WINTEGRA,
INC.
INDEMNIFICATION
AGREEMENT
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:
(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 professio
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