Exhibit 10.1
JUNIPER NETWORKS, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is effective as of
___________, by and between Juniper Networks, Inc., a Delaware corporation (the
"Company"), and ________________ (the "Indemnitee").
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, in order to induce Indemnitee to continue to provide services to
the Company, the Company wishes to provide for the indemnification of, and
advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, Indemnitee does not regard the current protection available as
adequate under the present circumstances, and the Indemnitee and certain other
directors, officers, employees, agents and fiduciaries of the Company may not be
willing to continue to serve in such capacities without additional protection;
WHEREAS, the Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for the Company's directors, officers, employees,
agents and fiduciaries, the significant and continual increases in the cost of
such insurance and the general trend of insurance companies to reduce the scope
of coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and scope of coverage of liability insurance provide
increasing challenges for the Company; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified by the Company as set forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth
below.
1. Certain Definitions.
(a) "Business Day" shall mean any day other than a Saturday, Sunday
or other day on which banks in the State of Delaware are required or permitted
to be closed.
(b) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (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 acting in such capacity
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, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange
Act), directly or indirectly, of securities of the Company representing more
than 50% of the total 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 of Directors of the
Company and any new director whose election by the Board of Directors 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 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 of (in one transaction or a series of
related transactions) all or substantially all of the Company's assets.
(c) "Claim" shall mean any threatened, pending or completed action,
suit, proceeding, arbitration or other alternative dispute resolution mechanism
whether brought by or in the right of the Company or otherwise, or any hearing,
inquiry or investigation that Indemnitee in good faith believes might lead to
the institution of any such action, suit, proceeding, arbitration or other
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other, or any appeal therefrom.
(d) References to the "Company" shall include, in addition to
Juniper Networks, Inc., any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which Juniper
Networks, Inc. (or any of its wholly owned subsidiaries) is a party which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
(e) "Expenses" shall mean any expenses including, without
limitation, fees, charges and disbursements of counsel and all other costs,
expenses and obligations paid or incurred by Indemnitee 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.
(f) "Expense Advance" shall mean an advance payment of Expenses to
Indemnitee pursuant to Section 3(a).
(g) "Indemnifiable Event" shall mean any event or occurrence,
whether occurring on, prior to, or after the date of this Agreement, related to
(i) the fact that Indemnitee is or was a director, officer, employee, trustee,
agent or fiduciary of the Company, or any subsidiary of the Company, or is or
was serving at the request of or for the convenience of or to
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represent the interests of the Company as a director, officer, employee,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or (ii) any action or inaction
on the part of Indemnitee while serving in any capacity set forth in clause (i),
including, without limitation, any breach of duty, neglect, error, misstatement,
misleading statement, omission, or other act done or wrongfully attempted by the
Indemnitee, or any of the foregoing alleged by any claimant, in any such
capacity.
(h) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(c), who shall
not have otherwise performed services for the Company or Indemnitee within the
last three years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement or the Trust Agreement, or of other indemnitees
under similar indemnity agreements).
(i) "Losses" shall mean (i) 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, fines, penalties and sums or amounts paid in settlement (if such
settlement is approved in advance by the Company) of a Claim or Claims, and (ii)
to the extent not paid in advance pursuant to the terms of this Agreement or the
Trust Agreement for any reason, Expenses.
(j) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request or for the convenience or to represent the interests of the
Company" shall include any service as a director, officer, employee, agent or
fiduciary of the Company which imposes duties on, or involves services by, such
director, officer, employee, agent or fiduciary with respect to an employee
benefit plan, its participants or its beneficiaries; and if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan, Indemnitee
shall be deemed to have acted in a manner "not opposed to the best interests of
the Company" as referred to in this Agreement.
(k) "Reviewing Party" shall mean 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 of Directors who is not a party to
the particular Claim for which Indemnitee is seeking indemnification or
Independent Legal Counsel as provided in Section 2(c).
(l) "Trust" has the meaning set forth in Section 3(f).
(m) "Trust Agreement" has the meaning set forth in Section 3(f).
(n) "Voting Securities" shall mean any securities of the Company (or
a surviving entity as described in the definition of a "Change in Control") that
vote generally in the election of directors.
2. Indemnification.
(a) Agreement to Indemnify. If 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, to the maximum extent permitted by
law, indemnify Indemnitee against, and will
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make Expense Advances from time to time of, 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, but excluding amounts
paid in settlement of any Claim if such settlement was not approved by the
Company) arising from or relating to such Claim, whether or not such Claim
proceeds to judgment or is settled or otherwise is brought to a disposition. If
requested by Indemnitee, the Company agrees that it will not unreasonably
withhold its consent to any proposed settlement of any such Claim. Such payment
of Expenses and Losses shall be made by the Company as soon as practicable after
written demand by Indemnitee therefor is presented to the Company, but in any
event payment of a demand for an Expense Advance shall be made not later than
five (5) Business Days after the receipt by the Company of written demand
therefor, which is accompanied by an explanation in reasonable detail and copies
of invoices received by Indemnitee in connection with such Expenses (but, in the
case of invoices in connection with legal services, any reference 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).
(b) Reviewing Party's Role. Notwithstanding the provisions of
Section 2(a), (i) the obligations of the Company under Section 2(a) to make
indemnification payments for Losses shall be subject to the condition that the
Reviewing Party shall have determined (in a written opinion, in any case in
which Independent Legal Counsel is the Reviewing Party) that Indemnitee would be
permitted to be indemnified under this Agreement and applicable law, and (ii)
the obligation of the Company to make an Expense Advance shall be unconditional
with no need for approval by the Reviewing Party. If a court specified in
Section 15 ultimately determines that Indemnitee was not entitled as a matter of
law to retain any Expense Advance previously made by the Company or the Trust,
Indemnitee hereby agrees to reimburse the Company (or, if such Expense Advance
was made by the Trust, the Trust) for any such amount, provided that if
Indemnitee contests such entitlement in a proceeding or has commenced or
thereafter commences legal proceedings in such court to secure a determination
that Indemnitee should be indemnified under applicable law, any determination
made by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under this Agreement or 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 lapsed).
Indemnitee's obligation to reimburse the Company for any Expense Advance shall
be unsecured and no interest shall be charged thereon. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or in
part under this Agreement or applicable law, Indemnitee shall have the right to
commence litigation seeking an initial determination by the court or challenging
any such determination by the Reviewing Party or any aspect thereof, including
the legal or factual bases therefor, and the Company hereby consents to service
of process and to appear in any such proceeding. Absent such litigation, any
determination by the Reviewing Party shall be conclusive and binding on the
Company and Indemnitee.
(c) The Reviewing Party in Various Circumstances. For matters that
require a determination by the Reviewing Party in respect of Losses, the
Reviewing Party shall be the following:
(i) If Indemnitee is a director or officer claiming a right to
indemnity for Losses under this Agreement or under the Company's Certificate of
Incorporation or Bylaws at the time a determination by the Reviewing Party is
required (a "Current Director or Officer") and if no Change in Control has
occurred that was not approved by a majority of the Company's
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Board of directors who were directors immediately prior to such Change in
Control (any such non-preapproved transaction, a "Triggering Change in
Control"), then the Reviewing Party will be the members of the Company's Board
of Directors who are not parties to the Claim for which indemnification is being
sought, or a committee of such directors designated by majority vote of the
directors who are not parties to the Claim for which indemnification is being
sought, or if such directors or committee so decide, the Independent Legal
Counsel.
(ii) If Indemnitee is not a Current Director or Officer and no
Triggering Change in Control has occurred, then the Reviewing Party will be the
Company's chief executive officer or chief financial officer, acting on behalf
of the Company, unless the Indemnitee expressly demands in writing at the time
that he or she makes a demand for indemnification of a Loss that Independent
Legal Counsel be the Reviewing Party, in which event Independent Legal Counsel
shall be the Reviewing Party.
(iii) If a Triggering Change in Control has occurred, then the
Reviewing Party will be Independent Legal Counsel unless Indemnitee, in its sole
discretion, waives the right to have Independent Legal Counsel be the Reviewing
Party, in which case the Reviewing Party will be the members of the Company's
Board of Directors who are not parties to the Claim.
(iv) If, notwithstanding clauses (i) or (ii) of this
subsection 2(c), Indemnitee seeks indemnification for Losses under the Trust,
rather than seeking indemnification directly from the Company, the Reviewing
Party will be Independent Legal Counsel.
In all circumstances where Independent Legal Counsel is the Reviewing
Party, Grover Brown will serve as Independent Legal Counsel unless he is no
longer meets the definition of Independent Legal Counsel in Section 1(h) or is
no longer willing or able to serve as such. If the named Independent Legal
Counsel resigns, is unable to perform his duties as Independent Legal Counsel or
no longer meets the definition of Independent Legal Counsel in Section 1(h),
another person or firm meeting the definition of Independent Legal Counsel in
Section 1(h) shall be selected as successor Independent Legal Counsel in the
manner contemplated by the Trust Agreement, in which event such successor
Independent Legal Counsel shall be the Independent Legal Counsel for purposes of
this Agreement.
(d) Independent Legal Counsel Opinion. In any case in which
Independent Legal Counsel is acting as the Reviewing Party, such counsel, among
other things, shall render its written opinion to the Company and Indemnitee as
to whether and to what extent Indemnitee would be permitted to be indemnified
under this Agreement and applicable law and the Company agrees to abide by such
opinion. The Company agrees to pay a reasonable retainer fee and the reasonable
fees, charges and disbursements of any Independent Legal Counsel selected to act
as the Reviewing Party and to indemnify fully such counsel against any and all
expenses (including reasonable fees, charges and disbursements of counsel),
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto. Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay expenses of more than one
Independent Legal Counsel in connection with all matters concerning the
Indemnitee, and such Independent Legal Counsel shall be the Independent Legal
Counsel for any or all other indemnitees making indemnification claims that
relate to the same Claim as the Indemnitee's unless (i) the Company otherwise
determines or (ii) any
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Indemnitee shall provide a written statement setting forth in detail a
reasonable objection to such Independent Legal Counsel making any determination
with respect to other indemnitees.
(e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10, to the extent that Indemnitee
has been successful on the merits or otherwise, including, without limitation,
the dismissal of an action without prejudice, in defense of any Claim regarding
any Indemnifiable Event, Indemnitee shall be indemnified against all Expenses
incurred by Indemnitee in connection therewith.
(f) Action to Compel Payment. If a claim for indemnification for
Losses or any Expense Advance pursuant to this Agreement is not paid in full for
any reason (including, but not limited to, a decision adverse to the Indemnitee
by the Reviewing Party, or the failure of the Reviewing Party to render its
determination) within five (5) Business Days of the date of demand, in the case
of Expense Advance, or thirty (30) days of the date of demand in the case of any
other claim for indemnification of Losses or Expenses, then Indemnitee may file
suit to recover the unpaid amount of such claim in a court specified in Section
15. The provisions of Sections 3(c) and 13 shall be applicable to any such
action.
3. Expenses; Indemnification Procedure.
(a) Expense Advances. Expense Advances to be made hereunder shall be
paid by the Company to Indemnitee as soon as practicable but in any event no
later than five (5) Business Days after written demand by Indemnitee therefor to
the Company. Nothing set forth herein shall prevent the Indemnitee from making a
demand upon the Trust for payment of Expense Advances.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to receive Expense Advances and to be
indemnified for Losses under this Agreement, give the Company notice in writing
as soon as practicable of any Claim made against Indemnitee relating to an
Indemnifiable Event for which a request for Expense Advance or for which
indemnification for Losses will or could be sought under this Agreement. Notice
to the Company shall be directed to the Chief Executive Officer of the Company
at the address shown on the signature page of this Agreement (or such other
address as the Company shall designate in writing to Indemnitee). In addition,
Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee's power.
(c) Burden of Proof; No Presumption Against Indemnitee. Indemnitee's
right to indemnification shall be enforceable by Indemnitee in the court
specified in Section 15 and shall be enforceable notwithstanding any adverse
determination by the Reviewing Party. In any action in which Indemnitee seeks to
receive Expense Advances or indemnification for Losses, the Company shall be
required to make the requested payment unless it satisfies the burden of proving
that the Expense Advances or indemnification for Losses are not permitted by
applicable law or are not required under this Agreement. 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 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 Expense Advances or indemnification for Losses
is not permitted by applicable law or hereunder. In addition, neither the
failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Reviewing
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Party that Indemnitee has not met such standard of conduct or did not have such
belief, prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be entitled to receive Expense
Advances or be indemnified for Losses under applicable law, shall be a defense
to Indemnitee's claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.
(d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim relating to an Indemnifiable Event pursuant to
Section 3(b), the Company has liability insurance in effect which may cover such
Claim, the Company shall give prompt notice of the commencement of such 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 the Indemnitee, all amounts payable as
a result of such Claim in accordance with the terms of such policies.
(e) Selection of Counsel. In any Claim made against Indemnitee
relating to an Indemnifiable Event for which a request for Expense Advance or
for which indemnification for Losses will or could be sought under this
Agreement, the Company shall be entitled to assume the defense of such Claim
with counsel approved by Indemnitee (not to be unreasonably withheld) upon the
delivery to Indemnitee of written notice of the Company's election so to do.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Claim; provided that, (i) Indemnitee shall
have the right to employ Indemnitee's separate counsel in any such Claim at
Indemnitee's expense and (ii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized by the Company, (B) 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 (C) the Company
shall not continue to retain such counsel to defend such Claim, then the fees
and expenses of Indemnitee's separate counsel shall be at the expense of the
Company.
(f) The Trust.
(i) The Company has established a trust for the benefit of the
Indemnitee and certain other beneficiaries (the "Trust") pursuant to an
Indemnification Trust Agreement dated June 23, 2003 (the "Trust Agreement"),
among the Company, Bank of New York (Delaware), as trustee, and Lisa Berry, as
the initial Beneficiaries' Representative. In addition to Indemnitee's other
rights under this Agreement, the Company's Certificate of Incorporation and
Bylaws and any insurance policies, Indemnitee shall have the right to receive
payments in respect of Expense Advances and indemnification for Losses in the
manner provided in this Agreement and the Trust Agreement. Indemnitee hereby
confirms that the beneficiaries' representative acting from time to time under
the Trust Agreement, including all replacement representatives (each, the
"Beneficiaries' Representative"), shall be Indemnitee's agent and
attorney-in-fact to pursue demands for payment of Expense Advances or
indemnification for Losses as provided in the Trust Agreement.
(ii) Indemnitee may request payment of Expense Advances or
indemnification for Losses either under the Trust Agreement out of the trust
funds under the Trust (the "Trust Fund") or from the Company, or both, under
this Agreement, in its discretion. Any such request by the Indemnitee shall be
made to the Beneficiaries' Representative with a copy to the Company under the
notice procedures specified in the Trust Agreement.
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(iii) Upon receipt by the Company of a copy of notice from
Indemnitee to the Beneficiaries' Representative requesting payment of any
Expense Advance, the Company shall have the right promptly to make any such
payment in its discretion in lieu of having such payment made out of the Trust
Fund.
(iv) From and after receipt by the Company of a copy of notice
from Indemnitee to the Beneficiaries' Representative requesting payment of
indemnification for Losses out of the Trust Fund, the Company will cooperate
reasonably to facilitate a determination by Independent Legal Counsel as
Reviewing Party with respect thereto.
4. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to make Expense Advances to,
and indemnify, the Indemnitee to the fullest extent permitted by law,
notwithstanding that such Expense Advances and indemnification are not
specifically authorized by the other provisions of this Agreement, the Company's
Certificate of Incorporation, the Company's Bylaws or by statute. In the event
of any change after the date of this Agreement in any applicable law, statute or
rule which expands the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, employee, agent or fiduciary, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits afforded by such change. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations hereunder except
as set forth in Section 9(a).
(b) Nonexclusivity. The rights to Expense Advances and
indemnification provided by this Agreement shall be in addition to any rights to
which Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, the Trust Agreement, any other agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise. The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though Indemnitee may have ceased
to serve in such capacity.
5. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment of
the amounts otherwise indemnifiable hereunder under the Trust, any insurance
policy, provision of the Company's Certificate of Incorporation, Bylaw or
otherwise.
6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses or Losses incurred in connection with any Claim, but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses or Losses to which
Indemnitee is entitled.
7. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to
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submit the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
8. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.
9. Exceptions. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for acts,
omissions or transactions from which Indemnitee may not be indemnified under
applicable law.
(b) Claims Initiated by Indemnitee. To indemnify for Losses or make
Expense Advances to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except (i) with respect to
actions or proceedings brought to establish or enforce a right to receive
Expense Advances or indemnification for Losses under this Agreement, the Trust
Agreement or any other agreement or insurance policy or under the Company's
Certificate of Incorporation or Bylaws now or hereafter in effect relating to
Claims for Indemnifiable Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Delaware Law.
(c) Lack of Good Faith. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
10. Period of Limitations. No legal action relating to the entitlement
of Indemnitee to Expense Advances or indemnification for Losses shall be brought
and no such cause of action shall be asserted by or in the right of the Company
against Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective
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successors, assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company), spouses, heirs and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect, and whether by purchase, merger, consolidation or otherwise)
to all, substantially all, or a substantial part, of the business or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place, provided that if the Company continues to
exist it shall remain jointly and severally liable with such successor for the
obligations hereunder. This Agreement shall continue in effect regardless of
whether Indemnitee continues to serve as a director, officer, employee, agent or
fiduciary (as applicable) of the Company or of any other enterprise at the
Company's request.
13. Attorneys' Fees. If any action is instituted by Indemnitee under
this Agreement or under the Trust Agreement or under any liability insurance
policies maintained by the Company to enforce or interpret any of the terms
hereof or thereof, Indemnitee shall be entitled to be paid all Expenses incurred
by Indemnitee with respect to such action, regardless of whether Indemnitee is
ultimately successful in such action, and shall be entitled to the advancement
of Expenses with respect to such action, unless as a part of such action a court
of competent jurisdiction over such action 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. In the event of an action instituted by or in the right
of the Company under this Agreement to enforce or interpret any of the terms of
this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by
Indemnitee in defense of such action (including costs and expenses incurred with
respect to Indemnitee's counterclaims and cross-claims made in such action), and
shall be entitled to the advancement of Expenses with respect to such action,
unless as a part of such action a court having jurisdiction over such action
determines that each of Indemnitee's material defenses to such action were made
in bad faith or were frivolous.
14. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third Business Day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice. So long as this Agreement and the
Trust Agreement remain in effect, the Company agrees to provide prompt written
notice of the name and address of the Beneficiaries' Representative and each
change of address or of the Beneficiaries' Representative from time to time
under the Trust Agreement.
15. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement, and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim. The Company
and Indemnitee irrevocably waive any right to object that any action brought in
such court is in an inconvenient forum.
16. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise
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unenforceable, and the remaining provisions shall remain enforceable to the
fullest extent permitted by law. Furthermore, to the fullest extent possible,
the provisions of this Agreement (including, without limitations, each portion
of this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
17. Choice of Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the laws of the State of
Delaware as applied to contracts between Delaware residents entered into and to
be performed entirely within the State of Delaware.
18. 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 documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.
20. Integration and Entire Agreement. This Agreement and the Trust
Agreement set forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.
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21. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
COMPANY
JUNIPER NETWORKS, INC.
By:
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Name:
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Title:
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Address: Juniper Networks, Inc.
1194 N. Mathilda Avenue
Sunnyvale, CA 94089-1206
Attention: General Counsel & Secretary
Facsimile: 408-745-8910
INDEMNITEE
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Address:
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Facsimile:
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