1
EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
AGREEMENT, made this th day of , 19 , between CIENA
Corporation, a Delaware corporation (the "Company"), and (the "Indemnitee"),
with respect to the following facts:
A. Fulfilling the potential of the Company requires the
attraction and retention of qualified and capable directors, officers,
employees, agents and fiduciaries; and
B. The Restated Certificate of Incorporation of the Company
(the "Restated Certificate of Incorporation") requires the Company to indemnify
and advance expenses to its directors and officers to the fullest extent
authorized by law and allows the Company to indemnify employees and agents to
the fullest extent authorized by law; and
C. Historically, basic protection against undue risk of
personal liability of directors and officers has been provided through
insurance coverage providing reasonable protection at reasonable cost; and
D. The Company's current stage of development is such that
it is presently uncertain whether, and to what extent, directors' and officers'
liability insurance is or will continue to be available to the Company at a
reasonable cost for the protection of Indemnitee; and
E. It is the policy of the Company to indemnify its
directors and officers so as to provide them with the maximum possible
protection permitted by law; and
F. In recognition of Indemnitee's need for protection
against personal liability in order to induce Indemnitee to serve or continue
to serve the Company in an effective manner, and, in the case of directors and
officers, to supplement or replace directors' and officers' liability insurance
coverage, if any, obtained by the Company, and in part to provide Indemnitee
with specific contractual assurance that the protection promised by the
Restated Certificate of Incorporation will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of the
Restated Certificate of Incorporation or any change in the composition of the
Company's Board of Directors or any acquisition transaction relating to the
Company), the Company, with the prior approval of the Company's stockholders,
wishes to provide the Indemnitee with the benefits contemplated by this
Agreement; and
G. As a result of the provision of such benefits Indemnitee
has agreed to serve or to continue to serve the Company;
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Definitions. The following terms, as used
herein, shall have the following respective meanings:
a. An Affiliate: of a specified Person is a
Person who directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Person specified.
The term Associate used to indicate a relationship with any Person shall mean
(i) any corporation or organization (other than the Company or a Subsidiary) of
which such Person is an officer or partner or is, directly, or indirectly, the
Beneficial Owner of ten (10) percent or more of any
2
class of Equity Securities, (ii) any trust or other estate in which such Person
has a substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity (other than an Employee Plan
Trustee), (iii) any Relative of such Person, or (iv) any officer or director of
any corporation controlling or controlled by such Person.
b. Beneficial Ownership: shall be determined,
and a Person shall be the Beneficial Owner of all securities which such Person
is deemed to own beneficially, pursuant to Rule13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (or any
successor rule or statutory provision), or, if said Rule13d-3 shall be
rescinded and there shall be no successor rule or statutory provision thereto,
pursuant to said Rule 13d-3 as in effect on April 26, 1996; provided, however,
that a Person shall, in any event, also be deemed to be the Beneficial Owner of
any Voting Shares: (A) of which such Person or any of its Affiliates or
Associates is, directly or indirectly, the Beneficial Owner, or (B) of which
such Person or any of its Affiliates or Associates has (i) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants, or options, or
otherwise, or (ii) sole or shared voting or investment power with respect
thereto pursuant to any agreement, arrangement, understanding, relationship or
otherwise (but shall not be deemed to be the Beneficial Owner of any Voting
Shares solely by reason of a revocable proxy granted for a particular meeting
of stockholders, pursuant to a public solicitation of proxies for such meeting,
with respect to shares of which neither such Person nor any such Affiliate or
Associate is otherwise deemed the Beneficial Owner), or (C) of which any other
Person is, directly or indirectly, the Beneficial Owner if such first mentioned
Person or any of its Affiliates or Associates acts with such other Person as a
partnership, syndicate or other group pursuant to any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
shares of capital stock of the Company; and provided further, however, that (i)
no director or officer of the Company, nor any Associate or Affiliate of any
such director or officer, shall, solely by reason of any or all of such
directors and officers acting in their capacities as such, be deemed for any
purposes hereof, to be the Beneficial Owner of any Voting Shares of which any
other such director or officer (or any Associate or Affiliate thereof) is the
Beneficial Owner and (ii) no trustee of an employee stock ownership or similar
plan of the Company or any Subsidiary ("Employee Plan Trustee") or any
Associate or Affiliate of any such Trustee, shall, solely by reason of being an
Employee Plan Trustee or Associate or Affiliate of an Employee Plan Trustee, be
deemed for any purposes hereof to be the Beneficial Owner of any Voting Shares
held by or under any such plan.
c. A Change in Control: shall be deemed to have
occurred if (A) any Person (other than (i) the Company or any Subsidiary, (ii)
any pension, profit sharing, employee stock ownership or other employee benefit
plan of the Company or any Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such capacity, or (iii) any Person who
is as of April 26, 1996 the Beneficial Owner of 20% or more of the total voting
power of the Voting Shares) is or becomes, after the date of this Agreement,
the Beneficial Owner of 20% or more of the total voting power of the Voting
Shares, (B) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election or appointment by the Board of Directors or
nomination or recommendation 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 thereof, (C) 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 Shares of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining
2
3
outstanding or by being converted into Voting Shares of the surviving entity)
at least 80% of the total voting power represented by the Voting Shares of the
Company or such surviving entity outstanding, 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 of all or substantially all of the
Company's assets, or (D) a change in control of a nature that would be required
to be reported in response to Item5(f) of Schedule 14A of Regulation 14
promulgated under the Securities Act of 1934, as amended, as in effect on April
26, 1996.
d. Claim: means any threatened, pending or
completed action, suit, arbitration or proceeding, or any inquiry or
investigation, whether brought by or in the right of the Company or otherwise,
that Indemnitee in good faith believes might lead to the institution of any
such action, suit, arbitration or proceeding, whether civil, criminal,
administrative, investigative or other, or any appeal therefrom.
e. Equity Security: shall have the meaning
given to such term under Rule 3a11-1 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on April 26, 1996.
f. D&O Insurance: means any valid directors'
and officers' liability insurance policy maintained by the Company for the
benefit of the Indemnitee, if any.
g. Determination: means a determination, and
"Determined" means a matter which has been determined based on the facts known
at the time, by: (i) a majority vote of a quorum of disinterested directors,
or (ii) if such a quorum is not obtainable, or even if obtainable, if a quorum
of disinterested directors so directs, by independent legal counsel in a
written opinion, or, in the event there has been a Change in Control, by the
Special Independent Counsel (in a written opinion) selected by Indemnitee as
set forth in Section 6, or (iii) a majority of the disinterested stockholders
of the Company, or (iv) a final adjudication by a court of competent
jurisdiction.
h. Excluded Claim: means any payment for Losses
or Expenses in connection with any Claim: (i) based upon or attributable to
Indemnitee gaining in fact any personal profit or personal advantage to which
Indemnitee is not entitled; or (ii) for the return by Indemnitee of any
remuneration paid to Indemnitee without the previous approval of the
stockholders of the Company which is illegal; or (iii) for an accounting of
profits in fact made from the purchase or sale by Indemnitee of securities of
the Company within the meaning of Section16 of the Securities Exchange Act of
1934, as amended, or similar provisions of any state law; or (iv) resulting
from Indemnitee's knowingly fraudulent, dishonest or willful misconduct; or (v)
the payment of which by the Company under this Agreement is not permitted by
applicable law.
i. Expenses: means any reasonable expenses
incurred by Indemnitee as a result of a Claim or Claims made against Indemnitee
for Indemnifiable Events including, without limitation, 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 to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
j. Fines: means any fine, penalty or, with
respect to an employee benefit plan, any excise tax or penalty assessed with
respect thereto.
3
4
k. Indemnifiable Event: means any event or
occurrence, occurring prior to or after the date of this Agreement, related to
the fact that Indemnitee is or was a director, officer, employee, trustee,
agent or fiduciary of the Company, or is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise, or by reason of anything done or not done by Indemnitee,
including, but not limited to, any breach of duty, neglect, error,
misstatement, misleading statement, omission, or other act done or wrongfully
attempted by Indemnitee, or any of the foregoing alleged by any claimant, in
any such capacity.
l. Losses: means any amounts or sums which
Indemnitee is legally obligated to pay as a result of a Claim or Claims made
against Indemnitee for Indemnifiable Events including, without limitation,
damages, judgments and sums or amounts paid in settlement of a Claim or Claims,
and Fines.
m. Person: means any individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
n. Potential Change in Control: shall be deemed
to have occurred if (A) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in Control; (B) any Person
(including the Company) publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in Control; (C)
any Person (other than (i) the Company or any Subsidiary, (ii) any pension,
profit sharing, employee stock ownership or other employee benefit plan of the
Company or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or (iii) any Person who is as of April
26, 1996 the Beneficial Owner of 20% or more of the total voting power of the
Voting Shares), who is or becomes the Beneficial Owner of 9.5% or more of the
total voting power of the Voting Shares, increases his Beneficial Ownership of
such voting power by 5% or more over the percentage so owned by such Person on
the date hereof; or (D) the Board of Directors adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control has
occurred.
o. Relative: means a Person's spouse, parents,
children, siblings, mothers- and father-in-law, sons-and daughters-in-law, and
brothers- and sisters-in-law.
p. Reviewing Party: means any appropriate
person or body consisting of a member or members of the Company's Board of
Directors 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 Claim for which Indemnitee is seeking indemnification.
q. Subsidiary: means any corporation of which a
majority of any class of Equity Security is owned, directly or indirectly, by
the Company.
r. Trust: means the trust established pursuant
to Section 7 hereof.
s. Voting Shares: means any issued and
outstanding shares of capital stock of the Company entitled to vote generally
in the election of directors.
2. Basic Indemnification Agreement. In
consideration of, and as an inducement to, the Indemnitee rendering valuable
services to the Company, the Company agrees that in
4
5
the event Indemnitee 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 Claim by reason of (or arising in part out of) an Indemnifiable Event, the
Company will indemnify Indemnitee to the fullest extent authorized by law,
against any and all Expenses and Losses (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses and Losses) of such Claim, whether or not such Claim proceeds to
judgment or is settled or otherwise is brought to a final disposition, subject
in each case, to the further provisions of this Agreement.
3. Limitations on Indemnification. Notwithstanding
the provisions of Section 2, Indemnitee shall not be indemnified and held
harmless from any Losses or Expenses (a) which have been Determined, as
provided herein, to constitute an Excluded Claim; (b) to the extent Indemnitee
is indemnified by the Company and has actually received payment pursuant to the
Restated Certificate of Incorporation, D&O Insurance, or otherwise; or (c)
other than pursuant to the last sentence of Section 4(d) or Section 14, in
connection with any Claim initiated by Indemnitee, unless the Company has
joined in or the Board of Directors has authorized such Claim.
4. Indemnification Procedures.
a. Promptly after receipt by Indemnitee of
notice of any Claim, Indemnitee shall, if indemnification with respect thereto
may be sought from the Company under this Agreement, notify the Company of the
commencement thereof and Indemnitee agrees further not to make any admission or
effect any settlement with respect to such Claim without the consent of the
Company, except any Claim with respect to which the Indemnitee has undertaken
the defense in accordance with the second to last sentence of Section 4(d).
b. If, at the time of the receipt of such
notice, the Company has D&O Insurance in effect, the Company shall give prompt
notice of the commencement of Claim to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all Losses and Expenses payable as a result of such Claim.
c. To the extent the Company does not, at the
time of the Claim have applicable D&O Insurance, or if a Determination is made
that any Expenses arising out of such Claim will not be payable under the D&O
Insurance then in effect, the Company shall be obligated to pay the Expenses of
any Claim in advance of the final disposition thereof and the Company, if
appropriate, shall be entitled to assume the defense of such Claim, with
counsel satisfactory to Indemnitee, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, the Company
will not be liable to Indemnitee under this Agreement for any legal or other
Expenses subsequently incurred by the Indemnitee in connection with such
defense other than reasonable Expenses of investigation; provided that
Indemnitee shall have the right to employ its counsel in such Claim but the
fees and expenses of such counsel incurred after delivery of notice from the
Company of its assumption of such defense shall be at the Indemnitee's expense;
provided further that if: (i) the employment of counsel by Indemnitee has been
previously authorized by the Company; (ii) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense; or (iii) the Company shall not,
in fact, have employed counsel to assume the defense of such action, the
reasonable fees and expenses of counsel shall be at the expense of the Company.
5
6
d. All payments on account of the Company's
indemnification obligations under this Agreement shall be made within sixty
(60) days of Indemnitee's written request therefor unless a Determination is
made that the Claims giving rise to Indemnitee's request are Excluded Claims or
otherwise not payable under this Agreement, provided that all payments on
account of the Company's obligation to pay Expenses under Section 4(c) of this
Agreement prior to the final disposition of any Claim shall be made within 20
days of Indemnitee's written request therefor and such obligation shall not be
subject to any such Determination but shall be subject to Section 4(e) of this
Agreement. In the event the Company takes the position that the Indemnitee is
not entitled to indemnification in connection with the proposed settlement of
any Claim, the Indemnitee shall have the right at its own expense to undertake
defense of any such Claim, insofar as such proceeding involves Claims against
the Indemnitee, by written notice given to the Company within 10 days after the
Company has notified the Indemnitee in writing of its contention that the
Indemnitee is not entitled to indemnification. If it is subsequently
determined in connection with such proceeding that the Indemnifiable Events are
not Excluded Claims and that the Indemnitee, therefore, is entitled to be
indemnified under the provisions of Section 2 hereof, the Company shall
promptly indemnify the Indemnitee.
e. Indemnitee hereby expressly undertakes and
agrees to reimburse the Company for all Losses and Expenses paid by the Company
in connection with any Claim against Indemnitee in the event and only to the
extent that a Determination shall have been made by a court of competent
jurisdiction in a decision from which there is no further right to appeal that
Indemnitee is not entitled to be indemnified by the Company for such Losses and
Expenses because the Claim is an Excluded Claim or because Indemnitee is
otherwise not entitled to payment under this Agreement.
5. Settlement. The Company shall have no obligation
to indemnify Indemnitee under this Agreement for any amounts paid in settlement
of any Claim effected without the Company's prior written consent. The Company
shall not settle any Claim in which it takes the position that Indemnitee is
not entitled to indemnification in connection with such settlement without the
consent of the Indemnitee, nor shall the Company settle any Claim in any manner
which would impose any Fine or any obligation on Indemnitee, without
Indemnitee's written consent. Neither the Company nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
6. Change in Control; Extraordinary Transactions.
The Company and Indemnitee agree that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority
of the Company's Board of Directors who were directors immediately prior to
such Change in Control) then all Determinations thereafter with respect to the
rights of Indemnitee to be paid Losses and Expenses under this Agreement shall
be made only by a special independent counsel (the "Special Independent
Counsel") selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld) or by a court of competent jurisdiction.
The Company shall pay the reasonable fees of such Special Independent Counsel
and shall indemnify such Special Independent Counsel against any and all
reasonable expenses (including reasonable attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
The Company covenants and agrees that, in the event of a
Change in Control of the sort set forth in clause (b) of Section 1(c), the
Company will use its best efforts (a) to have the obligations of the Company
under this Agreement including, but not limited to those under Section 7,
expressly assumed by the surviving, purchasing or succeeding entity, or (b)
otherwise to adequately provide for
6
7
the satisfaction of the Company's obligations under this Agreement, in a manner
reasonably acceptable to the Indemnitee.
7. Establishment of Trust. In the event of a
Potential Change in Control, the Company shall, upon written request by
Indemnitee, create a trust (the "Trust") for the benefit of the Indemnitee and
from time to time upon written request of Indemnitee shall fund the Trust in an
amount sufficient to satisfy any and all Losses and Expenses which are actually
paid or which Indemnitee reasonably determines from time to time may be payable
by the Company under this Agreement. The amount or amounts to be deposited in
the Trust pursuant to the foregoing funding obligation shall be determined by
the Reviewing Party, in any case in which the Special Independent Counsel is
involved. The terms of the Trust shall provide that upon a Change in Control:
(i) the Trust shall not be revoked or the principal thereof invaded without the
written consent of the Indemnitee; (ii) the trustee of the Trust shall advance,
within twenty days of a request by the Indemnitee, any and all Expenses to the
Indemnitee (and the Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which the Indemnitee would be required to reimburse the
Company under Section 4(e) of this Agreement); (iii) the Company shall continue
to fund the Trust from time to time in accordance with the funding obligations
set forth above; (iv) the trustee of the Trust shall promptly pay to the
Indemnitee all Losses and Expenses for which the Indemnitee shall be entitled
to indemnification pursuant to this Agreement; and (v) all unexpended funds in
the Trust shall revert to the Company upon a final determination by a court of
competent jurisdiction in a final decision from which there is no further right
of appeal that the Indemnitee has been fully indemnified under the terms of
this Agreement. The Trustee of the Trust shall be chosen by the Indemnitee.
8. No Presumption. For purposes of this Agreement,
the termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
9. Non-exclusivity, Etc. The rights of the
Indemnitee hereunder shall be in addition to any other rights Indemnitee may
have under the Restated Certificate of Incorporation, the Company's By-laws,
the Delaware General Corporation Law, any vote of stockholders or disinterested
directors or otherwise, both as to action in the Indemnitee's official capacity
and as to action in any other capacity by holding such office, and shall
continue after the Indemnitee ceases to serve the Company as a director,
officer, employee, agent or fiduciary, for so long as the Indemnitee shall be
subject to any Claim by reason of (or arising in part out of) an Indemnifiable
Event. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Restated Certificate of
Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
10. Liability Insurance. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee, if an officer or director of the Company,
shall be covered by such policy or policies, in accordance with its or their
terms, to the maximum extent of the coverage available for any director or
officer of the Company.
11. Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and shall do everything that may be necessary to secure such rights,
7
8
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
12. Partial Indemnity, Etc. If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses and Losses of a Claim but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of
any or all Claims relating in whole or in part to any Indemnifiable Event or in
defense of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith. In connection with any Determination as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
13. Liability of Company. The Indemnitee agrees that
neither the stockholders nor the directors nor any officer, employee,
representative or agent of the Company shall be personally liable for the
satisfaction of the Company's obligations under this Agreement and the
Indemnitee shall look solely to the assets of the Company for satisfaction of
any claims hereunder.
14. Enforcement.
Indemnitee's right to indemnification and other
rights under this Agreement shall be specifically enforceable by Indemnitee
only in the state or Federal courts of the States of Delaware or Maryland and
shall be enforceable notwithstanding any adverse Determination by the Company's
Board of Directors, independent legal counsel, the Special Independent Counsel
or the Company's stockholders and no such Determination shall create a
presumption that Indemnitee is not entitled to be indemnified hereunder. In
any such action the Company shall have the burden of proving that
indemnification is not required under this Agreement.
In the event that any action is instituted by
Indemnitee under this Agreement, or to enforce or interpret any of the terms of
this Agreement, Indemnitee shall be entitled to be paid all court costs and
reasonable expenses, including reasonable counsel fees, incurred by Indemnitee
with respect to such action, unless the court determines that each of the
material assertions made by Indemnitee as a basis for such action were not made
in good faith or were frivolous.
15. Severability. In the event that any provision of
this Agreement is determined by a court to require the Company to do or to fail
to do an act which is in violation of applicable law, such provision (including
any provision within a single section, paragraph or sentence) shall be limited
or modified in its application to the minimum extent necessary to avoid a
violation of law, and, as so limited or modified, such provision and the
balance of this Agreement shall be enforceable in accordance with their terms
to the fullest extent permitted by law.
16. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within such State.
17. Consent to Jurisdiction. The Company and the
Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the States of Delaware and Maryland for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement
8
9
and agree that any action instituted under this Agreement shall be brought only
in the state and Federal courts of the States of Delaware and Maryland.
18. Notices. All notices, or other communications
required or permitted hereunder shall be sufficiently given for all purposes if
in writing and personally delivered, telegraphed, telexed, sent by facsimile
transmission or sent by registered or certified mail, return receipt requested,
with postage prepaid addressed as follows, or to such other address as the
parties shall have given notice of pursuant hereto:
If to the Company, to:
CIENA Corporation
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Vice President and
General Counsel
If to the Indemnitee, to:
-------------------------------
-------------------------------
19. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one and the same instrument.
20. Successors and Assigns. This Agreement shall be
(i) binding upon all successors and assigns of the Company, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of the Company, and (ii)
shall be binding upon and inure to the benefit of any successors and assigns,
heirs, and personal or legal representatives of Indemnitee.
9
10
21. Amendment; Waiver. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless made in
a writing signed by each 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 (whether or not similar) nor shall such waiver
constitute a continuing waiver.
IN WITNESS WHEREOF, the Company and Indemnitee have executed
this Agreement as of the day and year first above written.
ATTEST: CIENA Corporation
[Corporate Seal]
By: By:
----------------------- -----------------------
Title: Title:
WITNESS:
-------------------------- --------------------------
Indemnitee
10
