{"id":40795,"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-caldera-systems-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-caldera-systems-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-caldera-systems-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Caldera Systems Inc."},"content":{"rendered":"<pre>\n                            INDEMNIFICATION AGREEMENT\n\n\n        THIS INDEMNIFICATION AGREEMENT (the 'Agreement') is made and entered\ninto this ___ day of _________, ____, between Caldera Systems, Inc., a Delaware\ncorporation (the 'Company'), and _____________________ ('Indemnitee').\n\n        A. Indemnitee, as a member of the Company's Board of Directors and\/or an\nofficer of the Company, performs valuable services for the Company;\n\n        B. The Company and Indemnitee recognize the continued difficulty in\nobtaining liability insurance for corporate directors, officers, employees,\ncontrolling persons, agents and fiduciaries, the significant increases in the\ncost of such insurance and the general reductions in the coverage of such\ninsurance.\n\n        C. The Company and Indemnitee further recognize the substantial increase\nin corporate litigation in general, subjecting directors, officers, employees,\ncontrolling persons, agents and fiduciaries to expensive litigation risks at the\nsame time as the availability and coverage of liability insurance has been\nseverely limited.\n\n        D. The stockholders of the Company have adopted Bylaws (the 'Bylaws')\nproviding for the indemnification of the officers, directors, agents and\nemployees of the Company to the maximum extent authorized by Section 145 of the\nDelaware Corporations Code, as amended ('Code').\n\n        E. Indemnitee does not regard the current protection available for the\nCompany's directors, officers, employees, controlling persons, agents and\nfiduciaries as adequate under the present circumstances, and Indemnitee and\nother directors, officers, employees, controlling persons, agents and\nfiduciaries of the Company may not be willing to serve or continue to serve in\nsuch capacities without additional protection.\n\n        F. The Bylaws and the Code, by their non-exclusive nature, permit\ncontracts between the Company and its directors, officers, employees,\ncontrolling persons, agents or fiduciaries with respect to indemnification of\nsuch directors.\n\n        G. The Company (i) desires to attract and retain the involvement of\nhighly qualified individuals, such as Indemnitee, to serve the Company and, in\npart, in order to induce Indemnitee to be involved with the Company, and (ii)\nwishes to provide for the indemnification and advancing of expenses to\nIndemnitee to the maximum extent permitted by law.\n\n        H. 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, in consideration of Indemnitee's service to the Company,\nthe parties hereto agree as follows:\n\n   2\n\n        1. INDEMNITY OF INDEMNITEE. The Company hereby agrees to indemnify\nIndemnitee to the fullest extent permitted by law, even if such indemnification\nis not specifically authorized by the other provisions of this Agreement, the\nCompany's Certificate of Incorporation (the 'Certificate'), the Company's Bylaws\nor by statute. In the event of any change after the date of this Agreement in\nany applicable law, statute or rule which expands the right of a Delaware\ncorporation to indemnify a member of its Board of Directors or an officer,\nemployee, controlling person, agent or fiduciary, it is the intent of the\nparties hereto that Indemnitee shall enjoy by this Agreement the greater\nbenefits afforded by such change. In the event of any change in any applicable\nlaw, statute or rule which narrows the right of a Delaware corporation to\nindemnify a member of its Board of Directors or an officer, employee, agent or\nfiduciary, such change, to the extent not otherwise required by such law,\nstatute or rule to be applied to this Agreement, shall have no effect on this\nAgreement or the parties' rights and obligations hereunder except as set forth\nin Section 9(a) hereof.\n\n        2. Additional Indemnity. The Company hereby agrees to hold harmless and\nindemnify the Indemnitee:\n\n            (a) against any and all expenses incurred by Indemnitee, as set\nforth in Section 3(a) below; and\n\n            (b) otherwise to the fullest extent not prohibited by the\nCertificate, the Bylaws or the Code.\n\n        3. INDEMNIFICATION RIGHTS.\n\n            (a) Indemnification of Expenses. The Company shall indemnify and\nhold harmless Indemnitee, together with Indemnitee's partners, affiliates,\nemployees, agents and spouse and each person who controls any of them or who may\nbe liable within the meaning of Section 15 of the Securities Act of 1933, as\namended (the 'Securities Act'), or Section 20 of the Securities Exchange Act of\n1934, as amended (the 'Exchange Act'), to the fullest extent permitted by law if\nIndemnitee was or is or becomes a party to or witness or other participant in,\nor is threatened to be made a party to or witness or other participant in, any\nthreatened, pending or completed action, suit, proceeding or alternative dispute\nresolution mechanism, or any hearing, inquiry or investigation that Indemnitee\nand the Company believe might lead to the institution of any such action, suit,\nproceeding or alternative dispute resolution mechanism, whether civil, criminal,\nadministrative, investigative or other (hereinafter a 'Claim') against any and\nall expenses (including attorneys' fees and all other costs, expenses and\nobligations incurred in connection with investigating, defending, being a\nwitness in or participating in (including on appeal), or preparing to defend, be\na witness in or participate in, any such action, suit, proceeding, alternative\ndispute resolution mechanism, hearing, inquiry or investigation, judgments,\nfines, penalties and amounts paid in settlement (if such settlement is approved\nin advance by the Company, which approval shall not be unreasonably withheld) of\nsuch Claim and any federal, state, local or foreign taxes imposed on Indemnitee\nas a result of the actual or deemed receipt of any payments under this Agreement\n(collectively, hereinafter 'Expenses'), including all interest, assessments and\nother charges paid or payable in connection with or in respect of such Expenses,\nincurred by Indemnitee by reason of (or arising in part out of) any event or\noccurrence related to the fact that Indemnitee is or was a director, officer,\nemployee,\n\n                                       2\n   3\n\ncontrolling person, agent or fiduciary of the Company or any subsidiary of the\nCompany, or is or was serving at the request of the Company as a director,\nofficer, employee, controlling person, agent or fiduciary of another\ncorporation, partnership, joint venture, trust or other enterprise, or by reason\nof any action or inaction on the part of Indemnitee while serving in such\ncapacity including, without limitation, any and all losses, claims, damages,\nexpenses and liabilities, joint or several (including any investigation, legal\nand other expenses incurred in connection with, and any amount paid in\nsettlement of, any action, suit, proceeding or any claim asserted) under the\nSecurities Act, the Exchange Act or other federal or state statutory law or\nregulation, at common law or otherwise, which relate directly or indirectly to\nthe registration, purchase, sale or ownership of any securities of the Company\nor to any fiduciary obligation owed with respect thereto (hereinafter an\n'Indemnification Event'). Such payment of Expenses shall be made by the Company\nas soon as practicable but in any event no later than 25 days after written\ndemand by Indemnitee therefor is presented to the Company.\n\n            (b) Reviewing Party. Notwithstanding the foregoing, (i) the\nobligations of the Company under Section 2 shall be subject to the condition\nthat the Reviewing Party (as described in Section 11(e) hereof) shall not have\ndetermined (in a written opinion, in any case in which the Independent Legal\nCounsel as defined in Section 11(d) hereof is involved) that Indemnitee would\nnot be permitted to be indemnified under applicable law, and (ii) and Indemnitee\nacknowledges and agrees that the obligation of the Company to make an advance\npayment of Expenses to Indemnitee pursuant to Section 4(a) (an 'Expense\nAdvance') shall be subject to the condition that, if, when and to the extent\nthat the Reviewing Party determines that Indemnitee would not be permitted to be\nso indemnified under applicable law, the Company shall be entitled to be\nreimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all\nsuch amounts theretofore paid; provided, however, that if Indemnitee has\ncommenced or thereafter commences legal proceedings in a court of competent\njurisdiction to secure a determination that Indemnitee should be indemnified\nunder applicable law, any determination made by the Reviewing Party that\nIndemnitee would not be permitted to be indemnified under applicable law shall\nnot be binding and Indemnitee shall not be required to reimburse the Company for\nany Expense Advance until a final judicial determination is made with respect\nthereto (as to which all rights of appeal therefrom have been exhausted or\nlapsed). Indemnitee's obligation to reimburse the Company for any Expense\nAdvance shall be unsecured and no interest shall be charged thereon. If there\nhas not been a Change in Control (as defined in Section 11(c) hereof), the\nReviewing Party shall be selected by the Board of Directors, and if there has\nbeen such a Change in Control (other than a Change in Control which has been\napproved by a majority of the Company's Board of Directors who were directors\nimmediately prior to such Change in Control), the Reviewing Party shall be the\nIndependent Legal Counsel referred to in Section 3(e) hereof. If there has been\nno determination by the Reviewing Party or if the Reviewing Party determines\nthat Indemnitee substantively would not be permitted to be indemnified in whole\nor in part under applicable law, Indemnitee shall have the right to commence\nlitigation seeking an initial determination by the court or challenging any such\ndetermination by the Reviewing Party or any aspect thereof, including the legal\nor factual bases therefor, and the Company hereby consents to service of process\nand to appear in any such proceeding. Any determination by the Reviewing Party\notherwise shall be conclusive and binding on the Company and Indemnitee.\n\n                                       3\n   4\n\n                (c) Contribution. If the indemnification provided for in Section\n3(a) above for any reason is held by a court of competent jurisdiction to be\nunavailable to an Indemnitee in respect of any losses, claims, damages, expenses\nor liabilities referred to therein, then the Company, in lieu of indemnifying\nIndemnitee thereunder, shall contribute to the amount paid or payable by\nIndemnitee as a result of such losses, claims, damages, expenses or liabilities\n(i) in such proportion as is appropriate to reflect the relative benefits\nreceived by the Company and Indemnitee, or (ii) if the allocation provided by\nclause (i) above is not permitted by applicable law, in such proportion as is\nappropriate to reflect not only the relative benefits referred to in clause (i)\nabove but also the relative fault of the Company and Indemnitee in connection\nwith the action or inaction which resulted in such losses, claims, damages,\nexpenses or liabilities, as well as any other relevant equitable considerations.\nIn connection with the registration of the Company's securities, the relative\nbenefits received by the Company and Indemnitee shall be deemed to be in the\nsame respective proportions that the net proceeds from the offering (before\ndeducting expenses) received by the Company and the Indemnitee, in each case as\nset forth in the table on the cover page of the applicable prospectus, bear to\nthe aggregate public offering price of the securities so offered. The relative\nfault of the Company and Indemnitee shall be determined by reference to, among\nother things, whether the untrue or alleged untrue statement of a material fact\nor the omission or alleged omission to state a material fact relates to\ninformation supplied by the Company or Indemnitee and the parties' relative\nintent, knowledge, access to information and opportunity to correct or prevent\nsuch statement or omission.\n\n        The Company and Indemnitee agree that it would not be just and equitable\nif contribution pursuant to this Section 3(c) were determined by pro rata or per\ncapita allocation or by any other method of allocation which does not take\naccount of the equitable considerations referred to in the immediately preceding\nparagraph. In connection with the registration of the Company's securities, in\nno event shall an Indemnitee be required to contribute any amount under this\nSection 3(c) in excess of the lesser of (i) that proportion of the total of such\nlosses, claims, damages or liabilities indemnified against equal to the\nproportion of the total securities sold under such registration statement which\nis being sold by Indemnitee or (ii) the proceeds received by Indemnitee from its\nsale of securities under such registration statement. No person found guilty of\nfraudulent misrepresentation (within the meaning of Section 10(f) of the\nSecurities Act) shall be entitled to contribution from any person who was not\nfound guilty of such fraudulent misrepresentation.\n\n            (d) Survival Regardless of Investigation. The indemnification and\ncontribution provided for herein will remain in full force and effect regardless\nof any investigation made by or on behalf of Indemnitee or any officer,\ndirector, employee, agent or controlling person of Indemnitee.\n\n            (e) Change in Control. After the date hereof, the Company agrees\nthat if there is a Change in Control of the Company (other than a Change in\nControl which has been approved by a majority of the Company's Board of\nDirectors who were directors immediately prior to such Change in Control) then,\nwith respect to all matters thereafter arising concerning the rights of\nIndemnitee to payments of Expenses under this Agreement or any other agreement\nor under the Company's Certificate or Bylaws as now or hereafter in effect,\nIndependent Legal Counsel (as defined in Section 11(d) hereof) shall be selected\nby Indemnitee and approved by the Company (which approval shall not be\nunreasonably withheld). Such counsel, among other\n\n                                       4\n   5\n\nthings, shall render its written opinion to the Company and Indemnitee as to\nwhether and to what extent Indemnitee would be permitted to be indemnified under\napplicable law. The Company agrees to abide by such opinion and to pay the\nreasonable fees of the Independent Legal Counsel referred to above and to fully\nindemnify such counsel against any and all reasonable expenses (including\nattorneys' fees), claims, liabilities and damages arising out of or relating to\nthis Agreement or its engagement pursuant hereto.\n\n            (f) Mandatory Payment of Expenses. Notwithstanding any other\nprovision of this Agreement, to the extent that Indemnitee has been successful\non the merits or otherwise, including, without limitation, the dismissal of an\naction without prejudice, in the defense of any action, suit, proceeding,\ninquiry or investigation referred to in Section 3(a) hereof or in the defense of\nany claim, issue or matter therein, Indemnitee shall be indemnified against all\nExpenses incurred by Indemnitee in connection herewith.\n\n        4. EXPENSES; INDEMNIFICATION PROCEDURE.\n\n            (a) Advancement of Expenses. The Company shall advance all Expenses\nincurred by Indemnitee. The advances to be made hereunder shall be paid by the\nCompany to Indemnitee as soon as practicable but in any event no later than ten\nbusiness days after written demand by Indemnitee therefor to the Company.\n\n            (b) Notice\/Cooperation by Indemnitee. Indemnitee shall give the\nCompany notice in writing in accordance with Section 15 of this Agreement as\nsoon as practicable of any Claim made against Indemnitee for which\nindemnification will or could be sought under this Agreement.\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 4(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 each of the Company's policies. The Company\nshall thereafter take all necessary or desirable action to cause such\n\n                                       5\n   6\n\ninsurers to pay, on behalf of Indemnitee, all amounts payable as a result of\nsuch action, suit, proceeding, inquiry or investigation in accordance with the\nterms of such policies.\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 the\nIndemnitee (which approval shall not be unreasonably withheld) upon the delivery\nto Indemnitee of written notice of its election to do so. 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.\n\n        5. NONEXCLUSIVITY. The indemnification provided by this Agreement shall\nbe in addition to any rights to which Indemnitee may be entitled under the\nCompany's Certificate of Incorporation, its Bylaws, any agreement, any vote of\nstockholders or disinterested directors, the General Corporation Law of the\nState of Delaware, or otherwise. The indemnification provided under this\nAgreement shall continue as to Indemnitee for any action Indemnitee took or did\nnot take while serving in an indemnified capacity even though Indemnitee may\nhave ceased to serve in such capacity.\n\n        6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under\nthis Agreement to make any payment in connection with any Claim made against any\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        7. PARTIAL INDEMNIFICATION. If any Indemnitee is entitled under any\nprovision of this Agreement to indemnification by the Company for any 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        8. MUTUAL ACKNOWLEDGEMENT. 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, controlling\npersons, agents or fiduciaries under this Agreement or otherwise. Each\nIndemnitee understands and acknowledges that the Company has undertaken or may\nbe required in the future to undertake with the Securities and Exchange\nCommission to submit the question of indemnification to a court in certain\ncircumstances for a determination of the Company's rights under public policy to\nindemnify Indemnitee.\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                                       6\n   7\n\n            (a) Claims Initiated by Indemnitee. To indemnify or advance expenses\nto any Indemnitee with respect to Claims initiated or brought voluntarily by\nIndemnitee and not by way of defense, except (i) with respect to actions or\nproceedings to establish or enforce a right to indemnify under this Agreement or\nany other agreement or insurance policy or under the Company's Certificate of\nIncorporation or Bylaws now or hereafter in effect relating to Claims for\nIndemnifiable Events, (ii) in specific cases if the Board of Directors has\napproved the initiation or bringing of such Claim, or (iii) as otherwise\nrequired under Section 145 of the Delaware General Corporation Law, regardless\nof whether Indemnitee ultimately is determined to be entitled to such\nindemnification, advance expense payment or insurance recovery, as the case may\nbe; or\n\n            (b) Claims Under Section 16(b). To indemnify Indemnitee for expenses\nand the payment of profits arising from the purchase and sale by Indemnitee of\nsecurities in violation of Section 16(b) of the Exchange Act or any similar\nsuccessor statute; or\n\n            (c) Claims Excluded Under Section 145 of the Delaware General\nCorporation Law. To indemnify Indemnitee if (i) Indemnitee did not act in good\nfaith or in a manner reasonably believed by such Indemnitee to be in or not\nopposed to the best interests of the Company, or (ii) with respect to any\ncriminal action or proceeding, Indemnitee had reasonable cause to believe\nIndemnitee's conduct was unlawful, or (iii) Indemnitee shall have been adjudged\nto be liable to the Company unless and only to the extent the court in which\nsuch action was brought shall permit indemnification as provided in Section\n145(b) of the Delaware General Corporation Law.\n\n        10. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause\nof action shall be asserted by or in the right of the Company against any\nIndemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or\nlegal representatives after the expiration of five years from the date of\naccrual of such cause of action, and any claim or cause of action of the Company\nshall be extinguished and deemed released unless asserted by the timely filing\nof a legal action within such five-year period; provided, however, that if any\nshorter period of limitations is otherwise applicable to any such cause of\naction, such shorter period shall govern.\n\n        11. 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 constituent) absorbed in a\nconsolidation or merger which, if its separate existence had continued, would\nhave had power and authority to indemnify its directors, officers, employees,\nagents or fiduciaries, so that if Indemnitee is or was a director, officer,\nemployee, agent, control person, or fiduciary of such constituent corporation,\nor is or was serving at the request of such constituent corporation as a\ndirector, officer, employee, control person, agent or fiduciary of another\ncorporation, partnership, joint venture, employee benefit plan, trust or other\nenterprise, Indemnitee shall stand in the same position under the provisions of\nthis Agreement with respect to the resulting or surviving corporation as\nIndemnitee would have with respect to such constituent corporation if its\nseparate existence had continued.\n\n                                       7\n   8\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 any 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 any Indemnitee acted in good faith\nand in a manner Indemnitee reasonably believed to be in the interests 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 (i) any 'person' (as such term is used in Sections\n13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other\nfiduciary holding securities under an employee benefit plan of the Company or a\ncorporation owned directly or indirectly by the stockholders of the Company in\nsubstantially the same proportions as their ownership of stock of the Company,\n(A) who is or becomes the beneficial owner, directly or indirectly, of\nsecurities of the Company representing 10% or more of the combined voting power\nof the Company's then outstanding Voting Securities, increases his or her\nbeneficial ownership of such securities by 5% or more over the percentage so\nowned by such person, or (B) becomes the 'beneficial owner' (as defined in Rule\n13d-3 under said Exchange Act), directly or indirectly, of securities of the\nCompany representing more than 20% of the total voting power represented by the\nCompany's then outstanding Voting Securities, (ii) during any period of two\nconsecutive years, individuals who at the beginning of such period constitute\nthe Board of Directors of the Company and any new director whose election by the\nBoard of Directors or nomination for election by the Company's stockholders was\napproved by a vote of at least two-thirds of the directors then still in office\nwho either were directors at the beginning of the period or whose election or\nnomination for election was previously so approved, cease for any reason to\nconstitute a majority thereof, or (iii) the stockholders of the Company approve\na merger or consolidation of the Company with any other corporation other than a\nmerger or consolidation which would result in the Voting Securities of the\nCompany outstanding immediately prior thereto continuing to represent (either by\nremaining outstanding or by being converted into Voting Securities of the\nsurviving entity) at least 80% of the total voting power represented by the\nVoting Securities of the Company or such surviving entity outstanding\nimmediately after such merger or consolidation, or the stockholders of the\nCompany approve a plan of complete liquidation of the Company or an agreement\nfor the sale or disposition by the Company of (in one transaction or a series of\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 3(d) hereof, who shall not have otherwise performed\nservices for the Company or any Indemnitee within the last three years (other\nthan with respect to matters concerning the right of any Indemnitee under this\nAgreement, or of other indemnitees under similar indemnity agreements).\n\n            (e) For purposes of this Agreement, a 'Reviewing Party' shall mean\nany 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\n\n                                       8\n   9\n\nthe particular Claim for which Indemnitee are seeking indemnification, or\nIndependent Legal Counsel.\n\n            (f) For purposes of this Agreement, 'Voting Securities' shall mean\nany securities of the Company that vote generally in the election of directors.\n\n        12. COUNTERPARTS. This Agreement may be executed in one or more\ncounterparts, each of which shall constitute an original.\n\n        13. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be\nbinding upon and inure to the benefit of and be enforceable by the parties\nhereto and their respective successors, assigns, including any direct or\nindirect successor by purchase, merger, consolidation or otherwise to all or\nsubstantially all of the business and\/or assets of the Company, spouses, heirs,\nand personal and legal representatives. The Company shall require and cause any\nsuccessor (whether direct or indirect by purchase, merger, consolidation or\notherwise) to all, substantially all, or a substantial part, of the business\nand\/or assets of the Company, by written agreement in form and substance\nsatisfactory to Indemnitee, expressly to assume and agree to perform this\nAgreement in the same manner and to the same extent that the Company would be\nrequired to perform if no such succession had taken place. This Agreement shall\ncontinue in effect with respect to Claims relating to Indemnifiable Events\nregardless of whether any Indemnitee continues to serve as a director, officer,\nemployee, agent, controlling person, or fiduciary of the Company or of any other\nenterprise, including subsidiaries of the Company, at the Company's request.\n\n        14. ATTORNEYS' FEES. In the event that any action is instituted by an\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, any Indemnitee shall be entitled to be paid all Expenses incurred by\nIndemnitee with respect to such action if Indemnitee is ultimately successful 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 of competent\njurisdiction over such action determines that the material assertions made by\nIndemnitee as a basis for such action were not made in good faith or were\nfrivolous. In the event of an action instituted by or in the name of the Company\nunder this Agreement to enforce or interpret any of the terms of this Agreement,\nIndemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in\ndefense of such action (including costs and expenses incurred with respect to\nIndemnitee counterclaims and cross-claims made in such action), and shall be\nentitled to the advancement of Expenses with respect to such action, unless, as\na part of such action, a court having jurisdiction over such action determines\nthat the Indemnitee's material defenses to such action were made in bad faith or\nwere frivolous.\n\n        15. 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 calendar days after deposit with the U.S.\nPostal Service or other applicable postal service, if delivered by first class\nmail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business\nday after the business day of deposit with Federal Express or similar overnight\ncourier, freight prepaid, or (d) one day after the business day of delivery by\nfacsimile transmission, if deliverable by facsimile transmission, with copy by\nfirst class mail, postage\n\n                                       9\n   10\n\nprepaid, and shall be addressed if to Indemnitee, at Indemnitee's address as set\nforth beneath Indemnitee's signature to this Agreement and if to the Company at\nthe address of its principal corporate offices (attention: Chief Executive\nOfficer) or at such other address as such party may designate by ten calendar\ndays' advance written notice to the other party hereto.\n\n        16. 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        17. 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        18. CHOICE OF LAW. This Agreement shall be governed by and its\nprovisions construed and enforced in accordance with the laws of the State of\nDelaware, as applied to contracts between Delaware residents, entered into and\nto be performed entirely within the State of Delaware, without regard to the\nconflict of laws principles thereof.\n\n        19. SUBROGATION. In the event of payment under this Agreement, the\nCompany shall be subrogated to the extent of such payment to all of the rights\nof recovery of Indemnitee who shall execute all documents required and shall do\nall acts that may be necessary to secure such rights and to enable the Company\neffectively to bring suit to enforce such rights.\n\n        20. AMENDMENT AND TERMINATION. No amendment, modification, termination\nor cancellation of this Agreement shall be effective unless it is in writing\nsigned by all parties hereto. No waiver of any of the provisions of this\nAgreement shall be deemed or shall constitute a waiver of any other provisions\nhereof (whether or not similar) nor shall such waiver constitute a continuing\nwaiver.\n\n        21. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the\nentire understanding between the parties hereto and supersedes and merges all\nprevious written and oral negotiations, commitments, understandings and\nagreements relating to the subject matter hereof between the parties hereto.\n\n        22. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this\nAgreement shall be construed as giving the Indemnitee any right to be retained\nin the employ of the Company or any of its subsidiaries.\n\n                                       10\n   11\n\n        23. CORPORATE AUTHORITY. The Board of Directors of the Company has\napproved the terms of this Agreement.\n\n\n                                       11\n   12\n\n        IN WITNESS WHEREOF, the parties hereto have executed this Agreement on\nand as of the day and year first above written.\n\n\n                                   COMPANY:\n\n                                   CALDERA SYSTEMS, INC.,\n                                   a Delaware corporation\n\n\n\n                                   By:\n                                      ------------------------------------------\n                                          Ransom H. Love,\n                                          President\n\n                                   Address:\n                                           -------------------------------------\n                                           -------------------------------------\n\n                                   INDEMNITEE:\n\n\n                                   Signature:\n                                             -----------------------------------\n\n                                   Name:\n                                        ----------------------------------------\n\n                                   Address:\n                                           -------------------------------------\n                                           -------------------------------------\n\n\n                                       12\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9557],"class_list":["post-40795","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-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\/40795","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=40795"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40795"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40795"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}