INDEMNIFICATION AGREEMENT
Exhibit 99.1
| Bookham, Inc. Indemnification Agreement Directors & Officers |
This Agreement is made as of the day of October 2005, by and between Bookham, Inc., a
Delaware corporation (the “Corporation), and (the “Indemnitee”), a
director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors and officers
the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects directors and officers to
expensive litigation risks at the same time that the availability of directors’ and officers’
liability insurance has been severely limited, and
WHEREAS, it is now and has always been the express policy of the Corporation to indemnify its
directors and officers, and
WHEREAS, the Indemnitee does not regard the protection available under the Corporation’s
Certificate of Incorporation and insurance as adequate in the present circumstances, and may not
be willing to serve or continue to serve as a director or officer without adequate protection, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to serve, as a director
or officer of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as follows:
1. Agreement to Serve. The Indemnitee agrees to serve or continue to serve as a
director or officer of the Corporation for so long as the Indemnitee is duly elected or appointed
or until such time as the Indemnitee tenders a resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution proceeding, administrative hearing or other
proceeding, whether brought by or in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative or investigative nature, and any appeal therefrom.
(b) The term “Corporate Status” shall mean the status of a person who is or was a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer, partner, trustee, member, employee or agent of another
corporation, partnership, joint venture, trust, limited liability company or other enterprise.
(c) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers, court
costs, transcript costs, fees and expenses of experts, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in connection with investigations,
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judicial or administrative proceedings or appeals, but shall not include the
amount of judgments, fines or penalties against Indemnitee or amounts paid in settlement in
connection with such matters.
(d) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan;
references to “serving at the request of the Corporation” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Agreement.
3. Indemnity of Indemnitee. The Corporation hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by law, as such may be amended from time to
time. In furtherance of the foregoing indemnification, and without limiting the generality
thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this Paragraph 3(a) if the Indemnitee was or is a
party to or threatened to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its favor) by reason of
the Indemnitee’s Corporate Status or by reason of any action alleged to have been taken or omitted
in connection therewith, against all Expenses, judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by or on behalf of the Indemnitee in connection with
such Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation and, with
respect to any criminal Proceeding, had no reasonable cause to believe that his or her conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal Proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Paragraph
3(b) if the Indemnitee was or 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 Corporation to procure a judgment in its
favor by reason of the Indemnitee’s Corporate Status or by reason of any action alleged to have
been taken or omitted in connection therewith, against all Expenses and, to the extent permitted
by law, amounts paid in settlement actually and reasonably incurred by or on behalf of the
Indemnitee in connection with such Proceeding, if the Indemnitee acted in good faith and in a
manner which the Indemnitee reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except that, if applicable law so applies, no indemnification
shall be made
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under this Paragraph 4 in respect of any claim, issue, or matter as to which
the Indemnitee shall have been adjudged to be liable to the Corporation, unless, and only to the
extent, that the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such liability but in
view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses as the Court of Chancery or such other court shall deem proper.
4. Additional Indemnity. In addition to, and without regard to any limitations on,
the indemnifications provided elsewhere in this Agreement, the Corporation shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or on his behalf if, by reason
of his Corporate Status, he is, or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the Corporation), including, without
limitation, all liability arising out of the negligence or active or passive wrongdoing of
Indemnitee. The only limitation that shall exist upon the Corporation’s obligations pursuant to
this Agreement shall be that the Corporation shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set
forth in Sections 3 and 9 hereof) to be unlawful.
5. Exceptions to Right of Indemnification.
(a) Notwithstanding anything to the contrary in this Agreement, except as set forth in
Paragraph 10, the Corporation shall not indemnify the Indemnitee in connection with a Proceeding
(or part thereof) initiated by the Indemnitee unless the initiation thereof was approved by the
Board of Directors of the Corporation.
(b) Notwithstanding anything to the contrary in this Agreement, the Corporation shall not
indemnify the Indemnitee to the extent the Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments to the Indemnitee
and the Indemnitee is subsequently reimbursed from the proceeds of insurance, the Indemnitee shall
promptly refund such indemnification payments to the Corporation to the extent of such insurance
reimbursement.
6. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein,
the Indemnitee shall be indemnified against all Expenses incurred by or on behalf of the
Indemnitee in connection therewith. Without limiting the foregoing, if any Proceeding or any
claim, issue or matter therein is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of guilty or nolo
contendere by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith
and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that the
Indemnitee had reasonable cause to believe his or her conduct was unlawful, the
Indemnitee shall be considered for the purposes hereof to have been wholly successful with
respect thereto.
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7. Notification and Defense of Claim. As a condition precedent to the Indemnitee’s
right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as
practicable of any Proceeding for which indemnity will or could be sought; provided, that the
failure to notify the Corporation within such time limit shall not release the Corporation of any
liability it may have to the Indemnitee, except to the extent that the Corporation has been
prejudiced by such failure. With respect to any Proceeding of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the
Indemnitee. After notice from the Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such Proceeding, other than as provided
below in this Paragraph 7. The Indemnitee shall have the right to employ his or her own counsel
in connection with such Proceeding, but the fees and expenses of such counsel incurred after
notice from the Corporation of its assumption of the defense thereof shall be at the expense of
the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the
Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between the Corporation and the
Indemnitee in the conduct of the defense of such Proceeding or (iii) the Corporation shall not in
fact have employed counsel to assume the defense of such Proceeding, in each of which cases the
fees and expenses of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Agreement. The Corporation shall not be entitled, without
the consent of the Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for the Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above. The Corporation shall not be required to indemnify
the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected
without its written consent. The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent.
Neither the Corporation nor the Indemnitee will unreasonably withhold or delay their consent to
any proposed settlement.
8. Advancement of Expenses. In the event that the Corporation does not assume the
defense pursuant to Paragraph 7 of this Agreement of any Proceeding of which the Corporation
receives notice under this Agreement, any Expenses incurred by or on behalf of the Indemnitee in
defending such Proceeding shall be paid by the Corporation in advance of the final disposition of
such Proceeding within 10 days after the receipt by the Corporation of a statement or statements
from Indemnitee requesting such advance or advances from time to time; provided,
however, that the payment of such Expenses incurred by or on behalf of the Indemnitee in
advance of the final disposition of such Proceeding shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation as authorized in this Agreement. Such undertaking shall be
accepted without reference to the financial ability of the Indemnitee to make repayment.
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9. Procedures and Presumptions for Indemnification.
(a) In the event the Indemnitee wishes to exercise his/her rights to indemnification or
advancement of Expenses pursuant to the Paragraphs 3, 4, 6 or 8 of this Agreement, the Indemnitee
shall submit to the Corporation a written statement to this effect.
(b) Procedure for Paragraphs 6. Any such advancement of Expenses or indemnification
pursuant to Section 6 shall be paid within 10 days of receipt by the Company of the written
request of the Indemnitee.
(c) Procedure for Paragraphs 3 and 4. Indemnification pursuant to Paragraphs 3 or 4
shall be made promptly, and in any event within 30 days after receipt by the Corporation of the
written request of the Indemnitee, unless the Corporation determines within such 30-day
period that such Indemnitee did not meet the applicable standard of conduct set forth in Paragraph
3 or 4, as the case may be, such that indemnification is not available under Delaware law. Such
determination shall be made by 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.
(d) Presumptions for Determination of Entitlement to Indemnification.
| (i) | In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Corporation (including by its directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation (including by its directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. | ||
| (ii) | Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Corporation, including financial statements, or on information supplied to Indemnitee by the officers of the Corporation in the course of their duties, or on the advice of legal counsel for the Corporation or on information or records given or reports made to the Corporation by an independent certified public accountant or |
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| by an appraiser or other expert selected with reasonable care by the Corporation. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this subsection are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. | |||
| (iii) | Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or stockholder of the Corporation shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom. |
10. Remedies. The right to indemnification or advancement of Expenses as provided by
this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction.
Unless otherwise required by law, the burden of proving that indemnification is not appropriate
shall be on the Corporation. Neither the failure of the Corporation to have made a determination
prior to the commencement of such action that indemnification is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual determination by
the Corporation pursuant to Paragraph 9 that the Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not
met the applicable standard of conduct. The Indemnitee’s expenses (of the type described in the
definition of “Expenses” in Paragraph 2(c)) reasonably incurred in connection with successfully
establishing the Indemnitee’s right to indemnification, in whole or in part, in any such
Proceeding shall also be indemnified by the Corporation.
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11. Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or
on behalf of the Indemnitee in connection with any Proceeding but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of
such Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee
is entitled.
12. Subrogation. In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the Corporation to bring
suit to enforce such rights.
13. Term of Agreement. This Agreement shall continue until and terminate upon the
later of (a) six years after the date that the Indemnitee shall have ceased to serve as a director
or officer of the Corporation or, at the request of the Corporation, as a director, officer,
partner, trustee, member, employee or agent of another corporation, partnership, joint venture,
trust, limited liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which the Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Indemnitee pursuant to Paragraph 10 of this Agreement relating thereto.
14. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certification of Incorporation, the By-Laws, any other
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s
official capacity and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation from purchasing
and maintaining insurance, at its expense, to protect itself or the Indemnitee against any
expense, liability or loss incurred by it or the Indemnitee in any such capacity, or arising out
of the Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against
such expense, liability or loss under this Agreement; provided that the Corporation shall not be
liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that the Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
15. No Special Rights. Nothing herein shall confer upon the Indemnitee any right to
continue to serve as an officer or director of the Corporation for any period of time or at any
particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in
settlement with respect to any Proceeding to the full extent permitted by any applicable portion
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of this Agreement that shall not have been invalidated and to the fullest extent permitted by
applicable law.
17. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute the original.
18. Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
19. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
20. Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof nor shall any such waiver constitute a
continuing waiver.
21. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed
by certified or registered mail with postage prepaid, on the third day after the date on which it
is so mailed:
| (a) If to the Indemnitee, to: | ||||||
| (b) if to the Corporation, to: | Chief Executive Officer | |||||
| 0000 Xxxxxxxx Xxxxxx |
||||||
| Xxx Xxxx, Xxxxxxxxxx 00000 | ||||||
| Copy to: | General Counsel | |||||
| 00 Xxxxxx Xxxx Xxx | ||||||
| Xxxxxx, Xxxxxxx, | ||||||
| Xxxxxx | ||||||
| X0X 0X0 | ||||||
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
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22. Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at the time
indemnification or reimbursement or advancement of Expenses is sought; provided,
however, that if no such notice is given, and if the General Corporation Law of Delaware
is amended, or other Delaware law is enacted, to permit further indemnification of the directors
and officers, then the Indemnitee shall be indemnified to the fullest extent permitted under the
General Corporation Law, as so amended, or by such other Delaware law, as so enacted.
23. Enforcement. The Corporation expressly confirms and agrees that it has entered
into this Agreement in order to induce the Indemnitee to continue to serve as an officer or
director of the Corporation, and acknowledges that the Indemnitee is relying upon this Agreement
in continuing in such capacity.
24. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect
of the subject matter contained herein is hereby terminated and cancelled. For avoidance of
doubt, the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights
under Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
25. Consent to Suit. In the case of any dispute under or in connection with this
Agreement, the Indemnitee may only bring suit against the Corporation in the Court of Chancery of
the State of Delaware. The Indemnitee hereby consents to the exclusive jurisdiction and venue of
the courts of the State of Delaware, and the Indemnitee hereby waives any claim the Indemnitee may
have at any time as to forum non conveniens with respect to such venue. The Corporation shall
have the right to institute any legal action arising out of or relating to this Agreement in any
court of competent jurisdiction. Any judgment entered against either of the parties in any
proceeding hereunder may be entered and enforced by any court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the
day and year first above written.
| BOOKHAM, INC. | ||||||||||
Attest:
|
By: | |||||||||
By:
|
Name: | |||||||||
Name:
|
Title: | |||||||||
| INDEMNITEE: | ||||||||||
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