Exhibit 10.33
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement"), is entered into as of
_______________, 2000, by and among Vyyo Inc. (the "Company"), Xxxxx Xxxxxx,
Xxxxxxx Xxxxxx and Xxxx Xxxxxxxx (collectively, referred to herein as the
"Company Selling Stockholders"). Capitalized terms used herein but not otherwise
defined shall have the meaning set forth in the Underwriting Agreement (as
defined below).
In consideration of the mutual promises, representations, warranties and
conditions set forth in this Agreement and as contemplated to be set forth in
that certain Underwriting Agreement (the "Underwriting Agreement"), to be
entered into by and among the Company, the Company Selling Stockholders and
certain other stockholders of the Company and certain underwriters for the
Company, on such date as the Company's Registration Statement on Form S-1 (No.
333-45132) (the "Registration Statement") has been declared effective by the
Securities and Exchange Commission, the parties hereto agree as follows:
1. To the extent permitted by law, the Company will indemnify and hold
harmless each of the Company Selling Stockholders against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based on any inaccuracy in the representations and
warranties made on the part of the Company and each Company Selling Stockholder
pursuant to Section 1(A) of the Underwriting Agreement; and the Company will
reimburse each such person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided however, that the indemnity agreement
contained in this Section 1 shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company, which consent shall not be unreasonably
withheld; provided further, that the Company Selling Stockholder had no actual
knowledge of the inaccuracy in the representations or warranties when made by
the Company or the Company Selling Stockholder.
2. To the extent permitted by law, the Company will indemnify and hold
harmless each of the Company Selling Stockholders against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law, or
pursuant to the terms of the Underwriting Agreement, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof), including a
request for indemnification by an underwriter, arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company or the Registration Statement or any preliminary prospectus of the
Securities Act, the Exchange Act, any state securities law, or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the public offering to be conducted pursuant
to the the Registration Statement; and the Company will reimburse each such
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided however, that the indemnity agreement contained in this Section
2 shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with the Registration by such person, or
partner, officer, director, or controlling person of such person; and provided
further, that the Company Selling Stockholder had no actual knowledge of the (i)
untrue statement, (ii) omission, or (iii) violation.
3. Promptly after receipt by an indemnified party under Sections 1 or 2
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under Sections 1 or 2, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the
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counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under Section 1 or 2, as applicable, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under
Sections 1 or 2.
4. If the indemnification provided for in either Sections 1 or 2 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the violation that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, with respect to Violations under Section 2 whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that in no event shall any contribution by each of the Company Selling
Stockholders hereunder exceed the net proceeds from the offering received by
such person.
5. The obligations of the parties to this Agreement shall survive
completion of any offering of securities pursuant to the Registration Statement.
No indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnifying party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
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This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
In witness whereof, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof:
By:_______________________
Xxxxx Xxxxxx
By:_______________________
Xxxxxxx Xxxxxx
By:_______________________
Xxxx Xxxxxxxx
Vyyo Inc.
By:_______________________
Title:________________________________________
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