INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
"Agreement") is entered into as of this ___ day of _________, 199__, by and
among Maker Communications, Inc., a Delaware corporation (the "Company"), and
the indemnitee listed on the signature page hereto (the "Indemnitee").
RECITALS
A. The Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for its directors, officers, employees,
shareholders, controlling persons, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance.
B. The Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, controlling persons, shareholders, agents and fiduciaries to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited.
C. Indemnitee does not regard the current protection available as
adequate under the present circumstances, and Indemnitee and other directors,
officers, employees, shareholders, controlling persons, agents and fiduciaries
of the Company may not be willing to serve in such capacities without additional
protection.
D. The Company (i) desires to attract and retain the involvement of
highly qualified individual and entities, such as Indemnitee, to serve the
Company and, in part, in order to induce the Indemnitee to be involved with the
Company and (ii) wishes to provide for the indemnification and advancing of
expenses to the Indemnitee to the maximum extent permitted by law.
E. In view of the considerations set forth above, the Company desires
that the Indemnitee be indemnified by the Company as set forth herein.
NOW, THEREFORE, the Company and the Indemnitee hereby
agrees as follows:
1. Indemnification.
a. Indemnification of Expenses. The Company
shall indemnify and hold harmless Indemnitee (including his partners,
affiliates, employees, agents and spouse) and each person who controls any of
them or who may be liable within the meaning of Section 15 of the Securities Act
of 1933, as amended (the "Securities Act"), or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), to the fullest extent
permitted by law if Indemnitee
was or 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, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
believes might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a "Claim") by reason of (or
arising in part or in whole out of) any event or occurrence related to the fact
that Indemnitee is or was or may be deemed a director, officer, employee,
controlling person, agent or fiduciary of the Company, or any subsidiary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, controlling person, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of such Indemnitee while serving in such
capacity including, without limitation, any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit, proceeding or any claim asserted) under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise or which relate directly or indirectly to
the registration, purchase, sale or ownership of any securities of the Company
or to any fiduciary obligation owed with respect thereto (hereinafter an
"Indemnification Event") against any and all expenses (including attorneys' fees
and all other costs, expenses and obligations incurred in connection with
investigating, defending a witness in or participating in (including on appeal),
or preparing to defend, be a witness in or participate in, any such action,
suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or
investigation), judgments, fines, penalties and amounts paid in settlement (if
such settlement is approved in advance by the Company, which approval shall not
be unreasonably withheld) of such Claim and any federal, state, local or foreign
taxes imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement (collectively, hereinafter "Expenses"), including
all interest, assessments and other charges paid or payable in connection with
or in respect of such Expenses. Such payment of Expenses shall be made by the
Company as soon as practicable but in any event no later than ten (10) days
after written demand by the Indemnitee therefor is presented to the Company.
b. Reviewing Party. Notwithstanding the
foregoing, (i) the obligations of the Company under Section 1(a) shall be
subject to the condition that the Reviewing Party (as described in Section 10(e)
hereof) shall not have determined (in a written opinion, in any case in which
the Independent Legal Counsel referred to in Section 1(e) hereof is involved)
that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) and Indemnitee acknowledges and agrees that the obligation of the
Company to make an advance payment of Expenses to Indemnitee pursuant to Section
2(a) (an "Expense Advance") shall be subject to the condition that, if, when and
to the extent that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction 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 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 not been a Change in Control (as defined
in Section 10(c) hereof), the Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control (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), the
Reviewing Party shall be the Independent Legal Counsel referred to in Section
1(e) hereof. 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 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. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.
c. Contribution. If the indemnification provided
for in Section 1(a) above for any reason is held by a court of competent
jurisdiction to be unavailable to an Indemnitee in respect of any losses,
claims, damages, expenses or liabilities referred to therein, then the Company,
in lieu of indemnifying such Indemnitee thereunder, shall contribute to the
amount paid or payable by Indemnitee as a result of such losses, claims,
damages, expenses or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Indemnitee, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Indemnitee in connection with the action or inaction which
resulted in such losses, claims, damages, expenses or liabilities, as well as
any other relevant equitable considerations. In connection with the registration
of the Company's securities, the relative benefits received by the Company and
the Indemnitee shall be deemed to be in the same respective proportions that the
net proceeds from the offering (before deducting expenses) received by the
Company and the Indemnitee, in each case as set forth in the table on the cover
page of the applicable prospectus, bear to the aggregate public offering price
of the securities so offered. The relative fault of the Company and the
Indemnitee shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Indemnitee agree that it
would not be just and equitable if contribution pursuant to this Section 1(c)
were determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In connection with the registration
of the Company's securities, in no event shall Indemnitee be required to
contribute any amount under this Section 1(c) in excess of the lesser of (i)
that proportion of the total of such losses, claims, damages or liabilities
indemnified against equal to the proportion of the total securities sold under
such registration statement which is being sold by Indemnitee or (ii) the
proceeds received by Indemnitee from its sale
of securities under such registration statement. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
d. Survival Regardless of Investigation. The
indemnification and contribution provided for in this Section 1 will remain in
full force and effect regardless of any investigation made by or on behalf of
the Indemnitee or any officer, director, employee, agent or controlling person
of the Indemnitee.
e. Change in Control. After the date hereof, the
Company agrees 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, with respect to all matters thereafter arising concerning the rights of
Indemnitee to payments of Expenses under this Agreement or any other agreement
or under the Company's Certificate of Incorporations or Bylaws as now or
hereafter in effect, Independent Legal Counsel (as defined in Section 10(d)
hereof) shall be selected by the Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld). 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 applicable
law. The Company agrees to abide by such opinion and to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
f. Mandatory Payment of Expenses.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in the defense of any
action, suit, proceeding, inquiry or investigation referred to in Section 1(a)
hereof or in the defense of any claim, issue or matter therein, Indemnitee shall
be indemnified against all Expenses incurred by Indemnitee in connection
herewith.
2. Expenses; Indemnification Procedure.
a. Advancement of Expenses. The Company shall
advance all Expenses incurred by Indemnitee. The 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 days after written demand by such Indemnitee therefor
to the Company.
b. Notice/Cooperation by Indemnitee. Indemnitee
shall give the Company notice as soon as practicable of any Claim made against
Indemnitee for which indemnification 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).
c. No Presumptions; Burden of Proof. 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 indemnification is not
permitted by applicable law. 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 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 indemnified 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. In connection with
any determination by the Reviewing Party or otherwise 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.
d. Notice to Insurers. If, at the time of the
receipt by the Company of a notice of a Claim pursuant to Section 2(b) hereof,
the Company has liability insurance in effect which may cover such Claim, the
Company shall give prompt written notice of the commencement of such Claim to
the insurers in accordance with the procedures set forth in each of the
policies. The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such action, suit, proceeding, inquiry or investigation in accordance
with the terms of such policies.
e. Selection of Counsel. In the event the
Company shall be obligated hereunder to pay the Expenses of any Claim, the
Company shall be entitled to assume the defense of such Claim, with counsel
reasonably approved by the applicable Indemnitee, upon the delivery to
Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by the 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) the Indemnitee shall have the
right to employ Indemnitee's counsel in any such Claim at the Indemnitee's
expense; (ii) the Indemnitee shall have the right to employ his own counsel in
connection with any such proceeding, at the expense of the Company, if such
counsel serves in a review, observer, advice and counseling capacity and does
not otherwise materially control or participate in the defense of such
proceeding; and (iii) if (A) the employment of counsel by the Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there is 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 the Indemnitee's counsel shall be at the expense of the Company. The Company
shall have the right to conduct such defense as it sees fit in its sole
discretion, including the right to settle any claim against any Indemnitee
without the consent of Indemnitee.
3. Additional Indemnification Rights;
Nonexclusivity.
a. Scope. The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted by law, even if such indemnification
is 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, controlling person,
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 8(a) hereof.
b. Nonexclusivity. The 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, any
agreement, any vote of shareholders 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
Indemnitee took or did not take while serving in an indemnified capacity even
though the Indemnitee may have ceased to serve in such capacity.
4. No Duplication of Payments. The Company shall
not be liable under this Agreement to make any payment in connection with any
Claim made against any Indemnitee to the extent Indemnitee has otherwise
actually received payment (under any insurance policy, Certificate of
Incorporation, Bylaws or otherwise) of the amounts otherwise indemnifiable
hereunder.
5. Partial Indemnification. If any Indemnitee is
entitled under any provision of this Agreement to indemnification by the Company
for any portion of Expenses 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 to which Indemnitee is
entitled.
6. Mutual Acknowledgment. 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, controlling persons, agents or fiduciaries under this
Agreement or otherwise. Each Indemnitee understands and acknowledges that the
Company has undertaken or may be required to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's rights under public
policy to indemnify Indemnitee.
7. Liability Insurance. To the extent the
Company maintains liability insurance applicable to directors, officers,
employees, control persons, agents or fiduciaries, each Indemnitee shall be
covered by such policies in such a manner as to provide Indemnitee the same
rights and benefits as are accorded 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, controlling
persons, agents or fiduciaries, if Indemnitee is not an officer or director but
is a key employee, agent, control person, or fiduciary.
8. Exceptions. Any other provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:
a. Claims Initiated by Indemnitee. To indemnify
or advance expenses to any 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 to establish or enforce a right to indemnify
under this 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 section 145 of Delaware General Corporation Law,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be; or
b. Claims Under Section 16(b). To indemnify any
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 Exchange
Act or any similar successor statute; or
c. Claims Excluded Under Section 145 of the
Delaware General Corporation Law. To indemnify an Indemnitee if (i) he did not
act in good faith and in a manner reasonably believed to be in or not opposed to
the best interests of the Company, or (ii) with respect to any criminal action
or proceeding, Indemnitee had reasonable cause to believe his conduct was
unlawful, or (iii) Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent the court in which such action was brought
shall permit indemnification as provided in Section 145(b) of the Delaware
General Corporation Law.
9. Period of Limitations. No legal action shall
be brought and no cause of action shall be asserted by or in the right of the
Company against any Indemnitee, any Indemnitee's estate, spouse, heirs,
executors or personal or legal representatives after the expiration of five (5)
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 five (5) 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.
10. Construction of Certain Phrases.
a. For purposes of this Agreement, references to
the "Company" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger 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 or may be deemed a
director, officer, employee, agent, control person, or fiduciary of such
constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee, control
person, 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 each Indemnitee would have with respect to
such constituent corporation if its separate existence had continued.
b. For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on any Indemnitee with respect to an
employee benefit plan; and references to "serving at the request 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 any 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.
c. For purposes of this Agreement a "Change in
Control" shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the shareholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, (A) who is or becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 10% or more of the combined voting
power of the Company's then outstanding Voting Securities, increases his
beneficial ownership of such securities by 5% or more over the percentage so
owned by such person, or (B) becomes the "beneficial owner" (as defined in Rule
13d-3 under said Exchange Act), directly or indirectly, of securities of the
Company representing more than 20% 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 shareholders 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 shareholders 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
shareholders 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 transactions) all or substantially all of the
Company's assets.
d. For purposes of this Agreement, "Independent
Legal Counsel" shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 1(e)
hereof, who shall not have otherwise performed services for the Company or any
Indemnitee within the last three (3) years (other than with respect to matters
concerning the right of any Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
e. For purposes of this Agreement, a "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.
f. For purposes of this Agreement, "Voting
Securities" shall mean any securities of the Company that vote generally in the
election of directors.
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 successors, assigns, 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, spouses,
heirs, and personal and legal representatives. The Company shall require and
cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business and/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. This Agreement
shall continue in effect with respect to Claims relating to Indemnifiable Events
regardless of whether any Indemnitee continues to serve as a director, officer,
employee, agent, controlling person, or fiduciary of the Company or of any other
enterprise, including subsidiaries of the Company, at the Company's request.
13. Attorneys' Fees. In the event that any
action is instituted by an Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, any 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 was not made in good faith or was frivolous. In the event of an
action instituted by or in the name of the Company under this Agreement to
enforce or interpret any of the terms of this Agreement, the 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
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 was made in bad faith or was
frivolous.
14. Notice. All notices and other communications
required or permitted hereunder shall be in writing, shall be effective when
given, and shall in any event be deemed to be given (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand, (c) one business day after the business day of deposit with Federal
Express or similar overnight courier, freight prepaid, or (d) one day after the
business day of delivery by facsimile transmission, if deliverable by facsimile
transmission, with copy by first class mail, postage prepaid, and shall be
addressed if to Indemnitee, at each Indemnitee's business address and if to the
Company, at the address of its principal corporate offices (attention:
Secretary) or at such other address as such party may designate by ten (10)
days' advance written notice to the other party hereto.
15. Consent to Jurisdiction. The Company and
Indemnitee each hereby irrevocably consent to the jurisdiction and venue 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.
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
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, without regard to the conflict of laws principles thereof.
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 all parties hereto. Notice of same shall be
provided to all parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed 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 sets 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.
21. No Construction as Employment Agreement.
Nothing contained in this Agreement shall be construed as giving the Indemnitee
any right to be retained in the employ of the Company or any of its
subsidiaries.
22. Corporate Authority. The Board of Directors
of the Company and its shareholders have approved the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this Indemnification Agreement on and as of the day and year first
above written.
MAKER COMMUNICATIONS, INC.,
a Delaware corporation
By: ___________________________________
Title: ____________________________________
INDEMNITEE:
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