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Exhibit 10.1
BIGBAND NETWORKS, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into, effective as of
, 2006 by and between BigBand Networks, Inc., a Delaware
corporation (the " Company "), and
(" Indemnitee "), effective as of the date that the
Registration Statement on Form S-1 related to the initial public
offering of the Company’s Common Stock is declared effective
by the United States Securities and Exchange Commission.
WHEREAS, it is essential to the Company to retain and attract as
directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director and/or officer of the
Company;
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims currently being asserted
against directors and officers of corporations;
WHEREAS, the Amended and Restated Certificate of Incorporation
(the " Certificate of Incorporation ") and Amended and
Restated Bylaws (the " Bylaws ") of the Company require the
Company to indemnify and advance expenses to its directors and
officers to the fullest extent permitted under Delaware law, and
the Indemnitee has been serving and continues to serve as a
director and/or officer of the Company in part in reliance on the
Company’s Certificate of Incorporation and Bylaws; and
WHEREAS, in recognition of Indemnitee’s need for
(i) substantial protection against personal liability based on
Indemnitee’s reliance on the aforesaid Certificate of
Incorporation and Bylaws, (ii) specific contractual assurance
that the protection promised by the Certificate of Incorporation
and Bylaws will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of the Certificate of
Incorporation and Bylaws or any change in the composition of the
Company’s Board of Directors or acquisition transaction
relating to the Company) and (iii) an inducement to provide
effective services to the Company as a director and/or officer, the
Company wishes to provide in this Agreement for the indemnification
of and the advancing of expenses to Indemnitee to the fullest
extent (whether partial or complete) permitted under Delaware law
and as set forth in this Agreement, and, to the extent insurance is
maintained, to provide for the continued coverage of Indemnitee
under the Company’s directors’ and officers’
liability insurance policies.
NOW, THEREFORE, in consideration of the above premises and of
Indemnitee continuing to serve the Company directly or, at its
request, with another enterprise, and intending to be legally bound
hereby, the parties agree as follows:
1. Certain Definitions:
(a) " Affiliate " shall mean any corporation or other
person or entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with, the person specified, including, without limitation,
with respect to the Company, any direct or indirect subsidiary of
the Company.
(b) " Board " shall mean the Board of
Directors of the Company.
(c) A " Change in Control " shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the " Exchange Act ")) (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company, and other than any
person holding shares of the Company on the date that the Company
first registers under the Securities Act of 1933, as amended, or
any transferee of such individual if such transferee is a spouse or
lineal descendant of the transferee or a trust for the benefit of
the individual, his or her spouse or lineal descendants), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by
the Company’s then outstanding Voting Securities,
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any
new director whose election by the Board or nomination for election
by the Company’s stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the Board,
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation that would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially
all of the Company’s assets.
(d) " Expenses " shall mean any expense, liability or
loss, including attorneys’ fees, judgments, fines, ERISA
excise taxes and penalties, amounts paid or to be paid in
settlement, any interest, assessments or other charges imposed
thereon, any federal, state, local or foreign taxes imposed as a
result of the actual or deemed receipt of any payments under this
Agreement and all other costs and obligations, paid or incurred in
connection with investigating, defending, being a witness in,
participating in (including on appeal) or preparing for any of the
foregoing in, any Proceeding relating to any Indemnifiable
Event.
(e) " Indemnifiable Event " shall mean any event or
occurrence that takes place either prior to or after the execution
of this Agreement, related to the fact that Indemnitee is or was a
director or officer of the Company or an Affiliate of the Company,
or while a director or officer is or was serving at the request of
the Company or an Affiliate of the Company as a director, officer,
employee, trustee, agent or fiduciary of another foreign or
domestic corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise or was a director, officer,
employee or agent of a foreign or domestic corporation that was a
predecessor corporation of the Company or of
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another enterprise at the request of such
predecessor corporation, or related to anything done or not done by
Indemnitee in any such capacity, whether or not the basis of the
Proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent of the Company or an
Affiliate of the Company, as described above.
(f) " Independent Counsel " shall mean the person or body
appointed in connection with Section 3.
(g) " Proceeding " shall mean any threatened, pending or
completed action, suit or proceeding or any alternative dispute
resolution mechanism (including an action by or in the right of the
Company or an Affiliate of the Company) or any inquiry, hearing or
investigation, whether conducted by the Company or an Affiliate of
the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative
or other.
(h) " Reviewing Party " shall mean the person or body
appointed in accordance with Section 3.
(i) " Voting Securities " shall mean any securities of
the Company that vote generally in the election of directors.
2. Agreement to Indemnify .
(a) General Agreement . In the event Indemnitee was, is
or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by
law, as the same exists or may hereafter be amended or interpreted
(but in the case of any such amendment or interpretation, only to
the extent that such amendment or interpretation permits the
Company to provide broader indemnification rights than were
permitted prior thereto). The parties hereto intend that this
Agreement shall provide for indemnification in excess of that
expressly permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of
Incorporation, its Bylaws, vote of its stockholders or
disinterested directors or applicable law.
(b) Initiation of Proceeding . Notwithstanding anything
in this Agreement to the contrary, Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection with
any Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Board has consented to the initiation of such
Proceeding, (ii) the Proceeding is one to enforce
indemnification rights under Section 5 or (iii) the
Proceeding is instituted after a Change in Control (other than a
Change in Control approved by a majority of the directors on the
Board who were directors immediately prior to such Change in
Control) and Independent Counsel has approved its initiation.
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(c) Expense Advances . If so requested by
Indemnitee, the Company shall advance (within thirty (30) days
of such request) any and all Expenses to Indemnitee (an "Expense
Advance"). The Indemnitee shall qualify for such Expense Advances
upon the execution and delivery to the Company of this Agreement
which shall constitute an undertaking providing that the Indemnitee
undertakes to repay such Expense Advances if and to the extent that
it is ultimately determined by a court of competent jurisdiction in
a final judgment, not subject to appeal, that Indemnitee is not
entitled to be indemnified by the Company. Indemnitee’s
obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. This
Section 2(c) shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Section 2(b) or
2(f).
(d) Mandatory Indemnification . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding
relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
(e) Partial Indemnification . If Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of Expenses, but not, however, for
the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is
entitled.
(f) Prohibited Indemnification . No indemnification
pursuant to this Agreement shall be paid by the Company on account
of any Proceeding in which a final judgment is rendered against
Indemnitee or Indemnitee enters into a settlement, in each case
(i) for an accounting of profits made from the purchase or
sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act or similar
provisions of any federal, state or local laws; (ii) for which
payment has actually been made to or on behalf of Indemnitee under
any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under any insurance
policy or other indemnity provision; or (iii) for which
payment is prohibited by law. Notwithstanding anything to the
contrary stated or implied in this Section 2(f),
indemnification pursuant to this Agreement relating to any
Proceeding against Indemnitee for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the
Exchange Act or similar provisions of any federal, state or local
laws shall not be prohibited if Indemnitee ultimately establishes
in any Proceeding that no recovery of such profits from Indemnitee
is permitted under Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws.
3. Reviewing Party . Prior to any Change in Control, the
Reviewing Party shall be any appropriate person or body consisting
of a member or members of the Board or any other person or body
appointed by the Board who is not a party to the particular
Proceeding with respect to which Indemnitee is seeking
indemnification; provided that if all members of the Board are
parties to the particular Proceeding with respect to which
Indemnitee is seeking indemnification, the Independent Counsel
referred to below shall become the Reviewing Party; after a Change
in Control, the Independent Counsel referred to below shall become
the Reviewing Party. With respect to all
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