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 thereafter so long as Agent 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 Agent was serving in the capacity
referred to herein.


 


6.                                      Partial
Indemnification.  Agent shall be
entitled under this Agreement to indemnification by the Company for a portion of the 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 in connection with
any action, suit or proceeding referred to in Section 3 hereof even if not
entitled hereunder to indemnification for the total amount thereof, and the Company shall indemnify Agent for the
portion thereof to which Agent is entitled.


 


7.                                      Notification
and Defense of Claim.  Not later than
30 days after receipt by Agent of notice of the commencement of any action,
suit or proceeding, Agent will, if a claim in respect thereof is to be made
against the Company under this
Agreement, notify the Company of
the commencement thereof; but the omission so to notify the Company will not relieve it from any
liability which it may have to Agent otherwise than under this Agreement.  With respect to any such action, suit or
proceeding as to which Agent notifies the Company of the commencement thereof:


 


(a)                                  the
Company will be entitled to
participate therein at its own expense;


 


(b)                                  except
as otherwise provided below, the Company
may, at its option and jointly with any other indemnifying party
similarly notified and electing to assume such defense, assume the defense
thereof, with counsel reasonably satisfactory to Agent.  After notice from the Company to Agent of its election to assume the defense thereof,
the Company will not be liable
to Agent under this Agreement for any legal or other expenses subsequently incurred
by Agent in connection with the defense thereof except for reasonable costs of
investigation or otherwise as provided below. 
Agent shall have the right to employ separate counsel in such action,
suit or proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its
assumption of the defense thereof shall be at the expense of Agent unless (i) the
employment of counsel by Agent has been authorized by the Company, (ii) Agent shall have
reasonably concluded, and so notified the Company, that there is an actual conflict of interest between the Company and Agent in the conduct of
the defense of such action or (iii) the Company shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of Agent’s
separate counsel shall be at the expense of the Company.  The Company shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on behalf of
the Company or as to which Agent
shall have made the conclusion provided for in clause (ii) above; and


 


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(c)                                  the
Company shall not be liable to
indemnify Agent under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent, which shall not be
unreasonably withheld.  The Company shall be permitted to settle
any action except that it shall not settle any action or claim in any manner
which would impose any penalty or limitation on Agent without Agent’s written
consent, which may be given or withheld in Agent’s sole discretion.


 


8.                                      Expenses.  The Company
shall advance, prior to the final disposition of any proceeding, promptly
following request therefor, all expenses incurred by Agent in connection with
such proceeding upon receipt of an undertaking by or on behalf of Agent to
repay said amounts if it shall be determined ultimately that Agent is not
entitled to be indemnified under the provisions of this Agreement, the Bylaws,
the DGCL or otherwise.


 


9.                                      Enforcement.  Any right to indemnification or advances
granted by this Agreement to Agent shall be enforceable by or on behalf of
Agent 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 90 days of request therefor.  Agent, in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting Agent’s claim.  It shall
be a defense to any action for which a claim for indemnification is made under Section 3
hereof (other than an action brought to enforce a claim for expenses pursuant
to Section 8 hereof, provided that the required undertaking has
been tendered to the Company)
that Agent is not entitled to indemnification because of the limitations set
forth in Section 4 hereof.  Neither
the failure of the Company (including
its Board of Directors or its stockholders) to have made a determination prior
to the commencement of such enforcement action that indemnification of Agent 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 the action or create a presumption that Agent is not entitled to
indemnification under this Agreement or otherwise.


 


10.                               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 Agent, 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.


 


11.                               Non-Exclusivity
of Rights.  The rights conferred on
Agent by this Agreement shall not be exclusive of any other right which Agent
may have or hereafter acquire under any statute, provision of the Company’s Amended and Restated Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in Agent’s official capacity and as to action in
another capacity while holding office.


 


12.                               Survival
of Rights.


 


(a)                                  The
rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Company or to serve 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 inure to
the benefit of Agent’s heirs, executors and administrators.


 


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(b)                                  The
Company shall require any
successor (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.                               Separability.  Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof.  Furthermore, if this
Agreement shall be invalidated in its entirety on any ground, then the Company shall nevertheless indemnify
Agent to the fullest extent provided by the Bylaws, the DGCL or any other
applicable law.


 


14.                               Governing
Law.  This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Delaware.


 


15.                               Amendment
and Termination.  No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.


 


16.                               Identical
Counterparts; Facsimile.  This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute but one and the same Agreement. 
Only one such counterpart need be produced to evidence the existence of
this Agreement.  Facsimile signatures
shall be as effective as original signatures.


 


17.                               Headings.  The headings of the sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.


 


18.                               Notices.  All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) upon delivery if delivered by hand to the party to whom
such communication was directed or (ii) upon the third business day after
the date on which such communication was mailed if mailed by certified or
registered mail with postage prepaid:


 


(a)                                  If
to Agent, at the address indicated on the signature page hereof.


 


(b)                                  If
to the Company, to:


 


DOT HILL SYSTEMS CORP.


6305 El Camino Real


Carlsbad, California 92009


 


or to such other address as may have been furnished to Agent by the Company.


 


19.                               Prior
Agreements.  This Agreement
supersedes any prior agreements between the Company and Agent regarding the
subject matter hereof and the parties hereto agree that any such prior
agreements are of no further force or effect.


 


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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement on and as of the day and year first above
written.


 


	
   

  	
  DOT HILL SYSTEMS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
					



 


 


[SIGNATURE PAGE TO INDEMNITY AGREEMENT]


 


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