{"id":40814,"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-liberate-technologies2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-liberate-technologies2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-liberate-technologies2.html","title":{"rendered":"Indemnification Agreement &#8211; Liberate Technologies"},"content":{"rendered":"<pre>\n\n                              INDEMNIFICATION AGREEMENT\n\n          THIS AGREEMENT (the 'Agreement') is made and entered into as of\n___________, ____ between Liberate Technologies, a Delaware corporation ('the\nCompany'), and _____________________ ('Indemnitee').\n\n          WITNESSETH THAT:\n\n          WHEREAS, Indemnitee performs a valuable service for the Company; and\n\n          WHEREAS, the Board of Directors of the Company has adopted Bylaws \n(the 'Bylaws') providing for the indemnification of the officers and \ndirectors of the Company to the maximum extent authorized by Section 145 of \nthe Delaware General Corporation Law, as amended ('Law'); and\n\n          WHEREAS, the Bylaws and the Law, by their nonexclusive nature, \npermit contracts between the Company and the officers or directors of the \nCompany with respect to indemnification of such officers or directors; and\n\n          WHEREAS, in accordance with the authorization as provided by the \nLaw, the Company may purchase and maintain a policy or policies of directors' \nand officers' liability insurance ('D &amp; O Insurance'), covering certain \nliabilities which may be incurred by its officers or directors in the \nperformance of their obligations to the Company; and\n\n          WHEREAS, in order to induce Indemnitee to continue to serve as an \nofficer or director of the Company, the Company has determined and agreed to \nenter into this contract with Indemnitee;\n\n          NOW, THEREFORE, in consideration of Indemnitee's service as an \nofficer or director after the date hereof, the parties hereto agree as \nfollows:\n\n          1.    INDEMNITY OF INDEMNITEE.  The Company hereby agrees to hold \nharmless and indemnify Indemnitee to the full extent authorized or permitted \nby the provisions of the Law, as such may be amended from time to time, and \nArticle VI of the Bylaws, as such may be amended.  In furtherance of the \nforegoing indemnification, and without limiting the generality thereof:\n\n                (a)    PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT \nOF THE COMPANY.  Indemnitee shall be entitled to the rights of \nindemnification provided in this Section l(a) if, by reason of his Corporate \nStatus (as hereinafter defined), he is, or is threatened to be made, a party \nto or participant in any Proceeding (as hereinafter defined) other than a \nProceeding by or in the right of the Company.  Pursuant to this Section 1(a), \nIndemnitee shall be indemnified against all Expenses (as hereinafter \ndefined), judgments, penalties, fines and amounts paid in settlement actually \nand reasonably incurred by him or on his behalf in connection with such \nProceeding or any claim, issue or matter therein, if he acted in good faith \n\n\n\nand in a manner he reasonably believed to be in or not opposed to the best \ninterests of the Company and, with respect to any criminal Proceeding, had no \nreasonable cause to believe his conduct was unlawful.\n\n                (b)    PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. \nIndemnitee shall be entitled to the rights of indemnification provided in \nthis Section 1(b) if, by reason of his Corporate Status, he is, or is \nthreatened to be made, a party to or participant in any Proceeding brought by \nor in the right of the Company.  Pursuant to this Section 1(b), Indemnitee \nshall be indemnified against all Expenses actually and reasonably incurred by \nhim or on his behalf in connection with such Proceeding if he acted in good \nfaith and in a manner he reasonably believed to be in or not opposed to the \nbest interests of the Company; provided, however, that, if applicable law so \nprovides, no indemnification against such Expenses shall be made in respect \nof any claim, issue or matter in such Proceeding as to which Indemnitee shall \nhave been adjudged to be liable to the Company unless and to the extent that \nthe Court of Chancery of the State of Delaware shall determine that such \nindemnification may be made.\n\n                (c)    INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY \nOR PARTLY SUCCESSFUL.  Notwithstanding any other provision of this Agreement, \nto the extent that Indemnitee is, by reason of his Corporate Status, a party \nto and is successful, on the merits or otherwise, in any Proceeding, he shall \nbe indemnified to the maximum extent permitted by law against all Expenses \nactually and reasonably incurred by him or on his behalf in connection \ntherewith.  If Indemnitee is not wholly successful in such Proceeding but is \nsuccessful, on the merits or otherwise, as to one or more but less than all \nclaims, issues or matters in such Proceeding, the Company shall indemnify \nIndemnitee against all Expenses actually and reasonably incurred by him or on \nhis behalf in connection with each successfully resolved claim, issue or \nmatter.  For purposes of this Section and without limitation, the termination \nof any claim, issue or matter in such a Proceeding by dismissal, with or \nwithout prejudice, shall be deemed to be a successful result as to such \nclaim, issue or matter.\n\n          2.    ADDITIONAL INDEMNITY.  In addition to, and without regard to \nany limitations on, the indemnification provided for in Section 1, the \nCompany shall and hereby does indemnify and hold harmless Indemnitee against \nall Expenses, judgments, penalties, fines and amounts paid in settlement \nactually and reasonably incurred by him or on his behalf if, by reason of his \nCorporate Status, he is, or is threatened to be made, a party to or \nparticipant in any Proceeding (including a Proceeding by or in the right of \nthe Company), including, without limitation, all liability arising out of the \nnegligence or active or passive wrongdoing of Indemnitee.  The only \nlimitation that shall exist upon the Company's obligations pursuant to this \nAgreement shall be that the Company shall not be obligated to make any \npayment to Indemnitee that is finally determined (under the procedures, and \nsubject to the presumptions, set forth in Sections 6 and 7 hereof) to be \nunlawful under Delaware law.\n\n          3.    CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.\n\n                (a)    Whether or not the indemnification provided in \nSections 1 and 2 hereof is available, in respect of any threatened, pending \nor completed action, suit or proceeding \n\n                                     2\n\n\nin which Company is jointly liable with Indemnitee (or would be if joined in \nsuch action, suit or proceeding), Company shall pay, in the first instance, \nthe entire amount of any judgment or settlement of such action, suit or \nproceeding without requiring Indemnitee to contribute to such payment and \nCompany hereby waives and relinquishes any right of contribution it may have \nagainst Indemnitee.  Company shall not enter into any settlement of any \naction, suit or proceeding in which Company is jointly liable with Indemnitee \n(or would be if joined in such action, suit or proceeding) unless such \nsettlement provides for a full and final release of all claims asserted \nagainst Indemnitee.\n\n                (b)    Without diminishing or impairing the obligations of \nthe Company set forth in the preceding subparagraph, if, for any reason, \nIndemnitee shall elect or be required to pay all or any portion of any \njudgment or settlement in any threatened, pending or completed action, suit \nor proceeding in which Company is jointly liable with Indemnitee (or would be \nif joined in such action, suit or proceeding), Company shall contribute to \nthe amount of expenses (including attorneys' fees), judgments, fines and \namounts paid in settlement actually and reasonably incurred and paid or \npayable by Indemnitee in proportion to the relative benefits received by the \nCompany and all officers, directors or employees of the Company other than \nIndemnitee who are jointly liable with Indemnitee (or would be if joined in \nsuch action, suit or proceeding), on the one hand, and Indemnitee, on the \nother hand, from the transaction from which such action, suit or proceeding \narose; provided, however, that the proportion determined on the basis of \nrelative benefit may, to the extent necessary to conform to law, be further \nadjusted by reference to the relative fault of Company and all officers, \ndirectors or employees of the Company other than Indemnitee who are jointly \nliable with Indemnitee (or would be if joined in such action, suit or \nproceeding), on the one hand, and Indemnitee, on the other hand, in \nconnection with the events that resulted in such expenses, judgments, fines \nor settlement amounts, as well as any other equitable considerations which \nthe law may require to be considered.  The relative fault of Company and all \nofficers, directors or employees of the Company other than Indemnitee who are \njointly liable with Indemnitee (or would be if joined in such action, suit or \nproceeding), on the one hand, and Indemnitee, on the other hand, shall be \ndetermined by reference to, among other things, the degree to which their \nactions were motivated by intent to gain personal profit or advantage, the \ndegree to which their liability is primary or secondary, and the degree to \nwhich their conduct is active or passive.\n\n                (c)    Company hereby agrees to fully indemnify and hold \nIndemnitee harmless from any claims of contribution which may be brought by \nofficers, directors or employees of the Company other than Indemnitee who may \nbe jointly liable with Indemnitee.\n\n          4.    INDEMNIFICATION FOR EXPENSES OF A WITNESS.  Notwithstanding \nany other provision of this Agreement, to the extent that Indemnitee is, by \nreason of his Corporate Status, a witness in any Proceeding to which \nIndemnitee is not a party, he shall be indemnified against all Expenses \nactually and reasonably incurred by him or on his behalf in connection \ntherewith.\n\n          5.    ADVANCEMENT OF EXPENSES.  Notwithstanding any other provision \nof this Agreement, the Company shall advance all Expenses incurred by or on \nbehalf of Indemnitee in connection with any Proceeding by reason of \nIndemnitee's Corporate Status within ten (10) days \n\n                                     3\n\n\nafter the receipt by the Company of a statement or statements from Indemnitee \nrequesting such advance or advances from time to time, whether prior to or \nafter final disposition of such Proceeding. Such statement or statements \nshall reasonably evidence the Expenses incurred by Indemnitee and shall \ninclude or be preceded or accompanied by an undertaking by or on behalf of \nIndemnitee to repay any Expenses advanced if it shall ultimately be \ndetermined that Indemnitee is not entitled to be indemnified against such \nExpenses.  Any advances and undertakings to repay pursuant to this Section 5 \nshall be unsecured and interest free.  Notwithstanding the foregoing, the \nobligation of the Company to advance Expenses pursuant to this Section 5 \nshall be subject to the condition that, if, when and to the extent that the \nCompany determines that Indemnitee would not be permitted to be indemnified \nunder applicable law, the Company shall be entitled to be reimbursed, within \nthirty (30) days of such determination, by Indemnitee (who hereby agrees to \nreimburse the Company) for all such amounts theretofore paid; provided, \nhowever, that if Indemnitee has commenced or thereafter commences legal \nproceedings in a court of competent jurisdiction to secure a determination \nthat Indemnitee should be indemnified under applicable law, any determination \nmade by the Company that Indemnitee would not be permitted to be indemnified \nunder applicable law shall not be binding and Indemnitee shall not be \nrequired to reimburse the Company for any advance of Expenses until a final \njudicial determination is made with respect thereto (as to which all rights \nof appeal therefrom have been exhausted or lapsed).\n\n          6.    PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT \nTO INDEMNIFICATION.  It is the intent of this Agreement to secure for \nIndemnitee rights of indemnity that are as favorable as may be permitted \nunder the law and public policy of the State of Delaware.  Accordingly, the \nparties agree that the following procedures and presumptions shall apply in \nthe event of any question as to whether Indemnitee is entitled to \nindemnification under this Agreement:\n\n                (a)    To obtain indemnification (including, but not limited \nto, the advancement of Expenses and contribution by the Company) under this \nAgreement, Indemnitee shall submit to the Company a written request, \nincluding therein or therewith such documentation and information as is \nreasonably available to Indemnitee and is reasonably necessary to determine \nwhether and to what extent Indemnitee is entitled to indemnification.  The \nSecretary of the Company shall, promptly upon receipt of such a request for \nindemnification, advise the Board of Directors in writing that Indemnitee has \nrequested indemnification.\n\n                (b)    Upon written request by Indemnitee for indemnification \npursuant to the first sentence of Section 6(a) hereof, a determination, if \nrequired by applicable law, with respect to Indemnitee's entitlement thereto \nshall be made in the specific case by one of the following three methods, \nwhich shall be at the election of Indemnitee:  (1) by a majority vote of the \ndisinterested directors, even though less than a quorum, or (2) by \nindependent legal counsel in a written opinion, or (3) by the stockholders.\n\n                (c)    If the determination of entitlement to indemnification \nis to be made by Independent Counsel pursuant to Section 6(b) hereof, the \nIndependent Counsel shall be selected as provided in this Section 6(c).  The \nIndependent Counsel shall be selected by \n\n                                     4\n\n\nIndemnitee (unless Indemnitee shall request that such selection be made by \nthe Board of Directors).  Indemnitee or the Company, as the case may be, may, \nwithin 10 days after such written notice of selection shall have been given, \ndeliver to the Company or to Indemnitee, as the case may be, a written \nobjection to such selection; provided, however, that such objection may be \nasserted only on the ground that the Independent Counsel so selected does not \nmeet the requirements of 'Independent Counsel' as defined in Section 13 of \nthis Agreement, and the objection shall set forth with particularity the \nfactual basis of such assertion.  Absent a proper and timely objection, the \nperson so selected shall act as Independent Counsel.  If a written objection \nis made and substantiated, the Independent Counsel selected may not serve as \nIndependent Counsel unless and until such objection is withdrawn or a court \nhas determined that such objection is without merit.  If, within 20 days \nafter submission by Indemnitee of a written request for indemnification \npursuant to Section 6(a) hereof, no Independent Counsel shall have been \nselected and not objected to, either the Company or Indemnitee may petition \nthe Court of Chancery of the State of Delaware or other court of competent \njurisdiction for resolution of any objection which shall have been made by \nthe Company or Indemnitee to the other's selection of Independent Counsel \nand\/or for the appointment as Independent Counsel of a person selected by the \ncourt or by such other person as the court shall designate, and the person \nwith respect to whom all objections are so resolved or the person so \nappointed shall act as Independent Counsel under Section 6(b) hereof.  The \nCompany shall pay any and all reasonable fees and expenses of Independent \nCounsel incurred by such Independent Counsel in connection with acting \npursuant to Section 6(b) hereof, and the Company shall pay all reasonable \nfees and expenses incident to the procedures of this Section 6(c), regardless \nof the manner in which such Independent Counsel was selected or appointed.\n\n                (d)    In making a determination with respect to entitlement \nto indemnification hereunder, the person or persons or entity making such \ndetermination shall presume that Indemnitee is entitled to indemnification \nunder this Agreement if Indemnitee has submitted a request for \nindemnification in accordance with Section 6(a) of this Agreement.  Anyone \nseeking to overcome this presumption shall have the burden of proof and the \nburden of persuasion, by clear and convincing evidence.\n\n                (e)    Indemnitee shall be deemed to have acted in good faith \nif Indemnitee's action is based on the records or books of account of the \nEnterprise, including financial statements, or on information supplied to \nIndemnitee by the officers of the Enterprise in the course of their duties, \nor on the advice of legal counsel for the Enterprise or on information or \nrecords given or reports made to the Enterprise by an independent certified \npublic accountant or by an appraiser or other expert selected with reasonable \ncare by the Enterprise.  In addition, the knowledge and\/or actions, or \nfailure to act, of any director, officer, agent or employee of the Enterprise \nshall not be imputed to Indemnitee for purposes of determining the right to \nindemnification under this Agreement.  Whether or not the foregoing \nprovisions of this Section 6(e) are satisfied, it shall in any event be \npresumed that Indemnitee has at all times acted in good faith and in a manner \nhe reasonably believed to be in or not opposed to the best interests of the \nCompany.  Anyone seeking to overcome this presumption shall have the burden \nof proof and the burden of persuasion, by clear and convincing evidence.\n\n                                     5\n\n\n                (f)    If the person, persons or entity empowered or selected \nunder Section 6 to determine whether Indemnitee is entitled to \nindemnification shall not have made a determination within thirty (30) days \nafter receipt by the Company of the request therefor, the requisite \ndetermination of entitlement to indemnification shall be deemed to have been \nmade and Indemnitee shall be entitled to such indemnification, absent (i) a \nmisstatement by Indemnitee of a material fact, or an omission of a material \nfact necessary to make Indemnitee's statement not materially misleading, in \nconnection with the request for indemnification, or (ii) a prohibition of \nsuch indemnification under applicable law; provided, however, that such 30 \nday period may be extended for a reasonable time, not to exceed an additional \nfifteen (15) days, if the person, persons or entity making the determination \nwith respect to entitlement to indemnification in good faith requires such \nadditional time for the obtaining or evaluating documentation and\/or \ninformation relating thereto; and provided, further, that the foregoing \nprovisions of this Section 6(g) shall not apply if the determination of \nentitlement to indemnification is to be made by the stockholders pursuant to \nSection 6(b) of this Agreement and if (A) within fifteen (15) days after \nreceipt by the Company of the request for such determination the Board of \nDirectors or the Disinterested Directors, if appropriate, resolve to submit \nsuch determination to the stockholders for their consideration at an annual \nmeeting thereof to be held within seventy five (75) days after such receipt \nand such determination is made thereat, or (B) a special meeting of \nstockholders is called within fifteen (15) days after such receipt for the \npurpose of making such determination, such meeting is held for such purpose \nwithin sixty (60) days after having been so called and such determination is \nmade thereat.\n\n                (g)    Indemnitee shall cooperate with the person, persons or \nentity making such determination with respect to Indemnitee's entitlement to \nindemnification, including providing to such person, persons or entity upon \nreasonable advance request any documentation or information which is not \nprivileged or otherwise protected from disclosure and which is reasonably \navailable to Indemnitee and reasonably necessary to such determination.  Any \nIndependent Counsel, member of the Board of Directors, or stockholder of the \nCompany shall act reasonably and in good faith in making a determination \nunder the Agreement of the Indemnitee's entitlement to indemnification.  Any \ncosts or expenses (including attorneys' fees and disbursements) incurred by \nIndemnitee in so cooperating with the person, persons or entity making such \ndetermination shall be borne by the Company (irrespective of the \ndetermination as to Indemnitee's entitlement to indemnification) and the \nCompany hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n\n                (h)    The Company acknowledges that a settlement or other \ndisposition short of final judgment may be successful if it permits a party \nto avoid expense, delay, distraction, disruption and uncertainty.  In the \nevent that any action, claim or proceeding to which Indemnitee is a party is \nresolved in any manner other than by adverse judgment against Indemnitee \n(including, without limitation, settlement of such action, claim or \nproceeding with or without payment of money or other consideration) it shall \nbe presumed that Indemnitee has been successful on the merits or otherwise in \nsuch action, suit or proceeding.  Anyone seeking to overcome this presumption \nshall have the burden of proof and the burden of persuasion, by clear and \nconvincing evidence.\n\n                                     6\n\n\n          7.    REMEDIES OF INDEMNITEE.\n\n                (a)    In the event that (i) a determination is made pursuant \nto Section 6 of this Agreement that Indemnitee is not entitled to \nindemnification under this Agreement, (ii) advancement of Expenses is not \ntimely made pursuant to Section 5 of this Agreement, (iii) no determination \nof entitlement to indemnification shall have been made pursuant to Section \n6(b) of this Agreement within 90 days after receipt by the Company of the \nrequest for indemnification, (iv) payment of indemnification is not made \npursuant to this Agreement within ten (10) days after receipt by the Company \nof a written request therefor, or (v) payment of indemnification is not made \nwithin ten (10) days after a determination has been made that Indemnitee is \nentitled to indemnification or such determination is deemed to have been made \npursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an \nadjudication in an appropriate court of the State of Delaware, or in any \nother court of competent jurisdiction, of his entitlement to such \nindemnification.  Indemnitee shall commence such proceeding seeking an \nadjudication within 180 days following the date on which Indemnitee first has \nthe right to commence such proceeding pursuant to this Section 7(a).  The \nCompany shall not oppose Indemnitee's right to seek any such adjudication.\n\n                (b)    In the event that a determination shall have been made \npursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to \nindemnification, any judicial proceeding commenced pursuant to this Section 7 \nshall be conducted in all respects as a DE NOVO trial, on the merits and \nIndemnitee shall not be prejudiced by reason of that adverse determination \nunder Section 6(b).\n\n                (c)    If a determination shall have been made pursuant to \nSection 6(b) of this Agreement that Indemnitee is entitled to \nindemnification, the Company shall be bound by such determination in any \njudicial proceeding commenced pursuant to this Section 7, absent a \nprohibition of such indemnification under applicable law.\n\n                (d)    In the event that Indemnitee, pursuant to this Section \n7, seeks a judicial adjudication of his rights under, or to recover damages \nfor breach of, this Agreement, or to recover under any directors' and \nofficers' liability insurance policies maintained by the Company the Company \nshall pay on his behalf, in advance, any and all expenses (of the types \ndescribed in the definition of Expenses in Section 13 of this Agreement) \nactually and reasonably incurred by him in such judicial adjudication, \nregardless of whether Indemnitee ultimately is determined to be entitled to \nsuch indemnification, advancement of expenses or insurance recovery.\n\n                (e)    The Company shall be precluded from asserting in any \njudicial proceeding commenced pursuant to this Section 7 that the procedures \nand presumptions of this Agreement are not valid, binding and enforceable and \nshall stipulate in any such court that the Company is bound by all the \nprovisions of this Agreement.\n\n                                     7\n\n\n          8.    NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.\n\n                (a)    The rights of indemnification as provided by this \nAgreement shall not be deemed exclusive of any other rights to which \nIndemnitee may at any time be entitled under applicable law, the certificate \nof incorporation of the Company, the Bylaws, any agreement, a vote of \nstockholders or a resolution of directors, or otherwise.  No amendment, \nalteration or repeal of this Agreement or of any provision hereof shall limit \nor restrict any right of Indemnitee under this Agreement in respect of any \naction taken or omitted by such Indemnitee in his Corporate Status prior to \nsuch amendment, alteration or repeal.  To the extent that a change in the \nLaw, whether by statute or judicial decision, permits greater indemnification \nthan would be afforded currently under the Bylaws and this Agreement, it is \nthe intent of the parties hereto that Indemnitee shall enjoy by this \nAgreement the greater benefits so afforded by such change.  No right or \nremedy herein conferred is intended to be exclusive of any other right or \nremedy, and every other right and remedy shall be cumulative and in addition \nto every other right and remedy given hereunder or now or hereafter existing \nat law or in equity or otherwise.  The assertion or employment of any right \nor remedy hereunder, or otherwise, shall not prevent the concurrent assertion \nor employment of any other right or remedy.\n\n                (b)    To the extent that the Company maintains an insurance \npolicy or policies providing liability insurance for directors, officers, \nemployees, or agents or fiduciaries of the Company or of any other \ncorporation, partnership, joint venture, trust, employee benefit plan or \nother enterprise which such person serves at the request of the Company, \nIndemnitee shall be covered by such policy or policies in accordance with its \nor their terms to the maximum extent of the coverage available for any such \ndirector, officer, employee or agent under such policy or policies.\n\n                (c)    In the event of any payment under this Agreement, the \nCompany shall be subrogated to the extent of such payment to all of the \nrights of recovery of Indemnitee, who shall execute all papers required and \ntake all action necessary to secure such rights, including execution of such \ndocuments as are necessary to enable the Company to bring suit to enforce \nsuch rights.\n\n                (d)    The Company shall not be liable under this Agreement \nto make any payment of amounts otherwise indemnifiable hereunder if and to \nthe extent that Indemnitee has otherwise actually received such payment under \nany insurance policy, contract, agreement or otherwise.\n\n          9.    EXCEPTION TO RIGHT OF INDEMNIFICATION.  Notwithstanding any \nother provision of this Agreement, Indemnitee shall not be entitled to \nindemnification under this Agreement with respect to any Proceeding brought \nby Indemnitee, or any claim therein, unless (a) the bringing of such \nProceeding or making of such claim shall have been approved by the Board of \nDirectors of the Company or (b) such Proceeding is being brought by the \nIndemnitee to assert, interpret or enforce his rights under this Agreement.\n\n          10.   DURATION OF AGREEMENT.  All agreements and obligations of the \nCompany contained herein shall continue during the period Indemnitee is an \nofficer or director of the \n\n                                     8\n\n\nCompany (or is or was serving at the request of the Company as a director, \nofficer, employee or agent of another corporation, partnership, joint \nventure, trust or other enterprise) and shall continue thereafter so long as \nIndemnitee shall be subject to any Proceeding (or any proceeding commenced \nunder Section 7 hereof) by reason of his Corporate Status, whether or not he \nis acting or serving in any such capacity at the time any liability or \nexpense is incurred for which indemnification can be provided under this \nAgreement.  This Agreement shall be binding upon and inure to the benefit of \nand be enforceable by the parties hereto and their respective successors \n(including any direct or indirect successor by purchase, merger, \nconsolidation or otherwise to all or substantially all of the business or \nassets of the Company), assigns, spouses, heirs, executors and personal and \nlegal representatives.  This Agreement shall continue in effect regardless of \nwhether Indemnitee continues to serve as an officer or director of the \nCompany or any other Enterprise at the Company's request.\n\n          11.   SECURITY.  To the extent requested by the Indemnitee and \napproved by the Board of Directors of the Company, the Company may at any \ntime and from time to time provide security to the Indemnitee for the \nCompany's obligations hereunder through an irrevocable bank line of credit, \nfunded trust or other collateral.  Any such security, once provided to the \nIndemnitee, may not be revoked or released without the prior written consent \nof the Indemnitee.\n\n          12.   ENFORCEMENT.\n\n                (a)    The Company expressly confirms and agrees that it has \nentered into this Agreement and assumed the obligations imposed on it hereby \nin order to induce Indemnitee to serve as an officer or director of the \nCompany, and the Company acknowledges that Indemnitee is relying upon this \nAgreement in serving as an officer or director of the Company.\n\n                (b)    This Agreement constitutes the entire agreement \nbetween the parties hereto with respect to the subject matter hereof and \nsupersedes all prior agreements and understandings, oral, written and \nimplied, between the parties hereto with respect to the subject matter hereof.\n\n          13.   DEFINITIONS.  For purposes of this Agreement:\n\n                (a)    'Corporate Status' describes the status of a person \nwho is or was a director, officer, employee or agent or fiduciary of the \nCompany or of any other corporation, partnership, joint venture, trust, \nemployee benefit plan or other enterprise which such person is or was serving \nat the express written request of the Company.\n\n                (b)    'Disinterested Director' means a director of the \nCompany who is not and was not a party to the Proceeding in respect of which \nindemnification is sought by Indemnitee.\n\n                (c)    'Enterprise' shall mean the Company and any other \ncorporation, partnership, joint venture, trust, employee benefit plan or \nother enterprise of which Indemnitee is \n\n                                     9\n\n\nor was serving at the express written request of the Company as a director, \nofficer, employee, agent or fiduciary.\n\n                (d)    'Expenses' shall include all reasonable attorneys' \nfees, retainers, court costs, transcript costs, fees of experts, witness \nfees, travel expenses, duplicating costs, printing and binding costs, \ntelephone charges, postage, delivery service fees, and all other \ndisbursements or expenses of the types customarily incurred in connection \nwith prosecuting, defending, preparing to prosecute or defend, investigating, \nparticipating, or being or preparing to be a witness in a Proceeding.\n\n                (e)    'Independent Counsel' means a law firm, or a member of \na law firm, that is experienced in matters of corporation law and neither \npresently is, nor in the past five years has been, retained to represent:  \n(i) the Company or Indemnitee in any matter material to either such party \n(other than with respect to matters concerning the Indemnitee under this \nAgreement, or of other indemnitees under similar indemnification agreements), \nor (ii) any other party to the Proceeding giving rise to a claim for \nindemnification hereunder.  Notwithstanding the foregoing, the term \n'Independent Counsel' shall not include any person who, under the applicable \nstandards of professional conduct then prevailing, would have a conflict of \ninterest in representing either the Company or Indemnitee in an action to \ndetermine Indemnitee's rights under this Agreement.  The Company agrees to \npay the reasonable fees of the Independent Counsel referred to above and to \nfully indemnify such counsel against any and all Expenses, claims, \nliabilities and damages arising out of or relating to this Agreement or its \nengagement pursuant hereto.\n\n                (f)    'Proceeding' includes any threatened, pending or \ncompleted action, suit, arbitration, alternate dispute resolution mechanism, \ninvestigation, inquiry, administrative hearing or any other actual, \nthreatened or completed proceeding, whether brought by or in the right of the \nCompany or otherwise and whether civil, criminal, administrative or \ninvestigative, in which Indemnitee was, is or will be involved as a party or \notherwise, by reason of the fact that Indemnitee is or was a director of the \nCompany, by reason of any action taken by him or of any inaction on his part \nwhile acting as an officer or director of the Company, or by reason of the \nfact that he is or was serving at the request of the Company as a director, \nofficer, employee or agent of another corporation, partnership, joint \nventure, trust or other Enterprise; in each case whether or not he is acting \nor serving in any such capacity at the time any liability or expense is \nincurred for which indemnification can be provided under this Agreement; \nincluding one pending on or before the date of this Agreement; and excluding \none initiated by an Indemnitee pursuant to Section 7 of this Agreement to \nenforce his rights under this Agreement.\n\n          14.   SEVERABILITY.  If any provision or provisions of this \nAgreement shall be held by a court of competent jurisdiction to be invalid, \nvoid, illegal or otherwise unenforceable for any reason whatsoever:  (a) the \nvalidity, legality and enforceability of the remaining provisions of this \nAgreement (including without limitation, each portion of any section of this \nAgreement containing any such provision held to be invalid, illegal or \nunenforceable, that is not itself invalid, illegal or unenforceable) shall \nnot in any way be affected or impaired thereby and shall remain enforceable \nto the fullest extent permitted by law; and (b) to the fullest extent \n\n                                     10\n\n\npossible, the provisions of this Agreement (including, without limitation, \neach portion of any section of this Agreement containing any such provision \nheld to be invalid, illegal or unenforceable, that is not itself invalid, \nillegal or unenforceable) shall be construed so as to give effect to the \nintent manifested thereby.\n\n          15.   MODIFICATION AND WAIVER.  No supplement, modification, \ntermination or amendment of this Agreement shall be binding unless executed \nin writing by both of the parties hereto.  No waiver of any of the provisions \nof this Agreement shall be deemed or shall constitute a waiver of any other \nprovisions hereof (whether or not similar) nor shall such waiver constitute a \ncontinuing waiver.\n\n          16.   NOTICE BY INDEMNITEE.  Indemnitee agrees promptly to notify \nthe Company in writing upon being served with any summons, citation, \nsubpoena, complaint, indictment, information or other document relating to \nany Proceeding or matter which may be subject to indemnification covered \nhereunder.  The failure to so notify the Company shall not relieve the \nCompany of any obligation which it may have to the Indemnitee under this \nAgreement or otherwise unless and only to the extent that such failure or \ndelay materially prejudices the Company.\n\n          17.   NOTICES.  All notices, requests, demands and other \ncommunications hereunder shall be in writing and shall be deemed to have been \nduly given if (i) delivered by hand and receipted for by the party to whom \nsaid notice or other communication shall have been directed, or (ii) mailed \nby certified or registered mail with postage prepaid, on the third business \nday after the date on which it is so mailed:\n\n                (a)    If to Indemnitee, to the address set forth below \nIndemnitee signature hereto.\n\n                (b)    If to the Company, to:\n\n                       1000 Bridge Parkway \n                       Redwood Shores, CA 94065\n                       Attention: General Counsel\n\nor to such other address as may have been furnished to Indemnitee by the \nCompany or to the Company by Indemnitee, as the case may be.\n\n          18.   IDENTICAL COUNTERPARTS.  This Agreement may be executed in \none or more counterparts, each of which shall for all purposes be deemed to \nbe an original but all of which together shall constitute one and the same \nAgreement. Only one such counterpart signed by the party against whom \nenforceability is sought needs to be produced to evidence the existence of \nthis Agreement. \n\n          19.   HEADINGS.  The headings of the paragraphs of this Agreement \nare inserted for convenience only and shall not be deemed to constitute part \nof this Agreement or to affect the construction thereof.\n\n                                    11\n\n\n          20.   GOVERNING LAW.  The parties agree that this Agreement shall \nbe governed by, and construed and enforced in accordance with, the laws of \nthe State of Delaware without application of the conflict of laws principles \nthereof.\n\n          21.   GENDER.  Use of the masculine pronoun shall be deemed to \ninclude usage of the feminine pronoun where appropriate.\n\n\n                                     12\n\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\n                                   LIBERATE TECHNOLOGIES\n\n\n                                   By:\n                                      -----------------------------------\n                                        Name:\n                                             ----------------------------\n                                        Title:\n                                              ---------------------------\n\n\n                                   --------------------------------------\n                                   Name:\n                                        ---------------------------------\n\n                       Address:\n                                   --------------------------------------\n                                   --------------------------------------\n                                   --------------------------------------\n                                   --------------------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9557],"class_list":["post-40814","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","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\/40814","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=40814"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40814"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40814"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40814"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}