EXHIBIT 10.15
INDEMNITY AGREEMENT
This Agreement is made as of the ___ day of __________, ___,
between Emulex Corporation, a Delaware corporation (the "Corporation"), and the
undersigned ("Agent"), with reference to the following facts:
RECITALS
I. The Agent is currently serving as a Director of the
Corporation and the Corporation wishes the Agent to continue in such capacity.
The Agent is willing, under certain circumstances, to continue in such capacity.
B. The Agent has indicated that he does not regard the
indemnities available under the Corporation's by-laws and available insurance,
if any, as adequate to protect him against the risks associated with his service
to the Corporation. The Agent may not be willing to continue in office in the
absence of the benefits accorded to Agent under this Agreement.
AGREEMENT
In order to induce the Agent to continue to serve as a Director
of the Corporation and in consideration for his continued service, the
Corporation hereby agrees to indemnify the Agent as follows:
1. The Corporation will pay on behalf of the Agent, and his
executors, administrators or assigns, any amount which he is or becomes legally
obligated to pay because of any claim or claims made against him because of any
act or omission or neglect or breach of duty, including any actual or alleged
error or misstatement or misleading statement, which he commits or suffers while
acting in his capacity as a Director of the Corporation and solely because of
his being a Director (a "Claim"). The payments which the Corporation will be
obligated to make hereunder shall include, inter alia, damages, judgments,
settlements and costs, cost of investigation (excluding salaries of officers or
employees of the Corporation) and costs of defense of legal actions, claims or
proceedings and appeals therefrom, and costs of attachment or similar bonds;
provided, however, that the Corporation shall not be obligated to pay fines or
other obligations or fees imposed by law or otherwise make any payments
hereunder which it is prohibited by applicable law from paying as indemnity or
for any other reason.
2. Anything to the contrary notwithstanding, the Corporation
shall not be liable under this Agreement to make any payment in connection with
any Claim made against the Agent:
(a) for which payment is actually made to the Agent
under a valid and collectible insurance policy, except in respect of any excess
beyond the amount of payment under such insurance;
(b) for which the Agent is entitled to indemnity and/or payment
by reason of having given notice of any circumstance which might give rise to a
claim under any policy of insurance, the terms of which have expired prior to
the effective date of this Agreement.
(c) for which the Agent is indemnified by the Corporation
otherwise than pursuant to this Agreement;
(d) based upon or attributable to the Agent gaining in fact any
personal profit or advantage to which he was not legally entitled;
(e) for an accounting of profits made from the purchase or sale
by the Agent of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any state statutory law or common law;
(f) brought about or contributed to by the dishonesty of the
Agent seeking payment hereunder; however, notwithstanding the foregoing, the
Agent shall be protected under this Agreement as to any claims upon which suit
may be brought against him by reason of any alleged dishonesty on his part,
unless a judgment or other final adjudication thereof adverse to the Agent shall
establish that he committed (i) acts of active and deliberate dishonesty (ii)
with actual dishonest purpose and intent, which acts were material to the cause
of action so adjudicated; or
(g) with respect to expenses incurred by Agent in connection with
any proceeding instituted by Agent to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that the material assertions made by
Agent in such proceeding were not made in good faith or were frivolous.
3. The Agent, as a condition precedent to his right to be
indemnified under this Agreement, shall give to the Corporation notice in
writing as soon as practicable of any Claim made against him for which indemnity
will or could be sought under this Agreement. Notice to the Corporation shall be
directed to the attention of the President (or such other address as the
Corporation shall designate in writing to the Agent); notice shall be deemed
received if sent by prepaid mail properly addressed, the date of such notice
being the date postmarked. In addition, the Agent shall give the Corporation
such information and cooperation as it may reasonably require and shall be
within the Agent's power.
4. If a Claim under this Agreement is not paid by the
Corporation, or on its behalf, within ninety days after a written
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claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the Claim and if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim.
5. No costs, charges or expenses for which indemnity shall be
sought hereunder shall be incurred without the Corporation's consent, which
consent shall not be unreasonably withheld.
6. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Agent, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable to the Corporation effectively to bring
suit to enforce such rights.
7. Costs and expenses (including attorneys' fees) incurred by the
Agent in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake in writing to repay any
such advances in the event that it is ultimately determined that the Agent is
not entitled to indemnification under the terms of this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement, no
advance shall be made by the Corporation if a determination is reasonably and
promptly made by the board of directors by a majority vote of a quorum of
disinterested directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by independent legal
counsel, that, based upon the facts known to the board or counsel at the time
such determination is made, (a) the Agent acted in bad faith or deliberately
breached his duty to the Corporation or its stockholders, and (b) as a result of
such actions by the Agent, it is more likely than not that it will ultimately be
determined that the Agent is not entitled to indemnification under the terms of
this Agreement.
8. Nothing herein shall be deemed to diminish or otherwise
restrict the Agent's rights to indemnification under any provision of the
certificate of incorporation or by-laws of the Corporation or under Delaware
law.
9. This Agreement shall be governed by and construed in
accordance with Delaware law.
10. This Agreement shall be binding upon all successors and
assigns of the Corporation (including any transferee of all or substantially all
of its assets and any successor by merger or operation of law) and shall inure
to the benefit of the heirs, personal representatives and estate of Agent.
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11. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, the enforceability
of the remaining provisions of the Agreement shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement
to be duly executed and signed as of the day and year first above written.
EMULEX CORPORATION
By:
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