the risk of huge judgments
and other expenses which may occur in cases in which the director, officer or
agent received no personal profit and in cases where the director, officer or
agent was not culpable.


E.             The Company
recognizes that the issues in controversy in litigation against a director,
officer or agent of a corporation such as the Company or its subsidiaries are
often related to the knowledge, motives and intent of such director, officer or
agent, that he is usually the only witness with knowledge of the essential
facts and exculpating circumstances regarding such matters, and that the long
period of time which usually elapses before the trial or other disposition of
such litigation often extends beyond the time that the director, officer or
agent can reasonably recall such matters; and may extend beyond the normal time
for retirement for such director, officer or agent with the result that he,
after retirement or in the event of his death, his spouse, heirs, executors or
administrators, may be faced with limited ability and undue hardship in maintaining
an adequate defense, which may discourage such a director, officer or agent
from serving in that position.


 


 

















 


F.             Based upon 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 directors, officers and agents of the Company and its
subsidiaries and to encourage such individuals to take the business risks
necessary for the success of the Company and its subsidiaries, it is necessary
for the Company to contractually indemnify its directors, officers and agents
and the directors, officers and agents of its subsidiaries, and to assume for
itself maximum liability for expenses and damages in connection with claims
against such directors, officers and agents in connection with their service to
the Company and its subsidiaries, and has further concluded that the failure to
provide such contractual indemnification could result in great harm to the
Company and its subsidiaries and the Company’s stockholders.


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


H.            The Company desires
and has requested the Indemnitee to serve or continue to serve as a director,
officer or agent of the Company and/or one or more subsidiaries of the Company
free from undue concern for claims for damages arising out of or related to
such services to the Company and/or one or more subsidiaries of the Company.


I.              Indemnitee is
willing to serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the indemnity
provided for herein.


AGREEMENT


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


1.             Definitions.


(a)           Agent.  For the purposes of this Agreement, “agent”
of the Company means any person who is or was a director, officer, employee or
other agent 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 interests of the
Company or a subsidiary of the Company as a director, officer, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
Company or a subsidiary of the Company, or was a director, officer, employee or
agent of another enterprise at the request of, for the convenience of, or to
represent the interests of such predecessor corporation.


(b)           Expenses.  For purposes of this Agreement, “expenses”
include all out-of-pocket costs of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related disbursements), actually
and reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to


 


 


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indemnification
under this Agreement or Section 145 or otherwise; provided, however, that
“expenses” shall not include any judgments, fines, ERISA excise taxes or
penalties, or amounts paid in settlement of a proceeding.


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


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


2.             Agreement
to Serve.  The Indemnitee agrees to
serve and/or continue to serve as agent of the Company, at its will (or under
separate agreement, if such agreement exists), in the capacity Indemnitee
currently serves as an agent of the Company, so long as he is duly appointed or
elected and qualified in accordance with the applicable provisions of the
Bylaws of the Company or any subsidiary of the Company or until such time as he
tenders his resignation in writing; provided, however, that nothing contained
in this Agreement is intended to create any right to continued employment by
Indemnitee.


3.             Liability
Insurance.


(a)           Maintenance
of D&O Insurance.  The Company
hereby covenants and agrees that, so long as the Indemnitee shall continue to
serve as an agent of the Company and thereafter so long as the Indemnitee shall
be subject to any possible proceeding by reason of the fact that the Indemnitee
was an agent of the Company, the Company, subject to Section 3(c), shall
promptly obtain and maintain in full force and effect directors’ and officers’
liability insurance (“D&O Insurance”) in reasonable amounts from
established and reputable insurers.


(b)           Rights
and Benefits.  In all policies of
D&O Insurance, the Indemnitee shall be named as an insured in such a manner
as to provide the Indemnitee the same rights and benefits as are accorded to
the most favorably insured of the Company’s directors, if the Indemnitee is a
director; or of the Company’s officers, if the Indemnitee is not a director of
the Company but is an officer; or of the Company’s key employees, if the
Indemnitee is not a director or officer but is a key employee.


(c)           Limitation
on Required Maintenance of D&O Insurance.  Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in
good faith that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount of coverage provided, the
coverage provided by such insurance is limited by exclusions so as to provide
an insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.


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


 


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(a)           Successful
Defense.  To the extent the
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding (including, without limitation, an action by or in the right of the Company)
to which the Indemnitee was a party by reason of the fact that he is or was an
Agent of the Company at any time, against all expenses of any type whatsoever
actually and reasonably incurred by him in connection with the investigation,
defense or appeal of such proceeding.


(b)           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, the Company shall indemnify the
Indemnitee against any and all expenses and liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement) actually and reasonably incurred by
him in connection with the investigation, defense, settlement or appeal of such
proceeding, provided the Indemnitee 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 its stockholders, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.


(c)           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 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, the Company shall indemnify the Indemnitee against
all expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement, or appeal of such proceeding, provided the
Indemnitee 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 its stockholders;
except that no indemnification under this subsection 4(c) shall be made in
respect to 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 unless and only to the extent that 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 shall deem proper.


(d)           Actions
where Indemnitee is Deceased.  If
the Indemnitee is a person who was or is a party or is threatened to be made a
party to any proceeding 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,
and if prior to, during the pendency of or after completion of such proceeding
Indemnitee becomes deceased, the Company shall indemnify the Indemnitee’s
heirs, executors and administrators against any and all expenses and
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes and penalties, and amounts paid in settlement)
actually and reasonably incurred to the extent Indemnitee would have been
entitled to indemnification pursuant to Sections 4(a), 4(b), or 4(c) above were
Indemnitee still alive.


(e)           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 and penalties, and amounts paid in
settlement) for


 


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which
payment is actually made to or on behalf of Indemnitee under a valid and
collectible insurance policy of D&O Insurance, or under a valid and
enforceable indemnity clause, by-law or agreement.


5.             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
and penalties, and amounts paid in settlement) incurred by him in the
investigation, defense, settlement or appeal of a proceeding, but not entitled,
however, to indemnification for all of the total amount hereof, the Company
shall nevertheless indemnify the Indemnitee for such total amount except as to
the portion hereof to which the Indemnitee is not entitled.


6.             Mandatory
Advancement of Expenses.  Subject to
Section 8(a) below, 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.  Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall be determined ultimately that the 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
the Indemnitee within twenty (20) days following delivery of a written request
therefor by the Indemnitee to the Company.


7.             Notice
and Other Indemnification Procedures.


(a)           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.


(b)           If,
at the time of the receipt of a notice of the commencement of a proceeding
pursuant to Section 7(a) 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 policies.


(c)           In
the event the Company shall be obligated to pay the expenses of 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,
upon the delivery to the Indemnitee of written notice of its election so to
do.  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 (i) the Indemnitee shall have the
right to employ his counsel in any such proceeding at the Indemnitee’s expense;
and (ii) if (A) the employment of counsel by the Indemnitee has been previously
authorized by the Company, (B) 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 (C) the Company shall not, in


 


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fact,
have employed counsel to assume the defense of such proceeding, then the fees
and expenses of Indemnitee’s counsel shall be at the expense of the Company.


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


(a)           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, unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized by the Board, (iii) such
indemnification is provided by the Company, in its sole discretion, pursuant to
the powers vested in the Company under the General Corporation Law of Delaware
or (iv) the proceeding is brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise
as required under Section 145.


(b)           Lack
of Good Faith.  To indemnify the
Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by the Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith
or was frivolous; or


(c)           Unauthorized
Settlements.  To indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of a
proceeding unless the Company consents to such settlement, which consent shall
not be unreasonably withheld.


9.             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 his 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.


10.           Enforcement.  Any right to indemnification or advances
granted by this Agreement to Indemnitee shall be enforceable by or on behalf of
Indemnitee in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request therefor.  Indemnitee, in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim.  It shall be a
defense to any action for which a claim for indemnification is made under this
Agreement (other than an action brought to enforce a claim for expenses
pursuant to Section 6 hereof, provided that the required undertaking has been
tendered to the Company) that Indemnitee is not entitled to indemnification
because of the limitations set forth in Sections 4 and 9 hereof.  Neither the failure of the Corporation
(including its Board of Directors or its stockholders) to have made a
determination prior to the commencement of such enforcement action that
indemnification of Indemnitee is proper in the circumstances, nor an actual
determination by the Company (including its Board of Directors or its
stockholders) that such indemnification is improper, shall be a defense to


 


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the
action or create a presumption that Indemnitee is not entitled to
indemnification under this Agreement or otherwise.


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


12.           Survival
of Rights.


(a)           All
agreements and obligations of the Company contained herein shall continue
during the period Indemnitee is an agent of the Company and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason of the fact
that Indemnitee was serving in the capacity referred to herein.


(b)           The
Company shall require any successor to the Company (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.


13.           Interpretation
of Agreement.  It is understood that
the parties hereto intend this Agreement to be interpreted and enforced so as
to provide indemnification to the Indemnitee to the fullest extent permitted by
law including those circumstances in which indemnification would otherwise be
discretionary.


14.           Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, (i) the validity, legality and enforceability of the remaining
provisions of the 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 (ii)
to the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph 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 13 hereof.


15.           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 provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.


16.           Notice.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given (i) if delivered by hand and receipted for by the party addressee or
(ii) if mailed by certified or registered mail with postage prepaid, on the


 


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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.


17.           Governing Law.  This Agreement shall be governed exclusively
by and construed according to the laws of the State of Delaware as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.


 


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The parties hereto have entered into this Indemnity Agreement effective
as of the date first above written.


 


	
   

  	
   

  	
  3Com
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  [Name]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address: