This Indemnity Agreement
(this “ Agreement ”) dated as of
______________ _____, 2007, is made by and between
Cavium Networks,
Inc., a Delaware corporation (the “ Company
”), and _______________ (“
Indemnitee ”).
A.
The Company desires to attract and retain the services of highly
qualified individuals as directors, officers, employees and
agents.
B.
The Company’s bylaws (the “ Bylaws ”)
require that the Company indemnify its directors, and empowers the
Company to indemnify its officers, employees and agents, as
authorized by the Delaware General Corporation Law, as amended (the
“ Code ”), under which the Company is organized
and such Bylaws expressly provide that the indemnification provided
therein is not exclusive and contemplates that the Company may
enter into separate agreements with its directors, officers and
other persons to set forth specific indemnification
provisions.
C.
Indemnitee does not regard the protection currently provided by
applicable law, the Company’s governing documents and
available insurance as adequate under the present circumstances,
and the Company has determined that Indemnitee and other directors,
officers, employees and agents of the Company may not be willing to
serve or continue to serve in such capacities without additional
protection.
D.
The Company desires and has requested Indemnitee to serve or
continue to serve as a director, officer, employee or agent of the
Company, as the case may be, and has proferred this Agreement to
Indemnitee as an additional inducement to serve in such
capacity.
E.
Indemnitee is willing to serve, or to continue to serve, as a
director, officer, employee or agent of the Company, as the case
may be, if Indemnitee is furnished the indemnity provided for
herein by the Company.
Now Therefore , in
consideration of the mutual covenants and agreements set forth
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
(a) Agent . For purposes of this Agreement, the term
“agent” of the Company means any person who:
(i) is or was a director , officer, employee or other
fiduciary of the Company or a subsidiary of the Company; or
(ii) is or was serving at the request or for the convenience
of, or representing the interests of, the Company or a subsidiary
of the Company, as a director, officer, employee or other fiduciary
of a foreign or domestic corporation, partnership, joint venture,
trust or other enterprise.
1.
(b) Expenses . For purposes of this Agreement, the term
“expenses” shall be broadly construed and shall
include, without limitation, all direct and indirect costs of any
type or nature whatsoever (including, without limitation, all
attorneys’, witness, or other professional fees and related
disbursements, and other out-of-pocket costs of whatever nature),
actually and reasonably incurred by Indemnitee in connection with
the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this
Agreement, the Code or otherwise, and amounts paid in settlement by
or on behalf of Indemnitee, but shall not include any judgments,
fines or penalties actually levied against Indemnitee for such
individual’s violations of law. The term
“expenses” shall also include reasonable compensation
for time spent by Indemnitee for which he is not compensated by the
Company or any subsidiary or third party (i) for any period
during which Indemnitee is not an agent, in the employment of, or
providing services for compensation to, the Company or any
subsidiary; and (ii) if the rate of compensation and estimated
time involved is approved by the directors of the Company who are
not parties to any action with respect to which expenses are
incurred, for Indemnitee while an agent of, employed by, or
providing services for compensation to, the Company or any
subsidiary.
(c) Proceedings . For purposes of this Agreement, the
term “proceeding” shall be broadly construed and shall
include, without limitation, any threatened, pending, or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, and whether formal or
informal in any case, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of: (i) the fact
that Indemnitee is or was a director or officer of the Company;
(ii) the fact that any action taken by Indemnitee or of any
action on Indemnitee’s part while acting as director,
officer, employee or agent of the Company; or (iii) the fact
that Indemnitee is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, and in any such case described above, whether or not
serving in any such capacity at the time any liability or expense
is incurred for which indemnification, reimbursement, or
advancement of expenses may be provided under this
Agreement.
(d) Subsidiary . For purposes of this Agreement, the
term “subsidiary” means any corporation or limited
liability company of which more than 50% of the outstanding voting
securities or equity interests are owned, directly or indirectly,
by the Company and one or more of its subsidiaries, and any other
corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary.
(e) Independent Counsel . For purposes of this
Agreement, the term “independent counsel” means a law
firm, or a partner (or, if applicable, member) of such a law firm,
that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party
to the proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“independent counsel” shall not include any person who,
under the applicable standards of professional conduct
then
2.
prevailing,
would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.
2. Agreement to Serve . Indemnitee will serve, or
continue to serve, as a director, officer, employee or agent of the
Company or any subsidiary, as the case may be, faithfully and to
the best of his or her ability, at the will of such corporation (or
under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of such
corporation, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the
bylaws or other applicable charter documents of such corporation,
or until such time as Indemnitee tenders his or her resignation in
writing; provided, however, that nothing contained in this
Agreement is intended as an employment agreement between Indemnitee
and the Company or any of its subsidiaries or to create any right
to continued employment of Indemnitee with the Company or any of
its subsidiaries in any capacity.
The Company
acknowledges that it has entered into this Agreement and assumes
the obligations imposed on it hereby, in addition to and separate
from its obligations to Indemnitee under the Bylaws, to induce
Indemnitee to serve, or continue to serve, as a director, officer,
employee or agent of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director,
officer, employee or agent of the Company.
(a) Indemnification in Third Party Proceedings .
Subject to Section 10 below, the Company shall indemnify
Indemnitee to the fullest extent permitted by the Code, as the same
may be amended from time to time (but, only to the extent that such
amendment permits Indemnitee to broader indemnification rights than
the Code permitted prior to adoption of such amendment), if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any proceeding, for any and all expenses,
actually and reasonably incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of such
proceeding.
(b) Indemnification in Derivative Actions and Direct
Actions by the Company . Subject to Section 10 below, the
Company shall indemnify Indemnitee to the fullest extent permitted
by the Code, as the same may be amended from time to time (but,
only to the extent that such amendment permits Indemnitee to
broader indemnification rights than the Code permitted prior to
adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any
proceeding by or in the right of the Company to procure a judgment
in its favor, against any and all expenses actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense, settlement, or appeal of such proceedings.
4. Indemnification of Expenses of Successful Party .
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 or in defense of any claim,
issue or matter therein, including the dismissal of any action
without prejudice, the Company shall indemnify
3.
Indemnitee
against all expenses actually and reasonably incurred in connection
with the investigation, defense or appeal of such
proceeding.
5. Partial Indemnification . If Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of any expenses actually and
reasonably incurred by Indemnitee in the investigation, defense,
settlement or appeal of a proceeding, but is precluded by
applicable law or the specific terms of this Agreement to
indemnification for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
6. Advancement of Expenses . To the extent not
prohibited by law, the Company shall advance the expenses incurred
by Indemnitee in connection with any proceeding, and such
advancement shall be made within twenty (20) days after the
receipt by the Company of a statement or statements requesting such
advances (which shall include invoices received by Indemnitee in
connection with such expenses but, in the case of invoices in
connection with legal services, any references to legal work
performed or to expenditures made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, an
undertaking to repay the advancement of expenses 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.
Advances shall be unsecured, interest free and without regard to
Indemnitee’s ability to repay the expenses. Advances shall
include any and all expenses actually and reasonably incurred by
Indemnitee pursuing an action to enforce Indemnitee’s right
to indemnification under this Agreement, or otherwise and this
right of advancement, including expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Indemnitee acknowledges that the execution and delivery of
this Agreement shall constitute an undertaking providing that
Indemnitee shall, to the fullest extent required by law, repay the
advance if and to the extent that it is ultimately determined by a
court of competent j
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