{"id":40834,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnity-agreement-jds-uniphase-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnity-agreement-jds-uniphase-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnity-agreement-jds-uniphase-corp.html","title":{"rendered":"Indemnity Agreement – JDS Uniphase Corp."},"content":{"rendered":"

INDEMNIFICATION AGREEMENT <\/strong><\/p>\n

This Indemnification Agreement (“Agreement”) is made as of this day of 2011,
\nby and between JDS Uniphase Corporation, a Delaware corporation (the “Company”),
\nand (“Indemnitee”).<\/p>\n

WHEREAS, the Company and Indemnitee recognize the difficulty in obtaining
\ndirectors and officers liability insurance that fully and adequately covers
\ndirectors and officers for their acts and omissions on behalf of the Company and
\nits subsidiaries;<\/p>\n

WHEREAS, the Company and Indemnitee further recognize the substantial
\nincrease in corporate litigation in general, subjecting officers and directors
\nto expensive litigation risks that may not be fully covered by liability
\ninsurance;<\/p>\n

WHEREAS, Indemnitee does not regard the current protection available as
\nadequate under the present circumstances, and Indemnitee and other officers and
\ndirectors of the Company may not be willing to continue to serve as officers and
\ndirectors without additional protection; and<\/p>\n

WHEREAS, the Company desires to attract and retain the services of highly
\nqualified individuals, such as Indemnitee, to serve as officers and directors of
\nthe Company and to indemnify its officers and directors so as to provide them
\nwith the maximum protection permitted by law.<\/p>\n

NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:<\/p>\n

Section 1. Services By Indemnitee<\/em>. Indemnitee hereby agrees to serve
\nor continue to serve, at the will of the Company, as a director, officer or key
\nemployee of the Company, for as long as Indemnitee is duly elected or appointed,
\nas the case may be, or until Indemnitee tenders his or her resignation or is
\nremoved. For avoidance of doubt, the Company153s obligations under this Agreement
\nshall continue to the extent provided for in this Agreement, notwithstanding
\nthat Indemnitee may have ceased to be a director, officer or key employee of the
\nCompany at the time the Proceeding commenced.<\/p>\n

Section 2. Indemnification<\/em>.<\/p>\n

(a) General Indemnification<\/em>. In connection with any Proceeding, the
\nCompany shall, to the fullest extent permitted by applicable law as in effect on
\nthe date hereof or as may be amended from time to time to increase the scope of
\nsuch permitted indemnification, indemnify Indemnitee against any and all
\nExpenses and Liabilities, in either case, actually and reasonably incurred by
\nIndemnitee or on Indemnitee153s behalf by reason of Indemnitee153s Corporate Status
\nunless the Company shall establish, in accordance with the procedures described
\nin Section 3 of this Agreement, that Indemnitee did not act in good faith and in
\na manner Indemnitee reasonably believed to be in the best interests of the
\nCompany, and, with respect to any criminal Proceeding, had no reasonable cause
\nto believe Indemnitee153s conduct was unlawful.<\/p>\n

(b) Witness Expenses<\/em>. Notwithstanding any other provision of this
\nAgreement, to the extent that Indemnitee is, by reason of his or her Corporate
\nStatus, a witness in any Proceeding to which Indemnitee is not a party, he or
\nshe shall be indemnified against all Expenses incurred by Indemnitee or on his
\nor her behalf in connection therewith.<\/p>\n

(c) Mandatory Indemnification.<\/em> Notwithstanding any other provision
\nof this Agreement, except as provided in Section 11 of this Agreement, to the
\nextent that Indemnitee has been successful on the merits or otherwise in defense
\nof any Proceeding, Indemnitee shall be indemnified against all Expenses incurred
\nin connection therewith.<\/p>\n

\n

Section 3. Advancement of Expenses; Indemnification Procedure<\/em>.<\/p>\n

(a) Advancement of Expenses<\/em>. The Company shall advance all Expenses
\nincurred by Indemnitee in connection with any Proceeding referenced in Section
\n2(a) of this Agreement (but not amounts actually paid in settlement of any such
\nProceeding). The advances to be made hereunder shall be paid by the Company to
\nIndemnitee within 10 business days following delivery of a written request
\ntherefor by Indemnitee to the Company provided that such request is accompanied
\nby an undertaking by or on behalf of Indemnitee to repay the amount received
\npursuant to this Section 3(a) if it is ultimately determined that Indemnitee is
\nnot entitled to indemnification of such Expenses. Advances shall be unsecured
\nand interest free. Advances shall be made without regard to Indemnitee153s ability
\nto repay such amounts and without regard to Indemnitee153s ultimate entitlement to
\nindemnification under the other provisions of this Agreement. Advances shall
\ninclude any and all Expenses incurred pursuing an action to enforce this right
\nof advancement, including Expenses incurred preparing and forwarding statements
\nto the Company to support the advances claimed.<\/p>\n

(b) Notice by Indemnitee<\/em>. Indemnitee shall give the Company notice
\nin writing as soon as practicable of any Proceeding in respect of which
\nIndemnitee intends to seek indemnification or advancement of Expenses hereunder.
\nNotice to the Company shall be directed to the General Counsel of the Company at
\nthe address shown in Section 16(a) of this Agreement (or such other address as
\nthe Company shall designate in writing to Indemnitee). The omission by
\nIndemnitee to so notify the Company will not relieve the Company from any
\nliability that it may have to Indemnitee hereunder or otherwise.<\/p>\n

(c) Determination of Entitlement<\/em>.<\/p>\n

(i) Where there has been a written notice by Indemnitee for indemnification
\npursuant to Section 3(b), then as soon as is reasonably practicable (but in any
\nevent not later than 30 days) after final disposition of the relevant
\nProceeding, the Company shall make a determination, if and in the manner
\nrequired by applicable law, with respect to Indemnitee153s entitlement thereto;
\nprovided, however, that, if a Change in Control shall have occurred, the
\ndetermination shall be made by an Independent Counsel (selected pursuant to
\nSection 3(c)(ii)) in a written opinion to the Company153s Board of Directors, a
\ncopy of which shall be delivered to Indemnitee. If it is so determined that
\nIndemnitee is entitled to indemnification, payment to Indemnitee shall be made
\nwithin ten (10) business days after such determination. Indemnitee shall
\nreasonably cooperate with the person, persons or entity making such
\ndetermination with respect to Indemnitee153s entitlement to indemnification,
\nincluding providing to such person, persons or entity upon reasonable advance
\nrequest any documentation or information that is not privileged or otherwise
\nprotected from disclosure and that is reasonably available to Indemnitee and
\nreasonably necessary to such determination. Any costs or expenses (including
\nattorneys153 fees and disbursements) actually and reasonably incurred by
\nIndemnitee in so cooperating with the person, persons or entity making such
\ndetermination shall be borne by the Company (irrespective of the determination
\nas to Indemnitee153s entitlement to indemnification).<\/p>\n

(ii) If entitlement to indemnification is to be determined by an Independent
\nCounsel after a Change in Control pursuant to Section 3(c)(i), such Independent
\nCounsel shall be selected by Indemnitee and approved by the Company (which
\napproval will not be unreasonably withheld).<\/p>\n

(iii) The Company agrees to pay the reasonable fees and expenses of any
\nIndependent Counsel serving under this Agreement.<\/p>\n

\n

(d) Presumptions and Burdens of Proof<\/em>.<\/p>\n

(i) In making any determination with respect to entitlement to
\nindemnification hereunder, the person, persons or entity making such
\ndetermination shall, to the fullest extent not prohibited by law, presume that
\nIndemnitee is entitled to indemnification under this Agreement, and the Company
\nshall have, to the fullest extent not prohibited by law, the burden of proof to
\novercome that presumption in connection with the making of any determination
\ncontrary to that presumption. Neither the failure of the person, persons or
\nentity to have made a determination prior to the commencement of any action
\npursuant to this Agreement that indemnification is proper in the circumstances
\nbecause Indemnitee has met the applicable standard of conduct, nor an actual
\ndetermination by the person, persons or entity that Indemnitee has not met such
\napplicable standard of conduct, shall be a defense to the action or create a
\npresumption that Indemnitee has not met the applicable standard of conduct.<\/p>\n

(ii) The termination of any Proceeding or of any claim, issue or matter
\ntherein, by judgment, order, settlement or conviction, or upon a plea of nolo
\ncontendere or its equivalent, shall not (except as otherwise expressly provided
\nin this Agreement) of itself adversely affect the right of Indemnitee to
\nindemnification or create a presumption that Indemnitee did not act in good
\nfaith and in a manner that he or she reasonably believed to be in or not opposed
\nto the best interests of the Company or, with respect to any criminal
\nProceeding, that Indemnitee had reasonable cause to believe that Indemnitee153s
\nconduct was unlawful.<\/p>\n

(iii) For purposes of any determination of good faith, Indemnitee shall be
\ndeemed to have acted in good faith if Indemnitee153s action is in good faith
\nreliance on the records or books of account of any Enterprise, including
\nfinancial statements, or on information supplied to Indemnitee by the officers
\nof such Enterprise in the course of their duties, or on the advice of legal
\ncounsel for such Enterprise or on information or records given or reports made
\nto such Enterprise by an independent certified public accountant or by an
\nappraiser or other expert selected by such Enterprise. The provisions of this
\nSection 3(d)(iii) shall not be deemed to be exclusive or to limit in any way the
\nother circumstances in which Indemnitee may be deemed or found to have met the
\napplicable standard of conduct set forth in this Agreement.<\/p>\n

(e) Notice to Insurers<\/em>. If, at the time of the receipt of a notice
\nof a Proceeding pursuant to Section 3(b) of this Agreement, the Company has
\ndirector and officer liability insurance in effect, the Company shall give
\nprompt notice of the commencement of such Proceeding to the insurers in
\naccordance with the procedures set forth in the respective policies. Thereafter,
\nthe Company shall take all necessary or desirable action to cause such insurers
\nto pay, on behalf of the Indemnitee, all amounts payable as a result of such
\nProceeding in accordance with the terms of such policies.<\/p>\n

(f) Subrogation<\/em>. In the event of any payment under this Agreement,
\nthe Company shall be subrogated to the extent of such payment to all the rights
\nof recovery of Indemnitee, who will execute all papers required and shall do
\neverything that may be necessary to secure such rights, including the execution
\nof such documents necessary to enable the Company to effectively bring suit to
\nenforce such rights. The Company will pay or reimburse all expenses actually and
\nreasonably incurred by Indemnitee in connection with such subrogation.<\/p>\n

(g) Defense of Claims; Selection of Counsel<\/em>.<\/p>\n

(i) The Company shall not settle any action, claim, or Proceeding (in whole
\nor in part) that would impose any Expense, judgment, fine, penalty or limitation
\non Indemnitee, without Indemnitee153s prior written consent; provided, however,
\nthat, with respect to settlements requiring solely the payment of money either
\nby the Company or by Indemnitee for which the Company is obligated to reimburse
\nIndemnitee promptly and completely, in either case without recourse to
\nIndemnitee, no such consent of Indemnitee shall be required. Indemnitee shall
\nnot settle any action, claim or Proceeding (in whole or in part) that would
\nimpose any Expense, judgment, fine, penalty or limitation on the Company without
\nthe Company153s prior written consent, such consent not to be unreasonably
\nwithheld.<\/p>\n

\n

(ii) In the event the Company shall be obligated under Section 3(a) of this
\nAgreement to pay the Expenses of any Proceeding against Indemnitee, the Company,
\nif appropriate, shall be entitled to assume the defense of such proceeding, with
\ncounsel approved by Indemnitee, which approval shall not be unreasonably
\nwithheld, upon the delivery to Indemnitee of written notice of its election so
\nto do. After delivery of such notice, approval of such counsel by Indemnitee and
\nthe retention of such counsel by the Company, the Company will not be liable to
\nIndemnitee under this Agreement for any fees subsequently incurred by Indemnitee
\nwith respect to the same Proceeding, provided that (i) Indemnitee shall have the
\nright to employ Indemnitee153s own counsel in any such Proceeding at Indemnitee153s
\nexpense; and (ii) if (A) the employment of counsel by Indemnitee has been
\npreviously authorized by the Company (or, after a Change in Control, by
\nIndependent Counsel), (B) Indemnitee shall have concluded in good faith that
\nthere may be a conflict of interest between the Company and Indemnitee or
\nbetween Indemnitee and any other persons represented by the same counsel, in the
\nconduct of any such defense, or (C) the Company, in fact, shall not have
\nemployed counsel to assume the defense of such Proceeding, then the reasonable
\nfees and expenses of Indemnitee153s counsel shall be at the expense of the
\nCompany.<\/p>\n

Section 4. Remedies of Indemnitee<\/em>.<\/p>\n

(a) In the event of any dispute between Indemnitee and the Company hereunder
\nas to entitlement to indemnification, contribution or advancement of Expenses,
\nthen Indemnitee shall be entitled to enforce Indemnitee153s rights under this
\nAgreement by commencing litigation in any court in the States of California or
\nDelaware having subject matter jurisdiction threof. The Company hereby consents
\nto service of process and to appear in any such proceeding.<\/p>\n

(b) If Indemnitee commences a judicial proceeding or arbitration pursuant to
\nthis Section 4, Indemnitee shall not be required to reimburse the Company for
\nany advances pursuant to Section 3(a) until a final determination is made with
\nrespect to Indemnitee153s entitlement to indemnification (as to which all rights
\nof appeal have been exhausted or lapsed).<\/p>\n

(c) If a determination shall have been made pursuant to Section 3(c) of this
\nAgreement that Indemnitee is entitled to indemnification, the Company shall be
\nbound by such determination in any judicial proceeding or arbitration commenced
\npursuant to this Section 4, absent (i) a misstatement by Indemnitee of a
\nmaterial fact, or an omission of a material fact necessary to make Indemnitee153s
\nstatement not materially misleading, in connection with such determination of
\nIndemnitee153s entitlement to indemnification, or (ii) a prohibition of such
\nindemnification under applicable law.<\/p>\n

(d) The Company shall be precluded from asserting in any judicial proceeding
\nor arbitration commenced pursuant to this Section 4 that the procedures and
\npresumptions of this Agreement are not valid, binding or enforceable and shall
\nstipulate in any such court or before any such arbitrator that the Company is
\nbound by all the provisions of this Agreement.<\/p>\n

(e) The Company shall indemnify Indemnitee to the fullest extent permitted by
\nlaw against all Expenses incurred by Indemnitee in connection with any judicial
\nproceeding or arbitration brought by Indemnitee for (i) indemnification or
\nadvances of Expenses by the Company (or otherwise for the enforcement,
\ninterpretation or defense of his or her rights) under this Agreement or any
\nother agreement, including any other indemnification, contribution or
\nadvancement agreement, or any provision of the Company153s Certificate of
\nIncorporation or Bylaws now or hereafter in effect or (ii) recovery or advances
\nunder any directors and officers liability insurance policy maintained by the
\nCompany, regardless of whether Indemnitee ultimately is determined to be
\nentitled to such indemnification, contribution,<\/p>\n

\n

advancement or insurance recovery, as the case may be; provided, however,
\nthat this Section 4(e) shall not apply if, as part of such judicial proceeding
\nor arbitration, the court of competent jurisdiction or the arbitrator, as the
\ncase may be, determines that the material assertions made by Indemnitee as a
\nbasis for such judicial proceeding or arbitration were not made in good faith or
\nwere frivolous.<\/p>\n

Section 5. Additional Indemnification Rights; Nonexclusivity<\/em>.<\/p>\n

(a) Scope<\/em>. Notwithstanding any other provision of this Agreement,
\nthe Company hereby agrees to indemnify the Indemnitee to the fullest extent
\npermitted by law, notwithstanding that such indemnification is not specifically
\nauthorized by the other provisions of this Agreement, the Company153s Certificate
\nof Incorporation, the Company153s Bylaws or by statute. In the event of any
\nchange, after the date of this Agreement, in any applicable law, statute or rule
\nthat expands the right of a Delaware corporation to indemnify a member of its or
\na Subsidiary153s Board of Directors or an officer, such changes shall be,
\nipso facto, <\/em>within the purview of Indemnitee153s rights and the Company153s
\nobligations, under this Agreement. In the event of any change in any applicable
\nlaw, statute or rule that narrows the right of a Delaware corporation to
\nindemnify a member of the Board of Directors or an officer of the Company or a
\nSubsidiary, such changes, to the extent not otherwise required by such law,
\nstatute or rule to be applied to this Agreement, shall have no effect on this
\nAgreement or the parties153 rights and obligations hereunder.<\/p>\n

(b) Nonexclusivity<\/em>. The rights of indemnification, contribution and
\nadvancement of Expenses as provided by this Agreement shall not be deemed
\nexclusive of any rights to which Indemnitee may be entitled under the Company153s
\nCertificate of Incorporation, its Bylaws, any agreement, any vote of
\nstockholders or disinterested directors, the Delaware General Corporation Law,
\nor otherwise, both as to action in Indemnitee153s official capacity and as to
\naction or inaction in another capacity while holding such office; provided,
\nhowever, that this Agreement shall supersede any prior indemnification agreement
\nbetween the Company and Indemnitee. The indemnification provided under this
\nAgreement shall continue as to Indemnitee for any action taken or not taken
\nwhile serving in an indemnified capacity even though Indemnitee may have ceased
\nto serve in such capacity at the time any covered Proceeding commenced.<\/p>\n

Section 6. Partial Indemnification<\/em>. If Indemnitee is entitled under
\nany provision of this Agreement to indemnification by the Company for some or a
\nportion of the Expenses and Liabilities actually or reasonably incurred by
\nIndemnitee in any Proceeding, but not, however, for the total amount thereof,
\nthe Company shall nevertheless indemnify Indemnitee for the portion of such
\nExpenses and Liabilities to which Indemnitee is entitled.<\/p>\n

Section 7. Mutual Acknowledgment<\/em>. Both the Company and Indemnitee
\nacknowledge that, in certain instances, Federal law or applicable public policy
\nmay prohibit the Company from indemnifying its directors and officers under this
\nAgreement or otherwise. Indemnitee understands and acknowledges that the Company
\nhas undertaken or may be required in the future in certain circumstances to
\nundertake with the Securities and Exchange Commission to submit the question of
\nindemnification to a court for a determination of the Company153s right under
\npublic policy to indemnify Indemnitee.<\/p>\n

Section 8. Directors and Officers Liability Insurance<\/em>. The Company,
\nfrom time to time, shall make the good faith determination whether or not it is
\npracticable for the Company to obtain and maintain a policy or policies of
\ninsurance with reputable insurance companies providing the officers and
\ndirectors of the Company with coverage for losses from wrongful acts or to
\nensure the Company153s performance of its indemnification obligations under this
\nAgreement. Among other considerations, the Company will weigh the costs of
\nobtaining such insurance coverage against the protection afforded by such
\ncoverage. In all policies of directors and officers liability insurance,
\nIndemnitee shall be named as an insured in such a manner as to provide
\nIndemnitee the same rights and benefits as are accorded to the most favorably
\ninsured of the Company153s directors, if Indemnitee is a director; or of the
\nCompany153s officers, if<\/p>\n

\n

Indemnitee is not a director of the Company but is an officer.
\nNotwithstanding the foregoing, the Company shall have no obligation to obtain or
\nmaintain such insurance if the Company determines in good faith that such
\ninsurance is not reasonably available, if the premium costs for such insurance
\nare disproportionate to the amount of coverage provided, if the coverage
\nprovided by such insurance is limited by exclusions so as to provide an
\ninsufficient benefit, or if Indemnitee is covered by similar insurance
\nmaintained by a Subsidiary or parent of the Company.<\/p>\n

Section 9. Contribution<\/em>. To the fullest extent permissible under
\napplicable law, if the indemnification provided for in this Agreement is
\nunavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
\nindemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
\nwhether for Liabilities and\/or for Expenses, in connection with any Proceeding
\nrelating to an indemnifiable event under this Agreement, in such proportion as
\nis deemed fair and reasonable in light of all of the circumstances of such
\nProceeding in order to reflect (1) the relative benefits received by the Company
\nand Indemnitee as a result of the event(s) and\/or transaction(s) giving rise to
\nsuch Proceeding; and (2) the relative fault of the Company (and its directors,
\nofficers, employees and agents) and Indemnitee in connection with such event(s)
\nand\/or transaction(s).<\/p>\n

Section 10. Severability<\/em>. Nothing in this Agreement is intended to
\nrequire or shall be construed as requiring the Company to do or fail to do any
\nact in violation of applicable law. The Company153s inability, pursuant to court
\norder, to perform its obligations under this Agreement shall not constitute a
\nbreach of this Agreement. The provisions of this Agreement shall be severable as
\nprovided in this Section 10. If this Agreement or any portion hereof shall be
\ninvalidated on any ground by any court of competent jurisdiction, then the
\nCompany shall nevertheless indemnify Indemnitee to the full extent permitted by
\nany applicable portion of this Agreement that shall not have been invalidated,
\nand the balance of this Agreement not so invalidated shall be enforceable in
\naccordance with its terms.<\/p>\n

Section 11. Exceptions<\/em>. Any other provision herein to the contrary
\nnotwithstanding, the Company shall not be obligated pursuant to the terms of
\nthis Agreement:<\/p>\n

(a) Excluded Acts<\/em>. To indemnify Indemnitee for any acts or omissions
\nor transactions from which a director, officer, employee or agent may not be
\nrelieved of liability under applicable law; or<\/p>\n

(b) Claims Initiated by Indemnitee<\/em>. To indemnify or advance Expenses
\nto Indemnitee with respect to any Proceeding initiated or brought voluntarily by
\nIndemnitee and not by way of defense, except with respect to Proceedings brought
\nto establish or enforce a right to indemnification under this Agreement or any
\nother statute or law, but such indemnification or advancement of Expenses may be
\nprovided by the Company in specific cases if the Company153s Board of Directors
\n(or, after a Change in Control has occurred, Independent Counsel) has approved
\nthe initiation or bringing of such Proceeding; or<\/p>\n

(c) Lack of Good Faith<\/em>. To indemnify Indemnitee for any Expenses
\nincurred by the Indemnitee with respect to any Proceeding instituted by
\nIndemnitee to enforce or interpret this Agreement, if a court of competent
\njurisdiction determines that the material assertions made by the Indemnitee in
\nsuch Proceeding were not made in good faith or were frivolous; or<\/p>\n

(d) Insured Claims<\/em>. To indemnify Indemnitee for Expenses or
\nLiabilities that have been paid directly to Indemnitee by an insurance carrier
\nunder a policy of directors and officers liability insurance maintained by the
\nCompany; or<\/p>\n

(e) Claims under Section 16(b)<\/em>. To indemnify Indemnitee for Expenses
\nand the payment of profits arising from the purchase and sale by Indemnitee of
\nsecurities in violation of Section 16(b) of the Exchange Act or any similar
\nsuccessor statute; or<\/p>\n

\n

(f) Required Reimbursement<\/em>. To indemnify Indemnitee for any
\nreimbursement of the Company by Indemnitee of any bonus or other incentive-based
\nor equity-based compensation or of any profits realized by Indemnitee from the
\nsale of securities of the Company, as required in each case under the Exchange
\nAct (including any such reimbursements that (i) arise from an accounting
\nrestatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of
\n2002, or the payment to the Company of profits arising from the purchase and
\nsale by Indemnitee of securities in violation of Section 306 of the
\nSarbanes-Oxley Act of 2002, (ii) arise pursuant to regulations or policies
\nadopted in compliance with Section 954 of the Investor Protection and Securities
\nReform Act of 2010); or<\/p>\n

(g) Company Right to Participate in Defense.<\/em> To indemnify Indemnitee
\nfor Expenses or Liabilities if the Company was not given a reasonable time and
\nopportunity, at its expense, to participate in the defense of such action,
\nunless such participation was barred by this Agreement.<\/p>\n

Section 12. Effectiveness of Agreement<\/em>. This Agreement shall be
\neffective as of the date set forth on the first page and shall apply to acts or
\nomissions of Indemnitee which occurred prior to such date if Indemnitee was
\nserving in any Corporate Status at the time such act or omission occurred.<\/p>\n

Section 13. Construction of Certain Phrases<\/em>.<\/p>\n

(a) As used in this Agreement:<\/p>\n

“Change in Control<\/strong>” means any one of the following
\ncircumstances occurring after the date hereof: (i) any “person” or “group” (as
\nsuch terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall have
\nbecome, without prior approval of the Company153s Board of Directors by approval
\nof at least a majority of the Continuing Directors, the “beneficial owner” (as
\ndefined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
\nsecurities of the Company representing 40% or more of the combined voting power
\nof the Company153s then outstanding voting securities (provided that, for purposes
\nof this clause (i), the term “person” shall exclude (x) the Company, (y) any
\ntrustee or other fiduciary holding securities under an employee benefit plan of
\nthe Company, and (z) any corporation owned, directly or indirectly, by the
\nstockholders of the Company in substantially the same proportions as their
\nownership of stock of the Company); (ii) there occurs a merger or consolidation
\nof the Company with any other entity, other than a merger or consolidation which
\nwould result in the voting securities of the Company outstanding immediately
\nprior to such merger or consolidation continuing to represent (either by
\nremaining outstanding or by being converted into voting securities of the
\nsurviving entity) more than 51% of the combined voting power of the voting
\nsecurities of the surviving entity outstanding immediately after such merger or
\nconsolidation and with the power to elect at least a majority of the board of
\ndirectors or other governing body of such surviving entity; (iii) all or
\nsubstantially all the assets of the Company are sold or disposed of in a
\ntransaction or series of related transactions; (iv) the approval by the
\nstockholders of the Company of a complete liquidation of the Company; or (v) the
\nContinuing Directors cease for any reason to constitute at least a majority of
\nthe members of the Company153s Board of Directors.<\/p>\n

“Continuing Director<\/strong>” means (i) each director on the
\nCompany153s Board of Directors on the date hereof or (ii) any new director whose
\nelection or nomination for election by the Company153s stockholders was approved
\nby a vote of at least two-thirds of the directors then still in office who were
\ndirectors on the date hereof or whose election or nomination was so approved.\n<\/p>\n

“Corporate Status<\/strong>” means the status of a person who is or
\nwas a director, officer, trustee, general partner, managing member, fiduciary,
\nboard of directors153 committee member, employee or agent of the Company or of any
\nother Enterprise.<\/p>\n

“Enterprise<\/strong>” means the Company, any Subsidiary and any other
\ncorporation, limited liability company, partnership, joint venture, trust,
\nemployee benefit plan or other enterprise of which Indemnitee is or was serving
\nat the request of the Company as a director, officer, trustee, general partner,
\nmanaging member, fiduciary, board of directors153 committee member, employee or
\nagent.<\/p>\n

\n

“ERISA<\/strong>” means the Employee Retirement Income Security Act of
\n1974, as amended.<\/p>\n

“Exchange Act<\/strong>” means the Securities Exchange Act of 1934, as
\namended.<\/p>\n

“Expenses<\/strong>” means all direct and indirect costs (including
\nwithout limitation attorneys153 fees, retainers, court costs, transcripts, fees of
\nexperts, witness fees, travel expenses, duplicating costs, printing and binding
\ncosts, telephone charges, postage, delivery service fees, and all other
\ndisbursements or expenses) reasonably and actually incurred in connection with
\n(i) prosecuting, defending, preparing to prosecute or defend, investigating,
\nbeing or preparing to be a witness in, or otherwise participating in, a
\nProceeding or (ii) establishing or enforcing a right to indemnification under
\nthis Agreement, the Company153s Certificate of Incorporation or Bylaws, applicable
\nlaw or otherwise. Expenses also shall include Expenses incurred in connection
\nwith any appeal resulting from any Proceeding, including the premium, security
\nfor, and other costs relating to any cost bond, supersedeas bond, or other
\nappeal bond or its equivalent. For the avoidance of doubt, however, Expenses
\nshall not include any Liabilities.<\/p>\n

“Independent Counsel<\/strong>” means a law firm, or a member of a law
\nfirm, that is experienced in matters of corporate law and neither currently is,
\nnor in the five years prior to its selection or appointment has been, retained
\nto represent (i) the Company or Indemnitee in any matter material to either such
\nparty (other than with respect to matters concerning Indemnitee under this
\nAgreement or of other indemnitees under similar indemnification agreements), or
\n(ii) any other party to the Proceeding giving rise to a claim for
\nindemnification hereunder. Notwithstanding the foregoing, the term “Independent
\nCounsel” shall not include any person who, under the applicable standards of
\nprofessional conduct then prevailing, would have a conflict of interest in
\nrepresenting either the Company or Indemnitee in an action to determine
\nIndemnitee153s rights under this Agreement.<\/p>\n

“Liabilities<\/strong>” means any losses or liabilities, including
\nwithout limitation any judgments, fines, ERISA excise taxes and penalties,
\npenalties and amounts paid in settlement, arising out of or in connection with
\nany Proceeding (including all interest, assessments and other charges paid or
\npayable in connection with or in respect of any such judgments, fines, ERISA
\nexcise taxes and penalties, penalties or amounts paid in settlement).<\/p>\n

“Proceeding<\/strong>” means any threatened, pending or completed
\naction, derivative action, suit, claim, counterclaim, cross claim, arbitration,
\nalternate dispute resolution mechanism, investigation, inquiry, administrative
\nhearing or any other actual, threatened or completed proceeding, whether civil
\n(including intentional and unintentional tort claims), criminal, administrative
\nor investigative, including any appeal therefrom, and whether instituted by or
\non behalf of the Company or any other party, or any inquiry or investigation
\nthat Indemnitee in good faith believes might lead to the institution of any such
\naction, suit or other proceeding hereinabove listed in which Indemnitee was, is
\nor will be involved as a party, potential party, non-party witness or otherwise
\nby reason of any Corporate Status of Indemnitee, or by reason of any action
\ntaken (or failure to act) by him or her or of any action (or failure to act) on
\nhis or her part while serving in any Corporate Status.<\/p>\n

(b) For purposes of this Agreement:<\/p>\n

References to “Company” shall include, in addition to the resulting
\ncorporation, any constituent corporation (including any constituent of a
\nconstituent) absorbed in a consolidation or merger that, if its separate
\nexistence had continued, would have had power and authority to indemnify its
\ndirectors, officers, employees or agents, so that, if Indemnitee is or was a
\ndirector, officer, employee or agent of such constituent corporation, or is or
\nwas serving at the request of such constituent corporation as a director,<\/p>\n

\n

officer, employee or agent of another corporation, partnership, joint
\nventure, trust or other enterprise, Indemnitee shall stand in the same position
\nunder the provisions of this Agreement with respect to the resulting or
\nsurviving corporation as Indemnitee would have with respect to such constituent
\ncorporation if its separate existence had continued.<\/p>\n

References to “Subsidiary” shall include a corporation, company or other
\nentity:<\/p>\n

(i) 50% or more of whose outstanding shares or securities (representing the
\nright to vote for the election of directors or other managing authority) are, or\n<\/p>\n

(ii) that does not have outstanding shares or securities (as may be the case
\nin a partnership, joint venture or unincorporated association), but 50% or more
\nof whose ownership interest representing the right to make decisions for such
\nother entity is,<\/p>\n

now or hereafter, owned or controlled, directly or indirectly, by the
\nCompany, or one or more Subsidiaries.<\/p>\n

References to “other enterprises” shall include employee benefit plans;
\nreferences to “fines” shall include any excise taxes assessed on Indemnitee with
\nrespect to an employee benefit plan; and references to “serving at the request
\nof the Company” shall include any service as a director, officer, employee or
\nagent of the Company that imposes duties on, or involves services by, such
\ndirector, officer, employee or agent with respect to an employee benefit plan,
\nits participants, or beneficiaries.<\/p>\n

Section 14. Counterparts<\/em>. This Agreement may be executed in one or
\nmore counterparts, each of which shall constitute an original.<\/p>\n

Section 15. Successors and Assigns<\/em>. This Agreement shall be binding
\nupon the Company and its successors and assigns and shall inure to the benefit
\nof Indemnitee and Indemnitee153s estate, heirs, legal representatives and assigns.
\nThe Company shall require and cause any successor (whether direct or indirect by
\npurchase, merger, consolidation or otherwise) to all or substantially all of the
\nbusiness and\/or assets of the Company, by written agreement in form and
\nsubstance satisfactory to Indemnitee, expressly to assume and agree to perform
\nthis Agreement in the same manner and to the same extent that the Company would
\nbe required to perform if no such succession had taken place.<\/p>\n

Section 16. Notice<\/em>. All notices, requests, demands and other
\ncommunications under this Agreement shall be in writing and shall be deemed duly
\ngiven (i) if delivered by hand or recognized courier and receipted for by the
\nparty addressee, on the date of such receipt, (ii) if mailed by domestic
\ncertified or registered mail with postage prepaid, on the third business day
\nafter the date postmarked, or (iii) if sent by confirmed facsimile, on the date
\nsent. Notices shall be addressed as follows:<\/p>\n

(a) if to the Company:<\/p>\n

JDS Uniphase Corporation<\/p>\n

430 North McCarthy Blvd.<\/p>\n

Milpitas, California 95035<\/p>\n

Attention: General Counsel;<\/p>\n

(b) if to Indemnitee, to the address of Indemnitee set forth under
\nIndemnitee153s signature below; or to such other address or attention of such
\nother person as any party shall advise the other parties in writing.<\/p>\n

Section 18. Choice of Law<\/em>. This Agreement shall be governed by and
\nits provisions construed in accordance with the laws of the State of Delaware as
\napplied to contracts made and to be performed in such State without giving
\neffect to its principals of conflicts of laws.<\/p>\n

\n

Section 19. Amendments<\/em>. No supplement, modification, or amendment of
\nthis Agreement shall be binding unless executed in writing by both of the
\nparties hereto. No waiver of any of the provisions of this Agreement shall be
\nbinding unless in the form of a writing signed by the party against whom
\nenforcement of the waiver is sought. Except as specifically provided herein, no
\nfailure to exercise or any delay in exercising any right or remedy hereunder
\nshall constitute a waiver thereof.<\/p>\n

\n

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
\ndate first above written.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

JDS Uniphase Corporation<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Andrew Pollack<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

General Counsel and Secretary<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

INDEMNITEE<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

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