Exhibit 10.8
INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION
AGREEMENT (this "AGREEMENT") is made and
entered
into this ____ day of _____________,
____ (the "EFFECTIVE
DATE") by and between
Passave, Inc., a Delaware corporation (the "COMPANY"), and [ ] (the
"INDEMNITEE").
WHEREAS, the Company believes it is essential to retain and
attract
qualified directors and officers;
WHEREAS, the
Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and the Indemnitee recognize the
increased risk
of litigation and other claims being
asserted against directors and officers of
public companies;
WHEREAS, the
Company's Amended and Restated Certificate of Incorporation
(the "CERTIFICATE OF INCORPORATION") and
Bylaws (the "BYLAWS") authorize the
Company to indemnify and advance expenses
to its directors and officers to the
extent permitted by the DGCL (as
hereinafter defined);
WHEREAS, the Indemnitee has been serving and intends to continue
serving
as a director and/or officer of the Company
in part in reliance on the
Certificate of Incorporation and Bylaws, or
is relying upon the rights afforded
under this Agreement in accepting the
Indemnitee's position as a director,
officer or employee of the Company; and
WHEREAS, in recognition of the Indemnitee's need for (i)
substantial
protection against personal liability based
on the Indemnitee's reliance on the
Certificate of Incorporation and Bylaws,
(ii) specific contractual assurance
that the protection promised by the
Certificate of Incorporation and Bylaws will
be available to the Indemnitee, regardless
of, among other things, any amendment
to or revocation of the Bylaws or any
change in the composition of the Company's
Board of Directors (the "BOARD") or
acquisition transaction relating to the
Company and (iii) an inducement to continue
to provide effective services to the
Company as a director and/or officer
thereof, the Company wishes to provide for
the indemnification of the Indemnitee and
to advance expenses to the Indemnitee
to the fullest extent permitted by law and
as set forth in this Agreement, and,
to the extent insurance is maintained by
the Company, to provide for the
continued coverage of the Indemnitee under
the Company's directors' and
officers' liability insurance policies.
NOW,
THEREFORE, in consideration of the premises contained herein and
for
the Indemnitee continuing to serve the
Company directly or, at its request, with
another enterprise, and intending to be
legally bound hereby, the parties hereto
agree as follows:
1.
CERTAIN DEFINITIONS.
(a) 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, and the rules and
regulations thereunder (the "EXCHANGE
ACT"), other than (a) a trustee or other
fiduciary holding securities under an
employee
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benefit plan of the Company; (b) 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; or (c)
any current beneficial stockholder or
group, as defined by Rule 13d-5 under the
Exchange Act, including the heirs,
assigns and successors thereof, of
beneficial ownership, within the meaning of
Rule 13d-3 under the Exchange Act, of
securities possessing more than 50% of the
total combined voting power of the
Company's outstanding securities; hereafter
becomes the "beneficial owner," as defined
in Rule 13d-3 under the Exchange Act,
directly or indirectly, of securities of
the Company representing 20% or more of
the total combined 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 of the directors then
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 thereof;
or
(iii) the stockholders
of the Company approve a merger or
consolidation of the Company with any other
corporation, other than a merger or
consolidation which 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 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.
(b) "DGCL"
shall mean the General Corporation Law of the State
of Delaware, as the same exists or may
hereafter be amended or interpreted;
PROVIDED, HOWEVER, that 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.
(c)
"EXPENSE" shall mean attorneys' fees and all other costs,
expenses and obligations paid or incurred
in connection with investigating,
defending, being a witness in or
participating in (including on appeal) or
preparing for any of the foregoing, any
Proceeding relating to any Indemnifiable
Event.
(d)
"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 the Indemnitee is
or was a director or officer of the
Company, or is or was serving at the
request of the Company as a director,
officer, employee or agent of another
corporation or of a partnership, joint
venture, trust or other enterprise,
including service with respect to employee
benefit plans, or by reason of anything
done or not done by the Indemnitee in
any such capacity.
(e)
"PROCEEDING" shall mean any threatened, pending or
completed action, suit, investigation or
proceeding, and any appeal thereof,
whether civil, criminal, administrative
2
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or investigative and/or any inquiry or
investigation, whether conducted by the
Company or any other party, that the
Indemnitee in good faith believes might
lead to the institution of any such
action.
(f)
"REVIEWING PARTY" shall mean any appropriate person or body
consisting of a member or members of the
Company's Board or any other person or
body appointed by the Board (including the
special independent counsel referred
to in Section 6) who is not a party to the
particular Proceeding with respect to
which the Indemnitee is seeking
indemnification.
(g)
"VOTING SECURITIES" shall mean any securities of the
Company which vote generally in the
election of directors.
2.
INDEMNIFICATION. In the event the Indemnitee was or is a party
to
or is involved (as a party, witness or
otherwise) in any Proceeding by reason of
(or arising in part out of) an
Indemnifiable Event, whether the basis of the
Proceeding is the Indemnitee's alleged
action in an official capacity as a
director or officer or in any other
capacity while serving as a director or
officer, the Company shall indemnify the
Indemnitee to the fullest extent
permitted by the DGCL against any and all
Expenses, liabilities and losses
(including judgments, fines, ERISA excise
taxes or penalties, and amounts paid
or to be paid in settlement, and any
interest, assessments or other charges
imposed thereon, and any federal, state,
local or foreign taxes imposed on any
director or officer as a result of the
actual or deemed receipt of any payments
under this Agreement) (collectively,
"LIABILITIES") reasonably incurred or
suffered by such person in connection with
such Proceeding. The Company shall
provide indemnification pursuant to this
Section 2 as soon as practicable, but
in no event later than 30 days after it
receives written demand from the
Indemnitee. Notwithstanding anything in
this Agreement to the contrary and
except as provided in Section 5 below, the
Indemnitee shall not be entitled to
indemnification pursuant to this Agreement
(i) in connection with any Proceeding
initiated by the Indemnitee against the
Company or any director or officer of
the Company unless the Company has joined
in or consented to the initiation of
such Proceeding or (ii) on account of any
suit in which judgment is rendered
against the Indemnitee pursuant to Section
16(b) of the Exchange Act for an
accounting of profits made from the
purchase, sale or other transaction by the
Indemnitee of securities of the Company (or
derivatives thereof).
3.
ADVANCEMENT OF EXPENSES. The Company shall advance Expenses to
the
Indemnitee within 30 business days of such
request (an "EXPENSE ADVANCE");
PROVIDED, HOWEVER, that if required by
applicable corporate laws, such Expenses
shall be advanced only upon delivery to the
Company of an undertaking by or on
behalf of the Indemnitee to repay such
amount if it is ultimately determined
that the Indemnitee is not entitled to be
indemnified by the Company; PROVIDED,
FURTHER, that the Company shall make such
advances only to the extent permitted
by applicable law. Expenses incurred by the
Indemnitee while not acting in
his/her capacity as a director or officer,
including service with respect to
employee benefit plans, may be advanced
upon such terms and conditions as the
Board, in its sole discretion, deems
appropriate.
4.
REVIEW PROCEDURE FOR IND
