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EXHIBIT 10.1
INFINERA CORPORATION
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (" Agreement
") is entered into as of _____________, 2007, by and between
Infinera Corporation, a Delaware corporation (the "
Corporation "), and _______________ ("
Indemnitee ").
RECITALS
A. The Corporation and Indemnitee recognize the continued
difficulty in obtaining liability insurance for its directors,
officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions
in the coverage of such insurance.
B. The Corporation and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited.
C. The Corporation desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the
Corporation and, in part, in order to induce Indemnitee to continue
to provide services to the Corporation, wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the
maximum extent permitted by Delaware law.
D. In view of the considerations set forth above, the
Corporation desires that Indemnitee be indemnified by the
Corporation as set forth herein.
NOW, THEREFORE , the Corporation and Indemnitee hereby
agree as follows:
1 . Indemnification .
(a) Indemnification of Expenses . The Corporation shall
indemnify Indemnitee to the fullest extent permitted by law if
Indemnitee was or 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, any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other (hereinafter a "Claim " ) by
reason of (or arising in part out of) any event or occurrence
related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Corporation, or any subsidiary
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity (hereinafter an
"Indemnifiable
Event ") against any and all
expenses (including attorneys’ fees and all other costs,
expenses and obligations incurred in connection with investigating,
defending, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in,
any such action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid in settlement (if such settlement is
approved in advance by the Corporation, which approval shall not be
unreasonably withheld) of such Claim and any federal, state, local
or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement (collectively,
hereinafter " Expenses "), including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses. Such payment of Expenses shall be made
by the Corporation as soon as practicable but in any event no later
than 10 days after written demand by Indemnitee therefor is
presented to the Corporation.
(b) Reviewing Party . Notwithstanding the foregoing,
(i) the obligations of the Corporation under
Section 1(a) shall be subject to the condition that the
Reviewing Party (as defined in Section 8(e) hereof)
shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in
Section 1(c) hereof is involved) that Indemnitee would
not be permitted to be indemnified under Delaware law, and
(ii) the obligation of the Corporation to make an advance
payment of Expenses to Indemnitee pursuant to
Section 2(a) (an " Expense Advance ")
shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under Delaware law, the Corporation
shall be entitled to be reimbursed by Indemnitee (who hereby agrees
to reimburse the Corporation) for all such amounts theretofore
paid; provided, however , that if Indemnitee has commenced
or thereafter commences legal proceedings in the Court of Chancery
of the State of Delaware to secure a determination that Indemnitee
should be indemnified under Delaware law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be
indemnified under Delaware law shall not be binding and Indemnitee
shall not be required to reimburse the Corporation for any Expense
Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee’s obligation to reimburse
the Corporation for any Expense Advance shall be unsecured and no
interest shall be charged thereon. If there has not been a Change
in Control (as defined in Section 8(c) hereof), the
Reviewing Party shall be selected by the Board of Directors, unless
the Indemnitee elects to have the Reviewing Party be Independent
Legal Counsel (as defined in Section 8(d) hereof)
selected by Indemnitee and approved by the Corporation (which
approval shall not be unreasonably withheld). If there has been
such a Change in Control (other than a Change in Control which has
been approved by a majority of the Corporation’s Board of
Directors who were directors immediately prior to such Change in
Control), the Reviewing Party shall be the Independent Legal
Counsel referred to in Section 1(c) hereof. If there
has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not
be permitted to be indemnified in whole or in part under Delaware
law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof,
including the legal or factual bases therefor, and the Corporation
hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Corporation and
Indemnitee.
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(c) Change in Control . The Corporation
agrees that if there is a Change in Control of the Corporation
(other than a Change in Control which has been approved by a
majority of the Corporation’s Board of Directors who were
directors immediately prior to such Change in Control) then, with
respect to all matters thereafter arising concerning the rights of
Indemnitees to payments of Expenses and Expense Advances under this
Agreement or any other agreement or under the Corporation’s
Certificate of Incorporation or Bylaws as now or hereafter in
effect, Independent Legal Counsel shall be selected by Indemnitee
and approved by the Corporation (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall
render its written opinion to the Corporation and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be
indemnified under Delaware law and the Corporation agrees to abide
by such opinion. The Corporation agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities and damages arising out
of or relating to this Agreement or its engagement pursuant
hereto.
(d) Mandatory Payment of Expenses . Notwithstanding any
other provision of this Agreement other than Section 7
hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal
of an action without prejudice, in defense of any action, suit,
proceeding, inquiry or investigation referred to in
Section (1)(a) hereof or in the defense of any claim,
issue or matter therein, Indemnitee shall be indemnified against
all Expenses incurred by Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure
.
(a) Advancement of Expenses . The Corporation shall
advance all Expenses incurred by Indemnitee. The advances to be
made hereunder shall be paid by the Corporation to Indemnitee as
soon as practicable but in any event no later than ten
(10) days after written demand by Indemnitee therefor to the
Corporation.
(b) Notice/Cooperation by Indemnitee . Indemnitee shall,
as a condition precedent to Indemnitees’ right to be
indemnified under this Agreement, give the Corporation notice in
writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this
Agreement. Notice to the Corporation shall be directed to the Chief
Executive Officer of the Corporation at the address shown on the
signature page of this Agreement (or such other address as the
Corporation shall designate in writing to Indemnitee). In addition,
Indemnitee shall give the Corporation such information and
cooperation as it may reasonably require and as shall be within
Indemnitees’ power.
(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 guilty or 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 Delaware law. In addition, neither the failure of the 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 the Reviewing Party that Indemnitee
has not met such standard of conduct or did
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not have such belief, prior to the commencement
of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under Delaware
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 the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Corporation to establish that Indemnitee is
not so entitled.
(d) Notice to Insurers . If, at the time of the receipt
by the Corporation of a notice of a Claim pursuant to
Section 2(b) hereof, the Corporation has liability
insurance in effect which may cover such Claim, the Corporation
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 Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such
action, suit, proceeding, inquiry or investigation in accordance
with the terms of such policies.
(e) Selection of Counsel . In the event the Corporation
shall be obligated hereunder to pay the Expenses of any Claim, the
Corporation 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 its election so to do. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such
counsel by the Corporation, the Corporation will not be liable to
Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Claim;
provided that , (i) Indemnitee shall have the right to
employ Indemnitees’ counsel in any such Claim at Indemnitee
expense and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Corporation,
(B) Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Corporation and Indemnitee in the
conduct of any such defense, or (C) the Corporation shall not
continue to retain such counsel to defend such Claim, then the fees
and expenses of Indemnitee counsel shall be at the expense of the
Corporation. The Corporation shall have the right to conduct such
defense as it sees fit in its sole discretion, including the right
to settle any claim against Indemnitee without the consent of the
Indemnitee.
3. Additional Indemnification Rights;
Nonexclusivity .
(a) Scope . The Corporation hereby agrees to indemnify
Indemnitee to the fullest extent permitted by Delaware law,
notwithstanding that such indemnification is not specifically
authorized by the other provisions of t
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