Adaptec 2002 Annual Report Download - page 97

(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined that indemnification is not
permitted by this Agreement or applicable law. In addition, neither the failure of any Reviewing Party to
have made a determination as to whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by any Reviewing Party that Indemnitee has not met such
standard of conduct or did not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be indemnified under this Agreement
under applicable law, shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has
not met any particular standard of conduct or did not have any particular belief. In connection with any
determination by any Reviewing Party or otherwise as to whether the Indemnitee is entitled to be indemnified
hereunder under applicable law, the burden of proof shall be on the Company to establish that Indemnitee is
not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of a Claim pursuant to
Section 4(b) hereof, the Company has liability insurance in effect which may cover such Claim, the Company
shall give prompt notice of the commencement of such Claim 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 Claim in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated hereunder to provide indemnification
for or make any Expense Advances with respect to the Expenses of any Claim, the Company, if appropriate,
shall be entitled to assume the defense of such Claim with counsel approved by Indemnitee (which approval
shall not be unreasonably withheld) upon the delivery to Indemnitee of written notice of the Company's
election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention
of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any
fees or expenses of separate counsel subsequently retained by or on behalf of Indemnitee with respect to the
same Claim; provided that, (i) Indemnitee shall have the right to employ Indemnitee's separate counsel in
any such Claim at Indemnitee's expense and (ii) if (A) the employment of separate counsel by Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the
Company shall not continue to retain such counsel to defend such Claim, then the fees and expenses of
Indemnitee's separate counsel shall be Expenses for which Indemnitee may receive indemnification or Expense
Advances hereunder.
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