{"id":40809,"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-intraware-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-intraware-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-intraware-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Intraware Inc."},"content":{"rendered":"<pre>                                   INTRAWARE, INC.\n                              INDEMNIFICATION AGREEMENT\n\n     This Indemnification Agreement ('AGREEMENT') is entered into as of the ___\nday of ________, 199_ by and between Intraware, Inc. a Delaware corporation (the\n'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 \nand fiduciaries, the significant increases in the cost of such insurance and \nthe general reductions in the coverage of such insurance.\n\n     B.   The Company and Indemnitee further recognize the substantial \nincrease in corporate litigation in general, subjecting directors, officers, \nemployees, agents and fiduciaries to expensive litigation risks at the same \ntime as the availability and coverage of liability insurance has been \nseverely 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 \nto continue 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, \nin order to induce Indemnitee to continue to provide services to the Company, \nwishes to provide for the indemnification and advancing of expenses to \nIndemnitee 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)  INDEMNIFICATION OF EXPENSES.  The Company shall indemnify \nIndemnitee to the fullest extent permitted by law if Indemnitee was or is or \nbecomes a party to or witness or other participant in, or is threatened to be \nmade a party to or witness or other participant in, any threatened, pending \nor completed action, suit, proceeding or alternative dispute resolution \nmechanism, or any hearing, inquiry or investigation that Indemnitee in good \nfaith believes might lead to the institution of any such action, suit, \nproceeding or alternative dispute resolution mechanism, whether civil, \ncriminal, administrative, investigative or other (hereinafter a 'CLAIM') by \nreason of (or arising in part out of) any event or occurrence related to the \nfact that Indemnitee is or was a director, officer, employee, agent or \nfiduciary of the Company, or any subsidiary of the Company, or is or was \nserving at the request of the Company as a director, officer, employee, agent \nor fiduciary of another corporation, partnership, joint \n\n\n\nventure, trust or other enterprise, or by reason of any action or inaction on\nthe part of Indemnitee while serving in such capacity (hereinafter an\n'INDEMNIFIABLE EVENT') against any and all expenses (including attorneys' fees\nand all other costs, expenses and obligations incurred in connection with\ninvestigating, defending, being a witness in or participating in (including on\nappeal), or preparing to defend, be a witness in or participate in, any such\naction, suit, proceeding, alternative dispute resolution mechanism, hearing,\ninquiry or investigation), judgments, fines, penalties and amounts paid in\nsettlement (if such settlement is approved in advance by the Company, which\napproval shall not be unreasonably withheld) of such Claim and any federal,\nstate, local or foreign taxes imposed on Indemnitee as a result of the actual or\ndeemed receipt of any payments under this Agreement (collectively, hereinafter\n'EXPENSES'), including all interest, assessments and other charges paid or\npayable in connection with or in respect of such Expenses.  Such payment of\nExpenses shall be made by the Company as soon as practicable but in any event no\nlater than five days after written demand by Indemnitee therefor is presented to\nthe Company.\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).  Indemnitees' obligation to reimburse the Company for any\nExpense Advance shall be unsecured and no interest shall be charged thereon.  If\nthere has not been a Change in Control (as defined in Section 10(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 1(c) 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                                      -2-\n\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 \nbeen approved by a majority of the Company's Board of Directors who were \ndirectors immediately prior to such Change in Control) then, with respect to \nall matters thereafter arising concerning the rights of Indemnitees to \npayments of Expenses and Expense Advances under this Agreement or any other \nagreement or under the Company's Certificate of Incorporation or Bylaws as \nnow or hereafter in effect, Independent Legal Counsel (as defined in Section \n10(d) hereof) shall be selected by Indemnitee and approved by the Company \n(which approval shall not be unreasonably withheld).  Such counsel, among \nother things, shall render its written opinion to the Company and Indemnitee \nas to whether and to what extent Indemnitee would be permitted to be \nindemnified under applicable law and the Company agrees to abide by such \nopinion.  The Company agrees to pay the reasonable fees of the Independent \nLegal Counsel referred to above and to fully indemnify such counsel against \nany and all expenses (including attorneys' fees), claims, liabilities and \ndamages 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 \n(1)(a) hereof or in the defense of any claim, issue or matter therein, \nIndemnitee shall be indemnified against all Expenses incurred by Indemnitee \nin 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 \npaid by the Company to Indemnitee as soon as practicable but in any event no \nlater than five days after written demand by Indemnitee therefor to the \nCompany.\n\n          (b)  NOTICE\/COOPERATION BY INDEMNITEE.  Indemnitee shall, as a \ncondition precedent to Indemnitees' 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 \nsought under this Agreement.  Notice to the Company shall be directed to the \nChief Executive Officer of the Company at the address shown on the signature \npage of this Agreement (or such other address as the Company shall designate \nin writing to Indemnitee).  In addition, Indemnitee shall give the Company \nsuch information and cooperation as it may reasonably require and as shall be \nwithin Indemnitees' power.\n\n          (c)  NO PRESUMPTIONS; BURDEN OF PROOF.  For purposes of this \nAgreement, the termination of any Claim by judgment, order, settlement \n(whether with or without court approval) or conviction, or upon a plea of \nNOLO CONTENDERE, or its equivalent, shall not create a presumption that \nIndemnitee did not meet any particular standard of conduct or have any \nparticular belief or that a court has determined that indemnification is not \npermitted by applicable law.  In addition, neither the failure \n\n                                         -3-\n\n\nof the Reviewing Party to have made a determination as to whether Indemnitee \nhas met any particular standard of conduct or had any particular belief, nor \nan actual determination by the Reviewing Party that Indemnitee has not met \nsuch standard of conduct or did not have such belief, prior to the \ncommencement of legal proceedings by Indemnitee to secure a judicial \ndetermination that Indemnitee should be indemnified under applicable law, \nshall be a defense to Indemnitee's claim or create a presumption that \nIndemnitee has not met any particular standard of conduct or did not have any \nparticular 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 \nhas liability insurance in effect which may cover such Claim, the Company \nshall give prompt notice of the commencement of such Claim to the insurers in \naccordance with the procedures set forth in the respective policies.  The \nCompany shall thereafter take all necessary or desirable action to cause such \ninsurers to pay, on behalf of Indemnitee, all amounts payable as a result of \nsuch action, suit, proceeding, inquiry or investigation in accordance with \nthe terms 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 \nIndemnitee, which approval shall not be unreasonably withheld, upon the \ndelivery to Indemnitee of written notice of its election so to do.  After \ndelivery of such notice, approval of such counsel by Indemnitee and the \nretention of such counsel by the Company, the Company will not be liable to \nIndemnitee under this Agreement for any fees of counsel subsequently incurred \nby Indemnitee with respect to the same Claim; provided that, (i) Indemnitee \nshall have the right to employ Indemnitees' counsel in any such Claim at \nIndemnitee expense and (ii) if (A) the employment of counsel by Indemnitee \nhas been previously authorized by the Company, (B) Indemnitee shall have \nreasonably concluded that there is a conflict of interest between the Company \nand Indemnitee in the conduct of any such defense, or (C) the Company shall \nnot continue to retain such counsel to defend such Claim, then the fees and \nexpenses of Indemnitee counsel shall be at the expense of the Company.  The \nCompany shall have the right to conduct such defense as it sees fit in its \nsole discretion, including the right to settle any claim against Indemnitee \nwithout the consent of the Indemnitee.\n\n     3.   ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.\n\n          (a)  SCOPE.  The Company hereby agrees to indemnify Indemnitee to \nthe fullest extent permitted by law, notwithstanding that such \nindemnification is not specifically authorized by the other provisions of \nthis Agreement, the Company's Certificate of Incorporation, the Company's \nBylaws or by statute.  In the event of any change after the date of this \nAgreement in any applicable law, statute or rule which expands the right of a \nDelaware corporation to indemnify a member of its Board of Directors or an \nofficer, employee, agent or fiduciary, it is the intent of the parties hereto \nthat Indemnitee shall enjoy by this Agreement the greater benefits afforded \nby such change.  In the event of any change in any \n\n                                         -4-\n\n\napplicable law, statute or rule which narrows the right of a Delaware\ncorporation to indemnify a member of its Board of Directors or an officer,\nemployee, agent or fiduciary, such change, to the extent not otherwise required\nby such law, statute or rule to be applied to this Agreement, shall have no\neffect on this Agreement or the parties' rights and obligations hereunder except\nas set forth in Section 8(a) hereof.\n\n          (b)  NONEXCLUSIVITY.  The indemnification provided by this Agreement\nshall be 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     4.   NO DUPLICATION OF PAYMENTS.  The Company shall not be liable under\nthis Agreement 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\nprovision of this Agreement to indemnification by the Company for some or a\nportion of Expenses incurred in connection with any Claim, but not, however, for\nall of the total amount thereof, the Company shall nevertheless indemnify\nIndemnitee for the portion of such Expenses to which Indemnitee are entitled.\n\n     6.   MUTUAL ACKNOWLEDGEMENT.  Both the Company and Indemnitee acknowledge\nthat in certain instances, Federal law or applicable public policy may prohibit\nthe Company from indemnifying its directors, officers, employees, agents or\nfiduciaries under this Agreement or otherwise.  Indemnitee understands and\nacknowledges that the Company has undertaken or may be required in the future to\nundertake with the Securities and Exchange Commission to submit the question of\nindemnification to a court in certain circumstances for a determination of the\nCompany's right under public policy to indemnify Indemnitee.\n\n     7.   LIABILITY INSURANCE.  To the extent the Company maintains liability\ninsurance applicable to directors, officers, employees, agents or fiduciaries,\nIndemnitee shall be covered by such policies 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, agents or fiduciaries, if Indemnitee\nis not an officer or director but is a key employee, agent or fiduciary.\n\n     8.   EXCEPTIONS.  Any other provision herein to the contrary\nnotwithstanding, the Company shall not be obligated pursuant to the terms of\nthis Agreement:\n\n                                         -5-\n\n\n          (a)  EXCLUDED ACTION OR OMISSIONS.  To indemnify Indemnitee for\nIndemnitee's acts, omissions or transactions from which Indemnitee or the\nIndemnitee may not be relieved of liability under applicable law;\n\n          (b)  CLAIMS INITIATED BY INDEMNITEE.  To indemnify or advance expenses\nto 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 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 expenses\nand the payment of profits arising from the purchase and sale by Indemnitee of\nsecurities in violation of Section 16(b) of the Securities Exchange Act of 1934,\nas amended, or any similar successor statute.\n\n     9.   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\nIndemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal\nrepresentatives after the expiration of two years from the date of accrual of\nsuch cause of action, and any claim or cause of action of the Company shall be\nextinguished and deemed released unless asserted by the timely filing of a legal\naction within such two-year period; PROVIDED, HOWEVER, that if any shorter\nperiod of limitations is otherwise applicable to any such cause of action, such\nshorter period shall govern.\n\n     10.  CONSTRUCTION OF CERTAIN PHRASES.\n\n          (a)  For purposes of this Agreement, references to the 'Company' shall\ninclude, in addition to the resulting corporation, any constituent corporation\n(including any constituent of a constituent) absorbed in a consolidation or\nmerger which, if its separate existence had continued, would have had power and\nauthority to indemnify its directors, officers, employees, agents or\nfiduciaries, so that if Indemnitee is or was a director, officer, employee,\nagent or fiduciary of such constituent corporation, or is or was serving at the\nrequest of such constituent corporation as a director, officer, employee, agent\nor fiduciary of another corporation, partnership, joint venture, employee\nbenefit plan, trust or other enterprise, Indemnitee shall stand in the same\nposition under the provisions of this Agreement with \n\n                                       -6-\n\n\nrespect to the resulting or surviving corporation as Indemnitee would have with\nrespect to such constituent corporation if its separate existence had continued.\n\n          (b)  For purposes of this Agreement, references to 'other enterprises'\nshall include employee benefit plans; references to 'fines' shall include any\nexcise taxes assessed on Indemnitee with respect to an employee benefit plan;\nand references to 'serving at the request of the Company' shall include any\nservice as a director, officer, employee, agent or fiduciary of the Company\nwhich imposes duties on, or involves services by, such director, officer,\nemployee, agent or fiduciary with respect to an employee benefit plan, its\nparticipants or its beneficiaries; and if Indemnitee acted in good faith and in\na 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 (i) any 'person' (as such term is used in Sections\n13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than\na trustee or other fiduciary holding securities under an employee benefit plan\nof the Company or a corporation owned directly or indirectly by the stockholders\nof the Company in substantially the same proportions as their ownership of stock\nof the Company, (A) who is or becomes the beneficial owner, directly or\nindirectly, of securities of the Company representing 10% or more of the\ncombined voting power of the Company's then outstanding Voting Securities,\nincreases his beneficial ownership of such securities by 5% or more over the\npercentage so owned by such person, or (B) becomes the 'beneficial owner' (as\ndefined in Rule 13d-3 under said Act), directly or indirectly, of securities of\nthe Company representing more than 20% of the total voting power represented by\nthe Company'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' shall\nmean an attorney or firm of attorneys, selected in accordance with the\nprovisions of Section 1(c) hereof, who shall not have otherwise performed\nservices for the Company or Indemnitee within the last three years (other \n\n                                     -7-\n\n\nthan with respect to matters concerning the rights of 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 the particular Claim for which Indemnitee are\nseeking indemnification, or Independent 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     11.  COUNTERPARTS.  This Agreement may be executed in one or more\ncounterparts, each of which shall constitute an original.\n\n     12.  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 Indemnitee continues to serve as a director, officer,\nemployee, agent or fiduciary of the Company or of any other enterprise at the\nCompany's request.\n\n     13.  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 counterclaims and cross-claims made in such\naction), and shall be entitled to the advancement of Expenses with respect to\nsuch action, unless, as a part of such action, a court having jurisdiction over\nsuch action determines that each of Indemnitee material defenses to such action\nwas made in bad faith or was frivolous.\n\n                                       -8-\n\n\n     14.  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) days after deposit with the U.S. Postal\nService or other applicable postal service, if delivered by first class mail,\npostage prepaid, (b) upon delivery, if delivered by hand, (c) one business day\nafter 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 delivered by facsimile transmission, with copy by\nfirst class mail, postage prepaid, and shall be addressed if to Indemnitee, at\nthe Indemnitee address as set forth beneath Indemnitee signatures 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     15.  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     16.  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     17.  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     18.  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     19.  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\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                                         -9-\n\n\n     20.  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     21.  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                                         -10-\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date first above written.\n\n\n                                         INTRAWARE, INC.\n\n\n                                         By:  \n                                            --------------------------------\n\n                                         Title:    \n                                               -----------------------------\n\n                                         Address:  25 ORINDA WAY  \n                                                   -------------------------\n                                                   ORINDA, CA 94563      \n                                                   -------------------------\n\n\nAGREED TO AND ACCEPTED BY:\n\n-----------------------------------\nName:\n\nAddress:  \n         --------------------------\n\n                                         -11-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907],"corporate_contracts_industries":[],"corporate_contracts_types":[9553,9557],"class_list":["post-40809","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","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\/40809","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=40809"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40809"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40809"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40809"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}