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
<PAGE>
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
<PAGE>
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
