WINTEGRA, INC. INDEMNIFICATION AGREEMENT
WINTEGRA,
INC.
THIS
AGREEMENT is entered into, effective as
of
_____________ by and between Wintegra, Inc., a Delaware corporation (the
“Company”),
and
__________
(“Indemnitee”),
effective as of the date that the Registration Statement on Form S-1 related
to
the initial public offering of the Company’s Common Stock is declared effective
by the United States Securities and Exchange Commission.
WHEREAS,
it is essential to the Company to retain and attract as directors and officers
the most capable persons available;
WHEREAS,
Indemnitee is a director and/or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation
and
other claims currently being asserted against directors and officers of
corporations;
WHEREAS,
the Certificate of Incorporation and Bylaws of the Company require the Company
to indemnify and advance expenses to its directors and officers to the fullest
extent permitted under Delaware law, and the Indemnitee has been serving and
continues to serve as a director and/or officer of the Company in part in
reliance on the Company’s Certificate of Incorporation and Bylaws;
and
WHEREAS,
in recognition of Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the aforesaid Certificate
of Incorporation and Bylaws, (ii) specific contractual assurance that the
protection promised by the Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to
or
revocation of the Certificate of Incorporation and Bylaws or any change in
the
composition of the Company’s Board of Directors or acquisition transaction
relating to the Company) and (iii) an inducement to provide effective
services to the Company as a director and/or officer, the Company wishes to
provide in this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted under Delaware law and as set forth in this Agreement, and, to the
extent insurance is maintained, to provide for the continued coverage of
Indemnitee under the Company’s directors’ and officers’ liability insurance
policies.
NOW,
THEREFORE, in consideration of the above premises and of Indemnitee continuing
to serve the Company directly or, at its request, with another enterprise,
and
intending to be legally bound hereby, the parties agree as follows:
1. Certain
Definitions:
(a) “Board”
shall
mean the Board of Directors of the Company.
(b) “Affiliate”
shall
mean any corporation or other person or entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with, the person specified, including, without limitation, with
respect to the Company, any direct or indirect subsidiary of the
Company.
(c) A
“Change
in Control”
shall
be deemed to have occurred if (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 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, and other than any person holding shares
of
the Company on the date that the Company first registers under the Act or any
transferee of such individual if such transferee is a spouse or lineal
descendant of the transferee or a trust for the benefit of the individual,
his
or her spouse or lineal descendants), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing [30%]
or
more 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 and any
new
director whose election by the Board 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 of the Board, (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other entity, other than a merger or consolidation that 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
(iv) 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 (in
one transaction or a series of transactions) of all or substantially all of
the
Company’s assets.
(d) “Expenses”
shall
mean any expense, liability or loss, including attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties, amounts paid or to be paid in
settlement, any interest, assessments or other charges imposed thereon, any
federal, state, local or foreign taxes imposed as a result of the actual or
deemed receipt of any payments under this Agreement and all other costs and
obligations, paid or incurred in connection with investigating, defending,
being
a witness in, participating in (including on appeal) or preparing for any of
the
foregoing in, any Proceeding relating to any Indemnifiable Event.
(e) “Indemnifiable
Event”
shall
mean any event or occurrence that takes place either prior to or after the
execution of this Agreement, related to the fact that Indemnitee is or was
a
director or officer of the Company
or an
Affiliate
of the
Company,
or
while a director or officer is or was serving at the request of the
Company
or an
Affiliate
of the
Company as a director, officer, employee, trustee, agent or fiduciary of another
foreign or domestic corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise or was a director, officer, employee or agent
of
a foreign or domestic corporation that was a predecessor corporation of the
Company or of another enterprise at the request of such predecessor corporation,
or related to anything done or not done by Indemnitee in any such capacity,
whether or not the basis of the Proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent of the
Company
or an
Affiliate
of the
Company,
as
described above.
(f) “Independent
Counsel”
shall
mean the person or body appointed in connection with
Section 3.
(g) “Proceeding”
shall
mean any threatened, pending or completed action, suit or proceeding or any
alternative dispute resolution mechanism (including an action by or in the
right
of the Company
or an
Affiliate
of the
Company)
or any
inquiry, hearing or investigation, whether conducted by the Company
or an
Affiliate
of the
Company or any other party, that Indemnitee in good faith believes might lead
to
the institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(h) “Reviewing
Party”
shall
mean the person or body appointed in accordance with
Section 3.
(i) “Voting
Securities”
shall
mean any securities of the Company that vote generally in the election of
directors.
2. Agreement
to Indemnify.
(a) General
Agreement.
In the
event Indemnitee was, 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
Proceeding by reason of (or arising in part out of) an Indemnifiable Event,
the
Company shall indemnify Indemnitee from and against any and all Expenses to
the
fullest extent permitted by law, as the same exists or may hereafter be amended
or interpreted (but in the case of any such amendment or interpretation, only
to
the extent that such amendment or interpretation permits the Company to provide
broader indemnification rights than were permitted prior thereto). The parties
hereto intend that this Agreement shall provide for indemnification in excess
of
that expressly permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of Incorporation, its
Bylaws, vote of its stockholders or disinterested directors or applicable
law.
(b) Initiation
of Proceeding.
Notwithstanding anything in this Agreement to the contrary, Indemnitee shall
not
be entitled to indemnification pursuant to this Agreement in connection with
any
Proceeding initiated by Indemnitee against the Company or any director or
officer of the Company unless (i) the Company has joined in or the Board
has consented to the initiation of such Proceeding, (ii) the Proceeding is
one to enforce indemnification rights under Section 5 or (iii) the
Proceeding is instituted after a Change in Control (other than a Change in
Control approved by a majority of the directors on the Board who were directors
immediately prior to such Change in Control) and Independent Counsel has
approved its initiation.
(c) Expense
Advances.
If so
requested by Indemnitee, the Company shall advance (within
thirty
(30) days of such request) any and all Expenses to Indemnitee (an “Expense
Advance”). The Indemnitee shall qualify for such Expense Advances upon the
execution and delivery to the Company of this Agreement which shall constitute
an undertaking providing that the Indemnitee undertakes to repay such Expense
Advances if and to the extent that it is ultimately determined by a court of
competent jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company. Indemnitee’s
obligation to reimburse the Company for Expense Advances shall be unsecured
and
no interest shall be charged thereon. This Section 2(c) shall not apply to
any
claim made by Indemnitee for which indemnity is excluded pursuant to Section
2(b) or 2(f).
(d) Mandatory
Indemnification.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
(e) Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
(f) Prohibited
Indemnification.
No
indemnification pursuant to this Agreement shall be paid by the Company on
account of any Proceeding in which a
final
judgment
is rendered against Indemnitee or Indemnitee enters into a settlement, in each
case (i) for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Exchange Act or similar provisions of any federal,
state or local laws;
(ii)
for which payment has actually been made to or on behalf of Indemnitee under
any
insurance policy or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other indemnity provision;
or (iii) for which payment is prohibited by law.
Notwithstanding anything to the contrary stated or implied in this Section
2(f),
indemnification pursuant to this Agreement relating to any Proceeding against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Exchange Act or similar provisions of any federal,
state or local laws shall not be prohibited if Indemnitee ultimately
establishes in any Proceeding that no recovery of such profits from Indemnitee
is permitted under Section 16(b) of the Exchange Act or similar provisions
of
any federal, state or local laws.
3. Reviewing
Party.
Prior
to any Change in Control, the Reviewing Party shall be any appropriate person
or
body consisting of a member or members of the Board or any other person or
body
appointed by the Board who is not a party to the particular Proceeding with
respect to which Indemnitee is seeking indemnification; provided that if all
members of the Board are parties to the particular Proceeding with respect
to
which Indemnitee is seeking indemnification, the Independent Counsel referred
to
below shall become the Reviewing Party; after a Change in Control, the
Independent Counsel referred to below shall become the Reviewing Party. With
respect to all matters arising before a Change in Control for which Independent
Counsel shall be the Reviewing Party and all matters arising after a Change
in
Control, in each case concerning
the rights of Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement or under applicable law or the Company’s
Certificate of Incorporation or Bylaws now or hereafter in effect relating
to
indemnification for Indemnifiable Events, the Company shall seek legal advice
only from Independent Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld
or
delayed),
and
who has not otherwise performed services for the Company or the Indemnitee
(other than in connection with indemnification matters) within the last five
years. The Independent Counsel shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement. Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee should be permitted
to be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the Independent Counsel and to indemnify fully such counsel against
any
and all expenses (including attorneys’ fees), claims, liabilities, loss and
damages arising out of or relating to this Agreement or the engagement of
Independent Counsel pursuant hereto.
4. Indemnification
Process and Appeal.
(a) Indemnification
Payment.
Indemnitee shall be entitled to indemnification of Expenses, and shall receive
payment thereof, from the Company in accordance with this Agreement as soon
as
practicable after Indemnitee has made written demand on the Company for
indemnification, but
in no
event later than thirty (30) business days after demand, unless
the Reviewing Party has given a written opinion to the Company that Indemnitee
is not entitled to indemnification under applicable law. Indemnitee shall
cooperate with the Reviewing Party making a determination with respect to
Indemnitee's entitlement to indemnification, including providing to the
Reviewing Party upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to such
determination.
(b) Suit
to Enforce Rights.
Regardless of any action by the Reviewing Party, if Indemnitee has not received
full indemnification within thirty
(30)
days
after making a demand in accordance with Section 4(a), Indemnitee shall
have the right to enforce its indemnification rights under this Agreement by
commencing litigation in any court in the State of California or the State
of
Delaware having subject matter jurisdiction thereof seeking an initial
determination by the court or challenging any determination by the Reviewing
Party or any aspect thereof. The Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party
not challenged by the Indemnitee shall be binding on the Company and Indemnitee.
The Company shall be precluded from asserting in any such proceeding that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Company is bound
by
all the provisions of this Agreement. The remedy provided for in this
Section 4 shall be in addition to any other remedies available to
Indemnitee at law or in equity.
(c) Defense
to Indemnification, Burden of Proof, and Presumptions.
It
shall be a defense to any action brought by Indemnitee against the Company
to
enforce this Agreement (other than an action brought to enforce a claim for
Expenses incurred in defending a Proceeding in advance of its final disposition)
that it is not permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed. In connection with any such action or any
determination by the Reviewing Party or otherwise as to whether Indemnitee
is
entitled to be indemnified hereunder, the burden of proving such a defense
or
determination shall be on the Company. Neither the failure of the Reviewing
Party or the Company (including its Board, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action by Indemnitee that indemnification of the claimant is proper under the
circumstances because Indemnitee has met the standard of conduct set forth
in
applicable law, nor an actual determination by the Reviewing Party or Company
(including its Board, independent legal counsel or its stockholders) that the
Indemnitee had not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. For purposes of this Agreement, the termination
of any claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval), 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. For purposes of any determination of good faith under any applicable
standard of conduct, Indemnitee shall be deemed to have acted in good faith
if
Indemnitee’s action is based on the records or books of account of the Company,
including financial statements, or on information supplied to Indemnitee by
the
officers of the Company in the course of their duties, or on the advice of
legal
counsel for the Company or the Board or counsel selected by any committee of
the
Board or on information or records given or reports made to the Company by
an
independent certified public accountant or by an appraiser, investment banker
or
other expert selected with reasonable care by the Company or the Board or any
committee of the Board. The provisions of the preceding sentence shall not
be
deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of conduct.
The
knowledge and/or actions, or failure to act, or any director, officer, agent
or
employee of the Company shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
5. Indemnification
for Expenses Incurred in Enforcing Rights.
The
Company shall indemnify Indemnitee against any and all Expenses that are
incurred by Indemnitee in connection with any action brought by Indemnitee
for
(i) indemnification
or advance payment of Expenses by the Company under this Agreement or any other
agreement or under applicable law or the Company’s Certificate of Incorporation
or Bylaws now or hereafter in effect relating to indemnification for
Indemnifiable Events, and/or
(ii) recovery
under directors’ and officers’ liability insurance policies maintained by the
Company;
but only
in the event that Indemnitee ultimately is determined to be entitled to such
indemnification or insurance recovery, as the case may be. In addition, the
Company shall, if so requested by Indemnitee, advance the foregoing Expenses
to
Indemnitee, subject to and in accordance with Section 2(c).
6. Notification
and Defense of Proceeding.
(a) Notice.
Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee shall, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company will not relieve the Company
from any liability that it may have to Indemnitee, except as provided in
Section 6(c).
(b) Defense.
With
respect to any Proceeding as to which Indemnitee notifies the Company of the
commencement thereof, the Company will be entitled to participate in the
Proceeding at its own expense and except as otherwise provided below, to the
extent the Company so wishes, it may assume the defense thereof with counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense of any Proceeding, the Company
shall not be liable to Indemnitee under this Agreement or otherwise for any
Expenses subsequently incurred by Indemnitee in connection with the defense
of
such Proceeding other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ legal counsel in
such
Proceeding, but all Expenses related thereto incurred after notice from the
Company of its assumption of the defense shall be at Indemnitee’s expense
unless: (i) the employment of legal counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee has reasonably determined that
there may be a conflict of interest between Indemnitee and the Company in the
defense of the Proceeding, (iii) after a Change in Control,
the
employment of counsel by Indemnitee has been approved by the Independent Counsel
or (iv) the Company shall not in fact have employed counsel to assume the
defense of such Proceeding, in each of which cases all Expenses of the
Proceeding shall be borne by the Company. The Company shall not be entitled
to
assume the defense of any Proceeding brought by or on behalf of the Company,
or
as to which Indemnitee shall have made the determination provided for in (ii)
above or under the circumstances provided for in (iii) and (iv)
above.
(c) Settlement
of Claims.
The
Company shall not be liable to indemnify Indemnitee under this Agreement or
otherwise for any amounts paid in settlement of any Proceeding effected without
the Company’s written consent, such consent not to be unreasonably withheld;
provided, however, that if a Change in Control has occurred,
the
Company shall be liable for indemnification of Indemnitee for amounts paid
in
settlement if the Independent Counsel has approved the settlement. The Company
shall not settle any Proceeding in any manner that would impose any penalty
or
limitation on Indemnitee without Indemnitee’s written consent. The Company shall
not be liable to indemnify the Indemnitee under this Agreement with regard
to
any judicial award if the Company was not given a reasonable and timely
opportunity
as a
result of Indemnitees’ failure to provide notice,
at its
expense, to participate in the defense of such action,
and the
lack of such notice materially prejudiced the Company’s ability to participate
in defense of such action. The
Company’s liability hereunder shall not be excused if participation in the
Proceeding by the Company was barred by this Agreement.
7. [Establishment
of Trust.
In the
event of a Change in Control,
the
Company shall, upon written request by Indemnitee, create a Trust for the
benefit of the Indemnitee and from time to time upon written request of
Indemnitee shall fund the Trust in an amount sufficient to satisfy any and
all
Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for, participating in, and/or
defending any Proceeding relating to an Indemnifiable Event. The amount or
amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by the Independent Counsel. The terms of the
Trust shall provide that (i) the Trust shall not be revoked or the
principal thereof invaded without the written consent of the Indemnitee,
(ii) the Trustee shall advance, within thirty
(30)
days of
a request by the Indemnitee, any and all Expenses to the Indemnitee (and the
Indemnitee hereby agrees to reimburse the Trust under the same circumstances
for
which the Indemnitee would be required to reimburse the Company under
Section 2(c) of this Agreement), (iii) the Trust shall continue to be
funded by the Company in accordance with the funding obligation set forth above,
(iv) the Trustee shall promptly pay to the Indemnitee all amounts for which
the Indemnitee shall be entitled to indemnification pursuant to this Agreement
or otherwise
no later
than thirty (30) days after notice pursuant to Section 4(a)
and
(v) all unexpended funds in the Trust shall revert to the Company upon a
final determination by the Independent Counsel or a court of competent
jurisdiction, as the case may be, that the Indemnitee has been fully indemnified
under the terms of this Agreement. The Trustee shall be chosen by the
Indemnitee. Nothing in this Section 7 shall relieve the Company of any of
its obligations under this Agreement. All income earned on the assets held
in
the Trust shall be reported as income by the Company for federal, state, local
and foreign tax purposes. The Company shall pay all costs of establishing and
maintaining the Trust and shall indemnify the Trustee against any and all
expenses (including attorneys’ fees), claims, liabilities, loss and damages
arising out of or relating to this Agreement or the establishment and
maintenance of the Trust.]
8. Non-Exclusivity.
The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Company’s Certificate of Incorporation, Bylaws,
applicable law or otherwise; provided, however, that this Agreement shall
supersede any prior indemnification agreement between the Company and the
Indemnitee. To the extent that a change in applicable law (whether by statute
or
judicial decision) permits greater indemnification than would be afforded
currently under the Company’s Certificate of Incorporation, Bylaws, applicable
law or this Agreement, it is the intent of the parties that Indemnitee enjoy
by
this Agreement the greater benefits so afforded by such change.
9. Liability
Insurance.
To the
extent the Company maintains an insurance policy or policies providing general
and/or directors’ and officers’ liability insurance, Indemnitee shall be covered
by such policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available for any Company director or
officer.
10. Period
of Limitations.
No
legal action shall be brought and no cause of action shall be asserted by or
on
behalf of the Company or any Affiliate of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal representatives after
the expiration of two
(2)
years
from the date of accrual of such cause of action or such longer period as may
be
required by state law under the circumstances. Any claim or cause of action
of
the Company or its Affiliate shall be extinguished and deemed released unless
asserted by the timely filing and notice of a legal action within such period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, the shorter period shall
govern.
11. Amendment
of this Agreement.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be binding unless in the form of a writing
signed by the party against whom enforcement of the waiver is sought, and no
such waiver shall operate as a waiver of any other provisions hereof (whether
or
not similar), nor shall such waiver constitute a continuing waiver. Except
as
specifically provided herein, no failure to exercise or any delay in exercising
any right or remedy hereunder shall constitute a waiver thereof.
12. Subrogation.
In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who
shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
13. 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 received payment (under any insurance policy, Bylaw or otherwise)
of
the amounts otherwise indemnifiable hereunder.
14. Duration
of Agreement.
This
Agreement shall continue until and terminate upon the later of (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a director
or
officer of the Company or (b) one (1) year after the final termination of
any Proceeding, including any appeal, then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 4(b) of this Agreement relating thereto.
15. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (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), assigns,
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. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
pertaining to an Indemnifiable Event even though Indemnitee may have ceased
to
serve in such capacity at the time of any Proceeding.
16. Severability.
If any
provision (or portion thereof) of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, (a)
the
remaining provisions shall remain enforceable to the fullest extent permitted
by
law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the
intent of the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, 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, void or unenforceable.
17. Contribution.
To the
fullest extent permissible under applicable law, whether or not the
indemnification provided for in this Agreement is available to Indemnitee for
any reason whatsoever, the Company shall pay all or a portion of the amount
that
would otherwise be incurred by Indemnitee for Expenses in connection with any
claim relating to an Indemnifiable Event, as is deemed fair and reasonable
in
light of all of the circumstances of such Proceeding in order to reflect (i)
the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii)
the
relative fault of the Company (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
18. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware applicable to contracts made and to be performed
in such State without giving effect to its principles of conflicts of laws.
The
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that
any
action or proceeding arising out of or in connection with this Agreement may
be
brought in the Delaware Court of Chancery, (ii) consent to submit to the
jurisdiction of the Delaware Court of Chancery for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive
any
objection to the laying of venue of any such action or proceeding in the
Delaware Court of Chancery, and (iv) waive, and agree not to plead or to make,
any claim that any such action or proceeding brought in the Delaware Court
of
Chancery has been brought in an improper or inconvenient forum.
19. Notices.
All
notices, demands and other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered
by
hand, against receipt or mailed, postage prepaid, certified or registered mail,
return receipt requested and addressed to the Company at:
Wintegra,
Inc.
0000
Xxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Chief Executive Officer
and
to
Indemnitee at
the
address set forth below Indemnitee’s signature hereto. Notice of change of
address shall be effective only when given in accordance with this Section.
All
notices complying with this Section shall be deemed to have been received
on the date of hand delivery or on the third business day after
mailing.
20. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
*
* * *
*
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day specified above.
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WINTEGRA,
INC.
a Delaware corporation
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Print
Name:
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Title:
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INDEMNITEE,
an individual
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Indemnitee
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