{"id":40826,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-utstarcom-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-utstarcom-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-utstarcom-inc.html","title":{"rendered":"Indemnification Agreement &#8211; UTStarcom Inc."},"content":{"rendered":"<pre>\n                                 UTSTARCOM, INC.\n\n                            INDEMNIFICATION AGREEMENT\n\n         This Indemnification Agreement ('AGREEMENT') is entered into as of the\n_____ day of _____________, 1998 by and between UTStarcom, Inc., a Delaware\ncorporation (the 'COMPANY') and _______________ ('INDEMNITEE').\n\n                                    RECITALS\n\n         A.The Company and Indemnitee recognize the continued difficulty in\nobtaining liability insurance for its directors, officers, employees, agents and\nfiduciaries, the significant increases in the cost of such insurance and the\ngeneral reductions in the coverage of such insurance.\n\n         B.The Company and Indemnitee further recognize the substantial increase\nin corporate litigation in general, subjecting directors, officers, employees,\nagents and fiduciaries to expensive litigation risks at the same time as the\navailability and coverage of liability insurance has been severely limited.\n\n         C.Indemnitee does not regard the current protection available as\nadequate under the present circumstances, and Indemnitee and other directors,\nofficers, employees, agents and fiduciaries of the Company may not be willing to\ncontinue to serve in such capacities without additional protection.\n\n         D.The Company desires to attract and retain the services of highly\nqualified individuals, such as Indemnitee, to serve the Company and, in part, in\norder to induce Indemnitee to continue to provide services to the Company,\nwishes to provide for the indemnification and advancing of expenses to\nIndemnitees to the maximum extent permitted by law.\n\n         E.In view of the considerations set forth above, the Company desires\nthat Indemnitee be indemnified by the Company as set forth herein.\n\n         NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:\n\n         1.    INDEMNIFICATION.\n\n               (a) GENERAL RIGHT TO INDEMNIFICATION. The Company shall indemnify\nto the fullest extent permitted by law if Indemnitee was or is or becomes a\nparty to or witness or other participant in, or are threatened to be made a\nparty to or witness or other participant in, any threatened, pending or\ncompleted action, suit, proceeding or alternative dispute resolution mechanism,\nor any hearing, inquiry or investigation that Indemnitee in good faith believes\nmight lead to the institution of any such action, suit, proceeding or\nalternative dispute resolution mechanism, whether civil, criminal,\nadministrative, investigative or other (hereinafter a 'CLAIM'), by reason of (or\narising in part out of) any event or occurrence related to the fact that\nIndemnitee is or was a director, officer, employee,\n\n\n\n\nagent or fiduciary of the Company, or any subsidiary of the Company, or is or \nwas serving at the request of the Company as a director, officer, employee, \nagent or fiduciary of another corporation, partnership, joint venture, trust \nor other enterprise, or by reason of any action or inaction on the part of \nIndemnitee while serving in such capacity (hereinafter an 'INDEMNIFIABLE \nEVENT'), and the Indemnitee shall be indemnified and held harmless by the \nCompany to the fullest extent permitted by law, against any and all costs, \ncharges, expenses, liabilities, losses, (including attorneys' fees and all \nother costs, expenses and obligations incurred in connection with \ninvestigating, defending, being a witness in or participating in (including \non appeal), or preparing to defend, be a witness in or participate in, any \nsuch action, suit, proceeding, alternative dispute resolution mechanism, \nhearing, inquiry or investigation), judgments, fines, penalties and amounts \npaid in settlement (if such settlement is approved in advance by the Company, \nwhich approval shall not be unreasonably withheld) of such Claim and any \nfederal, state, local or foreign taxes imposed on Indemnitees as a result of \nthe actual or deemed receipt of any payments under this Agreement \n(collectively, hereinafter 'EXPENSES'), including all interest, assessments \nand other charges paid or payable in connection with or in respect of such \nExpenses. Such indemnification shall continue as to the Indemnitee when the \nIndemnitee ceases to be a director, officer, employee, agent or fiduciary of \nthe Company or any subsidiary of the Company (or to serve another entity at \nthe request of the Company) and shall inure to the benefit of the \nIndemnitee's heirs, personal representatives and estate. Such payment of \nExpenses shall be made by the Company as soon as practicable but in any event \nno later than twenty days after written demand by Indemnitees therefor is \npresented to the Company.\n          \n\n               (b) REVIEWING PARTY. Notwithstanding the foregoing, (i) the\nobligations of the Company under Section 1(a) shall be subject to the condition\nthat the Reviewing Party (as described in Section 10(e) hereof) shall not have\ndetermined (in a written opinion, in any case in which the Independent Legal\nCounsel referred to in Section 1(c) hereof is involved) that Indemnitee would\nnot be permitted to be indemnified under applicable law, and (ii) the obligation\nof the Company to make an advance payment of Expenses to Indemnitee pursuant to\nSection 2(a) (an 'EXPENSE ADVANCE') shall be subject to the condition that, if,\nwhen and to the extent that the Reviewing Party determines that Indemnitee would\nnot be permitted to be so indemnified under applicable law, the Company shall be\nentitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the\nCompany) for all such amounts theretofore paid; provided, however, that if\nIndemnitee has commenced or thereafter commences legal proceedings in a court of\ncompetent jurisdiction to secure a determination that Indemnitee should be\nindemnified under applicable law, any determination made by the Reviewing Party\nthat Indemnitee would not be permitted to be indemnified under applicable law\nshall not be binding and Indemnitee shall not be required to reimburse the\nCompany for any Expense Advance until a final judicial determination is made\nwith respect thereto (as to which all rights of appeal therefrom have been\nexhausted or lapsed). The Indemnitee's obligation to reimburse the Company for\nany Expense Advance shall be unsecured and no interest shall be charged thereon.\nIf there has not been a Change in Control (as defined in Section 10(c) hereof),\nthe Reviewing Party shall be selected by the Board of Directors, and if there\nhas been such a Change in Control (other than a Change in Control which has been\napproved by a majority of the persons surviving as members of the Company's\nBoard of Directors who comprised the Company's Board of Directors immediately\nprior to such Change in Control), the Reviewing Party shall be the Independent\nLegal Counsel referred to in Section 1(c) hereof. If there has been no\ndetermination by the Reviewing \n\n                                 -2-\n\n\nParty or if the Reviewing Party determines that Indemnitee substantively \nwould not be permitted to be indemnified in whole or in part under applicable \nlaw, Indemnitee shall have the right to commence litigation seeking an \ninitial determination by the court or challenging any such determination by \nthe Reviewing Party or any aspect thereof, including the legal or factual \nbases therefor, and the Company hereby consents to service of process and to \nappear in any such proceeding. Any determination by the Reviewing Party \notherwise shall be conclusive and binding on the Company and Indemnitee. \n\n               (c) CHANGE IN CONTROL. The Company agrees that if there is a\nChange in Control of the Company (other than a Change in Control which has been\napproved by a majority of the persons surviving as members of the Company's\nBoard of Directors who were directors immediately prior to such Change in\nControl) then, with respect to all matters thereafter arising concerning the\nrights of Indemnitees to payments of Expenses and Expense Advances under this\nAgreement or any other agreement or under the Company's Certificate of\nIncorporation or Bylaws as now or hereafter in effect, Independent Legal Counsel\n(as defined in Section 10(d) hereof) shall be selected by the Indemnitee and\napproved by the Company (which approval shall not be unreasonably withheld).\nSuch counsel, among other things, shall render its written opinion to the\nCompany and Indemnitee as to whether and to what extent Indemnitee would be\npermitted to be indemnified under applicable law, and the Company agrees to\nabide by such opinion. The Company agrees to pay the reasonable fees of the\nIndependent Legal Counsel referred to above and to fully indemnify such counsel\nagainst any and all expenses (including attorneys' fees), claims, liabilities\nand damages arising out of or relating to this Agreement or its engagement\npursuant hereto. \n\n               (d) MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other\nprovision of this Agreement other than Section 9 hereof, to the extent that\nIndemnitee has been successful on the merits or otherwise, including, without\nlimitation, the dismissal of an action without prejudice, in defense of any\naction, suit, proceeding, inquiry or investigation referred to in Section (1)(a)\nhereof or in the defense of any Claim, issue or matter covered by the Agreement,\nor in defense of any Claim, issue or matter therein, Indemnitee shall be\nindemnified against all Expenses incurred by Indemnitee or on Indemnitee's\nbehalf in connection therewith. \n\n     2. EXPENSES; INDEMNIFICATION PROCEDURE. \n\n               (a) ADVANCEMENT OF EXPENSES. The Company shall advance all\nExpenses incurred by Indemnitee. The advances to be made hereunder shall be paid\nby the Company to Indemnitee as soon as practicable but in any event no later\nthan twenty days after written demand by Indemnitee therefor to the Company.\n\n               (b) NOTICE\/COOPERATION BY INDEMNITEE. Indemnitee shall, as a\ncondition precedent to Indemnitee's right to be indemnified under this\nAgreement, give the Company notice in writing as soon as practicable of any\nClaim made against Indemnitee for which indemnification will or could be sought\nunder this Agreement. Notice to the Company shall be directed to the Chief\nExecutive Officer of the Company at the address shown on the signature page of\nthis Agreement (or such other address as the Company shall designate in writing\nto Indemnitee). In addition, Indemnitee shall give \n\n                                     -3-\n\n\n\nthe Company such information and cooperation as it may reasonably require and \nas shall be within Indemnitee's power. \n\n               (c) NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this\nAgreement, the termination of any Claim by judgment, order, settlement (whether\nwith or without court approval) or conviction, or upon a plea of NOLO\nCONTENDERE, or its equivalent, shall not create a presumption that Indemnitee\ndid not meet any particular standard of conduct or have any particular belief or\nthat a court has determined that indemnification is not permitted by applicable\nlaw. In addition, neither the failure of the Reviewing Party to have made a\ndetermination as to whether Indemnitee has met any particular standard of\nconduct or had any particular belief, nor an actual determination by the\nReviewing Party that Indemnitee has not met such standard of conduct or did not\nhave such belief, prior to the commencement of legal proceedings by Indemnitee\nto secure a judicial determination that Indemnitee should be indemnified under\napplicable law, shall be a defense to Indemnitee's claim or create a presumption\nthat Indemnitee has not met any particular standard of conduct or did not have\nany particular belief. In connection with any determination by the Reviewing\nParty or otherwise as to whether Indemnitee is entitled to be indemnified\nhereunder, the burden of proof shall be on the Company to establish that\nIndemnitee is not so entitled. \n\n               (d) NOTICE TO INSURERS. If, at the time of the receipt by the\nCompany of a notice of a Claim pursuant to Section 2(b) hereof, the Company has\nliability insurance in effect which may cover such Claim, the Company shall give\nprompt notice of the commencement of such Claim to the insurers in accordance\nwith the procedures set forth in the respective policies. The Company shall\nthereafter take all necessary or desirable action to cause such insurers to pay,\non behalf of Indemnitee, all amounts payable as a result of such action, suit,\nproceeding, inquiry or investigation in accordance with the terms of such\npolicies. \n\n               (e) SELECTION OF COUNSEL. In the event the Company shall be\nobligated hereunder to pay the Expenses of any Claim, the Company shall be\nentitled to assume the defense of such Claim with counsel approved by\nIndemnitee, which approval shall not be unreasonably withheld, upon the delivery\nto Indemnitee of written notice of its election so to do. After delivery of such\nnotice, approval of such counsel by Indemnitee and the retention of such counsel\nby the Company, the Company will not be liable to Indemnitee under this\nAgreement for any fees of counsel subsequently incurred by Indemnitee with\nrespect to the same Claim; provided that, (i) Indemnitee shall have the right to\nemploy Indemnitee's counsel in any such Claim at Indemnitee's expense and (ii)\nif (A) the employment of counsel by Indemnitee has been previously authorized by\nthe Company, (B) Indemnitee shall have reasonably concluded that there is a\nconflict of interest between the Company and Indemnitee in the conduct of any\nsuch defense, or (C) the Company shall not continue to retain such counsel to\ndefend such Claim, then the fees and expenses of Indemnitee's counsel shall be\nat the expense of the Company. The Company shall have the right to conduct such\ndefense as it sees fit in its sole discretion, including the right to settle any\nclaim against Indemnitee without the consent of the Indemnitee. \n\n     3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY. \n\n\n                               -4-\n\n               (a) SCOPE. The Company hereby agrees to indemnify Indemnitee to\nthe fullest extent permitted by law, notwithstanding that such indemnification\nis not specifically authorized by the other provisions of this Agreement, the\nCompany's Certificate of Incorporation, the Company's Bylaws or by statute. In\nthe event of any change after the date of this Agreement in any applicable law,\nstatute or rule which expands the right of a Delaware corporation to indemnify a\nmember of its Board of Directors or an officer, employee, agent or fiduciary, it\nis the intent of the parties hereto that Indemnitee shall enjoy by this\nAgreement the greater benefits afforded by such change. In the event of any\nchange in any applicable law, statute or rule which narrows the right of a\nDelaware corporation to indemnify a member of its Board of Directors or an\nofficer, employee, agent or fiduciary, such change, to the extent not otherwise\nrequired by such law, statute or rule to be applied to this Agreement, shall\nhave no effect on this Agreement or the parties' rights and obligations\nhereunder except as set forth in Section 8(a) hereof. \n\n               (b) NONEXCLUSIVITY. The indemnification and advances provided by\nthis Agreement shall be in addition to any rights to which Indemnitee may be\nentitled under the Company's Certificate of Incorporation, its Bylaws, any\nagreement, any vote of stockholders or disinterested directors, the General\nCorporation Law of the State of Delaware, or otherwise. The indemnification\nprovided under this Agreement shall continue as to Indemnitee for any action\nIndemnitee took or did not take while serving in an indemnified capacity even\nthough Indemnitee may have ceased to serve in such capacity. \n\n     4. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this\nAgreement to make any payment in connection with any Claim made against\nIndemnitee to the extent Indemnitee has otherwise actually received payment\n(under any insurance policy, Certificate of Incorporation, Bylaw or otherwise)\nof the amounts otherwise indemnifiable hereunder. \n\n     5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision\nof this Agreement to indemnification by the Company for some or a portion of\nExpenses incurred in connection with any Claim, but not, however, for all of the\ntotal amount thereof, the Company shall nevertheless indemnify Indemnitee for\nthe portion of such Expenses to which Indemnitee is entitled. \n\n     6. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that\nin certain instances, Federal law or applicable public policy may prohibit the\nCompany from indemnifying its directors, officers, employees, agents or\nfiduciaries under this Agreement or otherwise. Indemnitee understands and\nacknowledges that if the Company is subject to the informational requirements of\nthe Securities Exchange Act of 1934, as amended (the 'Exchange Act'), the\nCompany may be required to undertake with the Securities and Exchange Commission\nto submit the question of indemnification to a court in certain circumstances\nfor a determination of the Company's right under public policy to indemnify\nIndemnitee. \n\n     7. LIABILITY INSURANCE. The Company shall, from time to time, make the good\nfaith determination whether or not it is practicable for the Company to obtain\nand maintain a policy or policies of insurance with reputable insurance\ncompanies providing the officers and directors of the Company with coverage for\nlosses from wrongful acts, or to ensure the Company's performance of\n\n                                      -5-\n\n\n\n\nits indemnification obligations under this Agreement. Among other \nconsiderations, the Company will weigh the costs of obtaining such insurance \ncoverage against the protection afforded by such coverage. In all policies of \ndirectors' and officers' liability insurance, Indemnitee shall be named as an \ninsured in such a manner as to provide Indemnitee the same rights and \nbenefits as are accorded to the most favorably insured of the Company's \ndirectors, if Indemnitee is a director; or of the Company's officers, if \nIndemnitee is not a director of the Company but is an officer; or of the \nCompany's key employees, if Indemnitee is not an officer or director but is a \nkey employee. Notwithstanding the foregoing, the Company shall have no \nobligation to obtain or maintain such insurance if the Company determines in \ngood faith that such insurance is not reasonably available, if the premium \ncosts for such insurance are disproportionate to the amount of coverage \nprovided, if the coverage provided by such insurance is limited by exclusions \nso as to provide an insufficient benefit, or if Indemnitee is covered by \nsimilar insurance maintained by a subsidiary or parent of the Company. \n\n     8. EXCEPTIONS. Any other provision herein to the contrary notwithstanding,\nthe Company shall not be obligated pursuant to the terms of this Agreement: \n\n               (a) EXCLUDED ACTION OR OMISSIONS. To indemnify Indemnitee for\nExpenses resulting from acts, omissions or transactions for which Indemnitee is\nprohibited from receiving indemnification under this Agreement or applicable\nlaw;\n\n               (b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance\nexpenses to Indemnitee with respect to Claims initiated or brought voluntarily\nby Indemnitee and not by way of defense, except (i) with respect to actions or\nproceedings brought to establish or enforce a right to indemnification under\nthis Agreement or any other agreement or insurance policy or under the Company's\nCertificate of Incorporation or Bylaws now or hereafter in effect relating to\nClaims for Indemnifiable Events, (ii) in specific cases if the Board of\nDirectors has approved the initiation or bringing of such Claim, or (iii) as\notherwise required under Section 145 of the Delaware General Corporation Law,\nregardless of whether Indemnitee ultimately is determined to be entitled to such\nindemnification, advance expense payment or insurance recovery, as the case may\nbe;\n\n               (c) LACK OF GOOD FAITH. To indemnify Indemnitee for any expenses\nincurred by Indemnitee with respect to any proceeding instituted by Indemnitee\nto enforce or interpret this Agreement, if a court of competent jurisdiction\ndetermines that each of the material assertions made by Indemnitee in such\nproceeding was not made in good faith or was frivolous; or\n\n               (d) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for\nexpenses and the payment of profits arising from the purchase and sale by\nIndemnitee of securities in violation of Section 16(b) of the Exchange Act, or\nany similar successor statute if the Company is subject to the informational\nrequirements of the Exchange Act.\n\n     9. CONSTRUCTION OF CERTAIN PHRASES.\n\n               (a) For purposes of this Agreement, references to the 'Company'\nshall include, in addition to the resulting corporation, any constituent\ncorporation (including any constituent of a con-\n\n                                -6-\n\n\n\nstituent) absorbed in a consolidation or merger which, if its separate \nexistence had continued, would have had power and authority to indemnify its \ndirectors, officers, employees, agents or fiduciaries, so that if Indemnitee \nis or was a director, officer, employee, agent or fiduciary of such \nconstituent corporation, or is or was serving at the request of such \nconstituent corporation as a director, officer, employee, agent or fiduciary \nof another corporation, partnership, joint venture, employee benefit plan, \ntrust or other enterprise, Indemnitee shall stand in the same position under \nthe provisions of this Agreement with respect to the resulting or surviving \ncorporation as Indemnitee would have with respect to such constituent \ncorporation if its separate existence had continued.\n\n               (b) For purposes of this Agreement, references to 'other\nenterprises' shall include employee benefit plans; references to 'fines' shall\ninclude any excise taxes assessed on Indemnitee with respect to an employee\nbenefit plan; and references to 'serving at the request of the Company' shall\ninclude any service as a director, officer, employee, agent or fiduciary of the\nCompany which imposes duties on, or involves services by, such director,\nofficer, employee, agent or fiduciary with respect to an employee benefit plan,\nits participants or its beneficiaries; and if Indemnitee acted in good faith and\nin a manner Indemnitee reasonably believed to be in the interest of the\nparticipants and beneficiaries of an employee benefit plan, Indemnitee shall be\ndeemed to have acted in a manner 'not opposed to the best interests of the\nCompany' as referred to in this Agreement.\n\n               (c) For purposes of this Agreement a 'Change in Control' shall be\ndeemed to have occurred IF, ON OR AFTER THE DATE OF THIS AGREEMENT, (i) any\n'person' (as such term is used in Sections 13(d) and 14(d) of the Exchange Act),\nother than a trustee or other fiduciary holding securities under an employee\nbenefit plan of the Company acting in such capacity or a corporation owned\ndirectly or indirectly by the stockholders of the Company in substantially the\nsame proportions as their ownership of stock of the Company, becomes the\n'beneficial owner' (as defined in Rule 13d-3 under the Exchange Act), directly\nor indirectly, of securities of the Company representing more than 50% of the\ntotal voting power represented by the Company's then outstanding Voting\nSecurities, (ii) during any period of two consecutive years, individuals who at\nthe beginning of such period constitute the Board of Directors of the Company\nand any new director whose election by the Board of Directors or nomination for\nelection by the Company's stockholders was approved by a vote of at least two\nthirds (2\/3) of the directors then still in office who either were directors at\nthe beginning of the period or whose election or nomination for election was\npreviously so approved, cease for any reason to constitute a majority thereof,\nor (iii) the stockholders of the Company approve a merger or consolidation of\nthe Company with any other corporation other than a merger or consolidation\nwhich would result in the Voting Securities of the Company outstanding\nimmediately prior thereto continuing to represent (either by remaining\noutstanding or by being converted into Voting Securities of the surviving\nentity) at least 80% of the total voting power represented by the Voting\nSecurities of the Company or such surviving entity outstanding immediately after\nsuch merger or consolidation, or the stockholders of the Company approve a plan\nof complete liquidation of the Company or an agreement for the sale or\ndisposition by the Company of (in one transaction or a series of related\ntransactions) all or substantially all of the Company's assets.\n\n               (d) For purposes of this Agreement, 'Independent Legal Counsel'\nshall mean an attorney or firm of attorneys, selected in accordance with the\nprovisions of Section 1(c) hereof, who \n\n                                   -7-\n\n\n\nshall not have otherwise performed services for the Company or Indemnitees \nwithin the last three years (other than with respect to matters concerning \nthe rights of Indemnitees under this Agreement, or of other indemnitees under \nsimilar indemnity agreements).\n\n               (e) For purposes of this Agreement, a 'Reviewing Party' shall\nmean any appropriate person or body consisting of a member or members of the\nCompany's Board of Directors or any other person or body appointed by the Board\nof Directors who is not a party to the particular Claim for which Indemnitee are\nseeking indemnification, or Independent Legal Counsel. \n\n               (f) For purposes of this Agreement, 'Voting Securities' shall\nmean any securities of the Company that vote generally in the election of\ndirectors. \n\n     10. COUNTERPARTS. This Agreement may be executed in one or more\ncounterparts, each of which shall constitute an original. \n\n     11. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding\nupon and inure to the benefit of and be enforceable by the parties hereto and\ntheir respective successors, assigns, including any direct or indirect successor\nby purchase, merger, consolidation or otherwise to all or substantially all of\nthe business and\/or assets of the Company, spouses, heirs, and personal and\nlegal representatives. The Company shall require and cause any successor\n(whether direct or indirect by purchase, merger, consolidation or otherwise) to\nall, substantially all, or a substantial part, of the business and\/or assets of\nthe Company, by written agreement in form and substance satisfactory to\nIndemnitee, expressly to assume and agree to perform this Agreement in the same\nmanner and to the same extent that the Company would be required to perform if\nno such succession had taken place. This Agreement shall continue in effect with\nrespect to Claims relating to Indemnifiable Events regardless of whether\nIndemnitee continues to serve as a director, officer, employee, agent or\nfiduciary of the Company or of any other enterprise at the Company's request.\n\n     12. ATTORNEYS' FEES. In the event that any action is instituted by\nIndemnitee under this Agreement or under any liability insurance policies\nmaintained by the Company to enforce or interpret any of the terms hereof or\nthereof, Indemnitee shall be entitled to be paid all Expenses incurred by\nIndemnitee with respect to such action, regardless of whether Indemnitee is\nultimately successful in such action, and shall be entitled to the advancement\nof Expenses with respect to such action, unless, as a part of such action, a\ncourt of competent jurisdiction over such action determines that each of the\nmaterial assertions made by Indemnitee as a basis for such action was not made\nin good faith or was frivolous. In the event of an action instituted by or in\nthe name of the Company under this Agreement to enforce or interpret any of the\nterms of this Agreement, Indemnitee shall be entitled to be paid all Expenses\nincurred by Indemnitee in defense of such action (including costs and expenses\nincurred with respect to Indemnitee's counterclaims and cross-claims made in\nsuch action), and shall be entitled to the advancement of Expenses with respect\nto such action, unless, as a part of such action, a court having jurisdiction\nover such action determines that each of Indemnitee's material defenses to such\naction was made in bad faith or was frivolous. \n\n     13. NOTICE. All notices and other communications required or permitted\nhereunder shall be in writing, shall be effective when given, and shall in any\nevent be deemed to be given (a) five (5) \n\n                                  -8-\n\n\n\ndays after deposit with the U.S. Postal Service or other applicable postal \nservice, if delivered by first class mail, postage prepaid, (b) upon \ndelivery, if delivered by hand, (c) one business day after the business day \nof deposit with Federal Express or similar overnight courier, freight \nprepaid, or (d) one day after the business day of delivery by facsimile \ntransmission, if delivered by facsimile transmission, with copy by first \nclass mail, postage prepaid, and shall be addressed if to Indemnitee, at the \nIndemnitee's address as set forth beneath Indemnitee's signature to this \nAgreement and if to the Company at the address of its principal corporate \noffices (attention: Secretary) or at such other address as such party may \ndesignate by ten days' advance written notice to the other party hereto. \n\n     14. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby\nirrevocably consent to the jurisdiction of the courts of the State of Delaware\nfor all purposes in connection with any action or proceeding which arises out of\nor relates to this Agreement and agree that any action instituted under this\nAgreement shall be commenced, prosecuted and continued only in the Court of\nChancery of the State of Delaware in and for New Castle County, which shall be\nthe exclusive and only proper forum for adjudicating such a claim. \n\n     15. SEVERABILITY. The provisions of this Agreement shall be severable in\nthe event that any of the provisions hereof (including any provision within a\nsingle section, paragraph or sentence) are held by a court of competent\njurisdiction to be invalid, void or otherwise unenforceable, and the remaining\nprovisions shall remain enforceable to the fullest extent permitted by law.\nFurthermore, to the fullest extent possible, the provisions of this Agreement\n(including, without limitations, each portion of this Agreement containing any\nprovision held to be invalid, void or otherwise unenforceable, that is not\nitself invalid, void or unenforceable) shall be construed so as to give effect\nto the intent manifested by the provision held invalid, illegal or\nunenforceable. \n\n     16. CHOICE OF LAW. This Agreement shall be governed by and its provisions\nconstrued and enforced in accordance with the laws of the State of Delaware, as\napplied to contracts between Delaware residents, entered into and to be\nperformed entirely within the State of Delaware, without regard to the conflict\nof laws principles thereof. \n\n     17. SUBROGATION. In the event of payment under this Agreement, the Company\nshall be subrogated to the extent of such payment to all of the rights of\nrecovery of Indemnitee who shall execute all documents required and shall do all\nacts that may be necessary to secure such rights and to enable the Company\neffectively to bring suit to enforce such rights. \n\n     18. AMENDMENT AND TERMINATION. No amendment, modification, termination or\ncancellation of this Agreement shall be effective unless it is in writing signed\nby both the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions hereof\n(whether or not similar) nor shall such waiver constitute a continuing waiver.\n\n     19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire\nunderstanding between the parties hereto and supersedes and merges all previous\nwritten and oral negotiations, commitments, understandings and agreements\nrelating to the subject matter hereof between the parties hereto. \n\n                                   -9-\n\n\n\n     20. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this\nAgreement shall be construed as giving Indemnitee any right to be retained in\nthe employ of the Company or any of its subsidiaries.\n\n\n\n\n                                   -10-\n\n\n\n\n\n         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date first above written.\n\n         UTSTARCOM, INC.,\n\n         a Delaware corporation\n\n         By:      \n            -------------\n\n            Hong Lu\n\n            President and Chief Executive Officer\n\n         AGREED TO AND ACCEPTED BY:\n\n                                   --------------\n\n         (Signature of Indemnitee)\n\n                                   --------------\n\n         (Type Name)\n\n         Address:\n                 -------------\n                                   --------------\n\n                                   --------------\n\n\n\n\n\n\n\n                               -11-\n\n\n\n\n\n\n\n\n\n\n\n\n                               -12-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9205],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9553,9557],"class_list":["post-40826","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40826","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40826"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40826"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40826"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40826"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}