{"id":40790,"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-accrue-software-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-accrue-software-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-accrue-software-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Accrue Software Inc."},"content":{"rendered":"<pre>                            INDEMNIFICATION AGREEMENT\n\n\n        This Indemnification Agreement (the 'Agreement') is made as of [Date] by\nand between Accrue Software, Inc., a Delaware corporation (the 'Company'), and\n[Indemnitee Name] (the 'Indemnitee').\n\n                                    RECITALS\n\n        The Company and Indemnitee recognize the increasing difficulty in\nobtaining liability insurance for directors, officers and key employees, the\nsignificant increases in the cost of such insurance and the general reductions\nin the coverage of such insurance. The Company and Indemnitee further recognize\nthe substantial increase in corporate litigation in general, subjecting\ndirectors, officers and key employees to expensive litigation risks at the same\ntime as the availability and coverage of liability insurance has been severely\nlimited. Indemnitee does not regard the current protection available as adequate\nunder the present circumstances, and Indemnitee and agents of the Company may\nnot be willing to continue to serve as agents of the Company without additional\nprotection. The Company desires to attract and retain the services of highly\nqualified individuals, such as Indemnitee, and to indemnify its directors,\nofficers and key employees so as to provide them with the maximum protection\npermitted by law.\n\n                                    AGREEMENT\n\n        In consideration of the mutual promises made in this Agreement, and for\nother good and valuable consideration, receipt of which is hereby acknowledged,\nthe Company and Indemnitee hereby agree as follows:\n\n        1.      INDEMNIFICATION.\n\n                (a)     THIRD PARTY PROCEEDINGS. The Company shall indemnify\nIndemnitee if Indemnitee is or was a party or is threatened to be made a party\nto any threatened, pending or completed action, suit or proceeding, whether\ncivil, criminal, administrative or investigative (other than an action by or in\nthe right of the Company) by reason of the fact that Indemnitee is or was a\ndirector, officer, employee or agent of the Company, or any subsidiary of the\nCompany, by reason of any action or inaction on the part of Indemnitee while an\nofficer or director or by reason of the fact that Indemnitee is or was serving\nat the request of the Company as a director, officer, employee or agent of\nanother corporation, partnership, joint venture, trust or other enterprise,\nagainst expenses (including attorneys' fees), judgments, fines and amounts paid\nin settlement (if such settlement is approved in advance by the Company, which\napproval shall not be unreasonably withheld) actually and reasonably incurred by\nIndemnitee in connection with such action, suit or proceeding if Indemnitee\nacted in good faith and in a manner Indemnitee reasonably believed to be in or\nnot opposed to the best interests of the Company, and, with respect to any\ncriminal action or proceeding, had no reasonable cause to believe Indemnitee's\nconduct was unlawful. The termination of any action, suit or proceeding by\njudgment, order, settlement, conviction, or upon a plea of nolo contendere or\nits equivalent, shall not, of itself, create a presumption that Indemnitee did\nnot act in good faith and in a manner which Indemnitee \n\n\n\n\n                                       -1-\n\n\nreasonably believed to be in or not opposed to the best interests of the\nCompany, or, with respect to any criminal action or proceeding, that Indemnitee\nhad reasonable cause to believe that Indemnitee's conduct was unlawful.\n\n                (b)     PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The\nCompany shall indemnify Indemnitee if Indemnitee was or is a party or is\nthreatened to be made a party to any threatened, pending or completed action or\nproceeding by or in the right of the Company or any subsidiary of the Company to\nprocure a judgment in its favor by reason of the fact that Indemnitee is or was\na director, officer, employee or agent of the Company, or any subsidiary of the\nCompany, by reason of any action or inaction on the part of Indemnitee while an\nofficer or director or by reason of the fact that Indemnitee is or was serving\nat the request of the Company as a director, officer, employee or agent of\nanother corporation, partnership, joint venture, trust or other enterprise,\nagainst expenses (including attorneys' fees) and, to the fullest extent\npermitted by law, amounts paid in settlement (if such settlement is approved in\nadvance by the Company, which approval shall not be unreasonably withheld), in\neach case to the extent actually and reasonably incurred by Indemnitee in\nconnection with the defense or settlement of such action or suit if Indemnitee\nacted in good faith and in a manner Indemnitee reasonably believed to be in or\nnot opposed to the best interests of the Company and its stockholders, except\nthat no indemnification shall be made in respect of any claim, issue or matter\nas to which Indemnitee shall have been finally adjudicated by court order or\njudgment to be liable to the Company in the performance of Indemnitee's duty to\nthe Company and its stockholders unless and only to the extent that the court in\nwhich such action or proceeding is or was pending shall determine upon\napplication that, in view of all the circumstances of the case, Indemnitee is\nfairly and reasonably entitled to indemnity for such expenses which such court\nshall deem proper.\n\n                (c)     MANDATORY PAYMENT OF EXPENSES. To the extent that\nIndemnitee has been successful on the merits or otherwise in defense of any\naction, suit or proceeding referred to in Section 1(a) or Section 1(b) or the\ndefense of any claim, issue or matter therein, Indemnitee shall be indemnified\nagainst expenses (including attorneys' fees) actually and reasonably incurred by\nIndemnitee in connection therewith.\n\n        2.      NO EMPLOYMENT RIGHTS. Nothing contained in this Agreement is\nintended to create in Indemnitee any right to continued employment.\n\n        3.      EXPENSES; INDEMNIFICATION PROCEDURE.\n\n                (a)     ADVANCEMENT OF EXPENSES. The Company shall advance all\nexpenses incurred by Indemnitee in connection with the investigation, defense,\nsettlement or appeal of any civil or criminal action, suit or proceeding\nreferred to in Section l(a) or Section 1(b) hereof (including amounts actually\npaid in settlement of any such action, suit or proceeding). Indemnitee hereby\nundertakes to repay such amounts advanced only if, and to the extent that, it\nshall ultimately be determined that Indemnitee is not entitled to be indemnified\nby the Company as authorized hereby. Any advances to be made under this\nAgreement shall be paid by the Company to Indemnitee within twenty (20) days\nfollowing delivery of a written request therefor by Indemnitee to the Company.\n\n\n\n\n                                      -2-\n\n\n                (b)     NOTICE\/COOPERATION BY INDEMNITEE. Indemnitee shall, as a\ncondition precedent to his or her right to be indemnified under this Agreement,\ngive the Company notice in writing as soon as practicable of any claim made\nagainst Indemnitee for which indemnification will or could be sought under this\nAgreement. Notice to the Company shall be directed to the Chief Executive\nOfficer of the Company and shall be given in accordance with the provisions of\nSection 12(d) below. In addition, Indemnitee shall give the Company such\ninformation and cooperation as it may reasonably require and as shall be within\nIndemnitee's power.\n\n                (c)     PROCEDURE. Any indemnification and advances provided for\nin Section 1 and this Section 3 shall be made no later than twenty (20) days\nafter receipt of the written request of Indemnitee. If a claim under this\nAgreement, under any statute, or under any provision of the Company's\nCertificate of Incorporation or Bylaws providing for indemnification, is not\npaid in full by the Company within twenty (20) days after a written request for\npayment thereof has first been received by the Company, Indemnitee may, but need\nnot, at any time thereafter bring an action against the Company to recover the\nunpaid amount of the claim and, subject to Section 11 of this Agreement,\nIndemnitee shall also be entitled to be paid for the expenses (including\nattorneys' fees) of bringing such action. It shall be a defense to any such\naction (other than an action brought to enforce a claim for expenses incurred in\nconnection with any action, suit or proceeding in advance of its final\ndisposition) that Indemnitee has not met the standards of conduct which make it\npermissible under applicable law for the Company to indemnify Indemnitee for the\namount claimed, but the burden of proving such defense shall be on the Company\nand Indemnitee shall be entitled to receive interim payments of expenses\npursuant to Section 3(a) unless and until such defense may be finally\nadjudicated by court order or judgment from which no further right of appeal\nexists. It is the parties' intention that if the Company contests Indemnitee's\nright to indemnification, the question of Indemnitee's right to indemnification\nshall be for the court to decide, and neither the failure of the Company\n(including its Board of Directors, any committee or subgroup of the Board of\nDirectors, independent legal counsel, or its stockholders) to have made a\ndetermination that indemnification of Indemnitee is proper in the circumstances\nbecause Indemnitee has met the applicable standard of conduct required by\napplicable law, nor an actual determination by the Company (including its Board\nof Directors, any committee or subgroup of the Board of Directors, independent\nlegal counsel, or its stockholders) that Indemnitee has not met such applicable\nstandard of conduct, shall create a presumption that Indemnitee has or has not\nmet the applicable standard of conduct.\n\n                (d)     NOTICE TO INSURERS. If, at the time of the receipt of a\nnotice of a claim pursuant to Section 3(b) hereof, the Company has director and\nofficer liability insurance in effect, the Company shall give prompt notice of\nthe commencement of such proceeding to the insurers in accordance with the\nprocedures set forth in the respective policies. The Company shall thereafter\ntake all necessary or desirable action to cause such insurers to pay, on behalf\nof the Indemnitee, all amounts payable as a result of such proceeding in\naccordance with the terms of such policies.\n\n                (e)     SELECTION OF COUNSEL. In the event the Company shall be\nobligated under Section 3(a) hereof to pay the expenses of any proceeding\nagainst Indemnitee, the Company, if appropriate, shall be entitled to assume the\ndefense of such proceeding, with counsel approved by \n\n\n\n\n                                      -3-\n\n\nIndemnitee, upon the delivery to Indemnitee of written notice of its election so\nto do. After delivery of such notice, approval of such counsel by Indemnitee and\nthe retention of such counsel by the Company, the Company will not be liable to\nIndemnitee under this Agreement for any fees of counsel subsequently incurred by\nIndemnitee with respect to the same proceeding, provided that (i) Indemnitee\nshall have the right to employ counsel in any such proceeding at Indemnitee's\nexpense; and (ii) if (A) the employment of counsel by Indemnitee has been\npreviously authorized by the Company, (B) Indemnitee shall have reasonably\nconcluded that there may be a conflict of interest between the Company and\nIndemnitee in the conduct of any such defense or (C) the Company shall not, in\nfact, have employed counsel to assume the defense of such proceeding, then the\nfees and expenses of Indemnitee's counsel shall be at the expense of the\nCompany.\n\n        4.      ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.\n\n                (a)     SCOPE. Notwithstanding any other provision of this\nAgreement, the Company hereby agrees to indemnify the Indemnitee to the fullest\nextent permitted by law, notwithstanding that such indemnification is not\nspecifically authorized by the other provisions of this Agreement, the Company's\nCertificate of Incorporation, the Company's Bylaws or by statute. In the event\nof any change, after the date of this Agreement, in any applicable law, statute,\nor rule which expands the right of a Delaware corporation to indemnify a member\nof its board of directors or an officer, such changes shall be deemed to be\nwithin the purview of Indemnitee's rights and the Company's obligations under\nthis Agreement. In the event of any change in any applicable law, statute or\nrule which narrows the right of a Delaware corporation to indemnify a member of\nits board of directors or an officer, such changes, to the extent not otherwise\nrequired by such law, statute or rule to be applied to this Agreement shall have\nno effect on this Agreement or the parties' rights and obligations hereunder.\n\n                (b)     NONEXCLUSIVITY. The indemnification provided by this\nAgreement shall not be deemed exclusive of 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 members of the Company's\nBoard of Directors, the General Corporation Law of the State of Delaware, or\notherwise, both as to action in Indemnitee's official capacity and as to action\nin another capacity while holding such office. The indemnification provided\nunder this Agreement shall continue as to Indemnitee for any action taken or not\ntaken while serving in an indemnified capacity even though he or she may have\nceased to serve in any such capacity at the time of any action, suit or other\ncovered proceeding.\n\n        5.      PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any\nprovision of this Agreement to indemnification by the Company for some or a\nportion of the expenses, judgments, fines or penalties actually or reasonably\nincurred in the investigation, defense, appeal or settlement of any civil or\ncriminal action, suit or proceeding, but not, however, for the total amount\nthereof, the Company shall nevertheless indemnify Indemnitee for the portion of\nsuch expenses, judgments, fines or penalties to which Indemnitee is entitled.\n\n\n\n\n                                      -4-\n\n\n        6.      MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee\nacknowledge that in certain instances, Federal law or public policy may override\napplicable state law and prohibit the Company from indemnifying its directors\nand officers under this Agreement or otherwise. For example, the Company and\nIndemnitee acknowledge that the Securities and Exchange Commission (the 'SEC')\nhas taken the position that indemnification is not permissible for liabilities\narising under certain federal securities laws, and federal legislation prohibits\nindemnification for certain ERISA violations. Indemnitee understands and\nacknowledges that the Company has undertaken or may be required in the future to\nundertake with the SEC to submit the question of indemnification to a court in\ncertain circumstances for a determination of the Company's right under public\npolicy to indemnify Indemnitee.\n\n        7.      OFFICER AND DIRECTOR LIABILITY INSURANCE. The Company shall,\nfrom time to time, make the good faith determination whether or not it is\npracticable for the Company to obtain and maintain a policy or policies of\ninsurance with reputable insurance companies providing the officers and\ndirectors of the Company with coverage for losses from wrongful acts, or to\nensure the Company's performance of its indemnification obligations under this\nAgreement. Among other considerations, the Company will weigh the costs of\nobtaining such insurance coverage against the protection afforded by such\ncoverage. In all policies of director and officer liability insurance,\nIndemnitee shall be named as an insured in such a manner as to provide\nIndemnitee the same rights and benefits as are accorded to the most favorably\ninsured of the Company's directors, if Indemnitee is a director; or of the\nCompany's officers, if Indemnitee is not a director of the Company but is an\nofficer; or of the Company's key employees, if Indemnitee is not an officer or\ndirector but is a key employee. Notwithstanding the foregoing, the Company shall\nhave no obligation to obtain or maintain such insurance if the Company\ndetermines in good faith that such insurance is not reasonably available, if the\npremium costs for such insurance are disproportionate to the amount of coverage\nprovided, if the coverage provided by such insurance is limited by exclusions so\nas to provide an insufficient benefit, or if Indemnitee is covered by similar\ninsurance maintained by a parent or subsidiary of the Company.\n\n        8.      SEVERABILITY. Nothing in this Agreement is intended to require\nor shall be construed as requiring the Company to do or fail to do any act in\nviolation of applicable law. The Company's inability, pursuant to court order,\nto perform its obligations under this Agreement shall not constitute a breach of\nthis Agreement. The provisions of this Agreement shall be severable as provided\nin this Section 8. If this Agreement or any portion hereof shall be invalidated\non any ground by any court of competent jurisdiction, then the Company shall\nnevertheless indemnify Indemnitee to the full extent permitted by any applicable\nportion of this Agreement that shall not have been invalidated, and the balance\nof this Agreement not so invalidated shall be enforceable in accordance with its\nterms.\n\n        9.      EXCEPTIONS. Any other provision herein to the contrary\nnotwithstanding, the Company shall not be obligated pursuant to the terms of\nthis Agreement:\n\n                (a)     CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance\nexpenses to Indemnitee with respect to proceedings or claims initiated or\nbrought voluntarily by Indemnitee and not by way of defense, except with respect\nto proceedings brought to establish or enforce a \n\n\n\n\n                                      -5-\n\n\nright to indemnification under this Agreement or any other statute or law or\notherwise as required under Section 145 of the Delaware General Corporation Law,\nbut such indemnification or advancement of expenses may be provided by the\nCompany in specific cases if the Board of Directors finds it to be appropriate;\n\n                (b)     LACK OF GOOD FAITH. To indemnify Indemnitee for any\nexpenses incurred by Indemnitee with respect to any proceeding instituted by\nIndemnitee to enforce or interpret this Agreement, if a court of competent\njurisdiction determines that each of the material assertions made by Indemnitee\nin such proceeding was not made in good faith or was frivolous;\n\n                (c)     INSURED CLAIMS. To indemnify Indemnitee for expenses or\nliabilities of any type whatsoever (including, but not limited to, judgments,\nfines, ERISA excise taxes or penalties, and amounts paid in settlement) to the\nextent such expenses or liabilities have been paid directly to Indemnitee by an\ninsurance carrier under a policy of officers' and directors' liability insurance\nmaintained by the Company; or\n\n                (d)     CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for\nexpenses or the payment of profits arising from the purchase and sale by\nIndemnitee of securities in violation of Section 16(b) of the Securities\nExchange Act of 1934, as amended, or any similar successor statute.\n\n        10.     CONSTRUCTION OF CERTAIN PHRASES.\n\n                (a)     For purposes of this Agreement, references to the\n'Company' shall include, in addition to the resulting corporation, any\nconstituent corporation (including any constituent of a constituent) absorbed in\na consolidation or merger which, if its separate existence had continued, would\nhave had power and authority to indemnify its directors, officers, and employees\nor agents, so that if Indemnitee is or was a director, officer, employee or\nagent of such constituent corporation, or is or was serving at the request of\nsuch constituent corporation as a director, officer, employee or agent of\nanother corporation, partnership, joint venture, trust or other enterprise,\nIndemnitee shall stand in the same position under the provisions of this\nAgreement with respect to the resulting or surviving corporation as Indemnitee\nwould have with respect to such constituent corporation if its separate\nexistence 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 or agent of the Company\nwhich imposes duties on, or involves services by, such director, officer,\nemployee or agent with respect to an employee benefit plan, its participants, or\nbeneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee\nreasonably believed to be in the interest of the participants and beneficiaries\nof an employee benefit plan, Indemnitee shall be deemed to have acted in a\nmanner 'not opposed to the best interests of the Company' as referred to in this\nAgreement.\n\n\n\n\n                                      -6-\n\n\n        11.     ATTORNEYS' FEES. In the event that any action is instituted by\nIndemnitee under this Agreement to enforce or interpret any of the terms hereof,\nIndemnitee shall be entitled to be paid all court costs and expenses, including\nreasonable attorneys' fees, incurred by Indemnitee with respect to such action,\nunless as a part of such action, the court of competent jurisdiction determines\nthat each of the material assertions made by Indemnitee as a basis for such\naction were not made in good faith or were frivolous. In the event of an action\ninstituted by or in the name of the Company under this Agreement or to enforce\nor interpret any of the terms of this Agreement, Indemnitee shall be entitled to\nbe paid all court costs and expenses, including attorneys' fees, incurred by\nIndemnitee in defense of such action (including with respect to Indemnitee's\ncounterclaims and cross-claims made in such action), unless as a part of such\naction the court determines that each of Indemnitee's material defenses to such\naction were made in bad faith or were frivolous.\n\n        12.     MISCELLANEOUS.\n\n                (a)     GOVERNING LAW. This Agreement and all acts and\ntransactions pursuant hereto and the rights and obligations of the parties\nhereto shall be governed, construed and interpreted in accordance with the laws\nof the State of Delaware, without giving effect to principles of conflict of\nlaw.\n\n                (b)     ENTIRE AGREEMENT; ENFORCEMENT OF RIGHTS. This Agreement\nsets forth the entire agreement and understanding of the parties relating to the\nsubject matter herein and merges all prior discussions between them. No\nmodification of or amendment to this Agreement, nor any waiver of any rights\nunder this Agreement, shall be effective unless in writing signed by the parties\nto this Agreement. The failure by either party to enforce any rights under this\nAgreement shall not be construed as a waiver of any rights of such party.\n\n                (c)     CONSTRUCTION. This Agreement is the result of\nnegotiations between and has been reviewed by each of the parties hereto and\ntheir respective counsel, if any; accordingly, this Agreement shall be deemed to\nbe the product of all of the parties hereto, and no ambiguity shall be construed\nin favor of or against any one of the parties hereto.\n\n                (d)     NOTICES. Any notice, demand or request required or\npermitted to be given under this Agreement shall be in writing and shall be\ndeemed sufficient when delivered personally or sent by telegram or forty-eight\n(48) hours after being deposited in the U.S. mail, as certified or registered\nmail, with postage prepaid, and addressed to the party to be notified at such\nparty's address as set forth below or as subsequently modified by written\nnotice.\n\n                (e)     COUNTERPARTS. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one instrument.\n\n                (f)     SUCCESSORS AND ASSIGNS. This Agreement shall be binding\nupon the Company and its successors and assigns, and inure to the benefit of\nIndemnitee and Indemnitee's heirs, legal representatives and assigns.\n\n\n\n\n                                      -7-\n\n\n                (g)     SUBROGATION. In the event of payment under this\nAgreement, the Company shall be subrogated to the extent of such payment to all\nof the rights of recovery of Indemnitee, who shall execute all documents\nrequired and shall do all acts that may be necessary to secure such rights and\nto enable the Company to effectively bring suit to enforce such rights.\n\n\n\n\n\n                            [Signature Page Follows]\n\n\n\n                                      -8-\n\n\n        The parties hereto have executed this Agreement as of the day and year\nset forth on the first page of this Agreement.\n\n                                        Accrue Software, Inc.\n\n                                        By:\n                                           -------------------------------------\n\n                                        Title:\n                                              ----------------------------------\n\n                                        Address:   48634 Milmont Dr.\n                                                   Fremont, California 94538\n\n\nAGREED TO AND ACCEPTED:\n\n\n[IndemniteeName]\n\n\n\n(Signature)\n\nAddress:  [Indemnitee Address 1]\n          [Indemnitee Address 2]\n\n\n\n                                      -9-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9557],"class_list":["post-40790","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_industries-technology__software","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\/40790","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=40790"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40790"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40790"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40790"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}