EXHIBIT 10.17
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is entered into,
effective as of December 15, 2005 by and between JDS Uniphase
Corporation, a Delaware corporation (the “Company”),
and Kevin A. DeNuccio (“Indemnitee”).
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 Certificate of
Incorporation and 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
will be serving 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 serving 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) Board : the Board of
Directors of the Company.
(b) Affiliate : 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.
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(c) 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
Act 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 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 30% or more of the total
voting power represented by the Company’s then outstanding
Voting Securities, or (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, 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 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 : 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 : 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 while a director or
officer is or was serving at the request 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
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, as described
above.
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(f) Independent Counsel : the
person or body appointed in connection with
Section 3.
(g) Proceeding : any
threatened, pending, or completed action, suit, or proceeding
(including an action by or in the right of the Company), or any
inquiry, hearing, or investigation, whether conducted by 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 : the
person or body appointed in accordance with
Section 3.
(i) Voting Securities : 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.
(c) Expense Advances . If so
requested by Indemnitee, the Company shall advance (within ten
business days of such request) any and all Expenses to Indemnitee
(an “Expense Advance”); provided that (i) such an
Expense Advance shall be made only upon delivery to the Company of
an undertaking by or on behalf of the Indemnitee to repay the
amount thereof if it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company, and (ii) if and
to the extent that the Reviewing Party determines that Indemnitee
would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be
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reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid. If
Indemnitee has commenced or commences legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, as provided in
Section 4, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding, and Indemnitee shall not be
required to reimburse the Company 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 have
lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be
charged thereon.
(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
judgment is rendered 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 Securities Exchange Act of 1934, as amended, 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; after a Change in Control, the Independent
Counsel referred to below shall become the Reviewing Party. With
respect to all matters arising after a Change in Control (other
than a Change in Co
