{"id":40824,"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-sagent-technology-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-sagent-technology-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-sagent-technology-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Sagent Technology Inc."},"content":{"rendered":"<pre>                             SAGENT TECHNOLOGY, INC.\n\n                            INDEMNIFICATION AGREEMENT\n\n\n        THIS INDEMNIFICATION AGREEMENT (\"Agreement\") is made as of this day,\nNovember 30, 1995, by and between Sagent Technology, Inc., a California\ncorporation (the \"Company\"), and Name (\"Indemnitee\").\n\n        WHEREAS, the Company and Indemnitee recognize the increasing difficulty\nin obtaining directors' and officers' liability insurance, the significant\nincreases in the cost of such insurance and the general reductions in the\ncoverage of such insurance;\n\n        WHEREAS, the Company and Indemnitee further recognize the substantial\nincrease in corporate litigation in general, subjecting officers and directors\nto expensive litigation risks at the same time as the availability and coverage\nof liability insurance has been severely limited;\n\n        WHEREAS, Indemnitee does not regard the current protection available as\nadequate under the present circumstances, and Indemnitee and other officers and\ndirectors of the Company may not be willing to continue to serve as officers and\ndirectors without additional protection; and\n\n        WHEREAS, the Company desires to attract and retain the services of\nhighly qualified individuals, such as Indemnitee, to serve as officers and\ndirectors of the Company and to indemnify its officers and directors so as to\nprovide them with the maximum protection permitted by law.\n\n        NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:\n\n        1.     INDEMNIFICATION.\n\n               (a) Third Party Proceedings. The Company shall indemnify\nIndemnitee if Indemnitee is or was a party or is threatened to be made a party\nto any threatened, pending or completed action or proceeding, whether civil,\ncriminal, administrative or investigative (other than an action by or in the\nright of the Company) by reason of the fact that Indemnitee is or was a\ndirector, officer, employee or agent of the Company, or any subsidiary of the\nCompany, by reason of any action or inaction on the part of Indemnitee while an\nofficer or director or by reason of the fact that Indemnitee is or was serving\nat the request of the Company as a director, officer, employee or agent of\nanother corporation, partnership, joint venture, trust or other enterprise,\nagainst expenses (including attorneys' fees), judgments, fines and amounts paid\nin settlement (if such settlement is approved in advance by the Company, which\napproval shall not be unreasonably withheld) actually and reasonably incurred by\nIndemnitee in connection with such action or proceeding if Indemnitee acted in\ngood faith and in a manner Indemnitee reasonably believed to be in the best\ninterests of the Company, and, with respect to any criminal action or pro\nceeding, had no reasonable cause to believe Indemnitee's conduct was unlawful.\nThe termination of any action or proceeding by judgment, order, settlement,\nconviction, or upon a plea of nolo contendere or its equivalent, shall not, of\nitself, create a presumption that (i) Indemnitee did not act in good faith and\nin a manner which Indemnitee reasonably believed to be in the best interests of\nthe Company, or (ii) with\n\n\n\nrespect to any criminal action or proceeding, Indemnitee had reasonable cause to\nbelieve that Indemnitee's conduct was unlawful.\n\n               (b) Proceedings By or in the Right of the Company. The Company\nshall indemnify Indemnitee if Indemnitee was or is a party or is threatened to\nbe made a party to any threatened, pending or completed action or proceeding by\nor in the right of the Company or any subsidiary of the Company to procure a\njudgment in its favor by reason of the fact that Indemnitee is or was a\ndirector, officer, employee or agent of the Company, or any subsidiary of the\nCompany, by reason of any action or inaction on the part of Indemnitee while an\nofficer or director or by reason of the fact that Indemnitee is or was serving\nat the request of the Company as a director, officer, employee or agent of\nanother corporation, partnership, joint venture, trust or other enterprise,\nagainst expenses (including attorneys' fees) and, to the fullest extent\npermitted by law, amounts paid in settlement, in each case to the extent\nactually and reasonably incurred by Indemnitee in connection with the defense or\nsettlement of such action or proceeding if Indemnitee acted in good faith and in\na manner Indemnitee reasonably believed to be in the best interests of the\nCompany and its shareholders, except that no indemnification shall be made in\nrespect of any claim, issue or matter as to which Indemnitee shall have been\nadjudged to be liable to the Company in the performance of Indemnitee's duty to\nthe Company and its shareholders unless and only to the extent that the court in\nwhich such action or proceeding is or was pending shall determine upon\napplication that, in view of all the circumstances of the case, Indemnitee is\nfairly and reasonably entitled to indemnity for expenses and then only to the\nextent that the court shall determine.\n\n        2.     EXPENSES; INDEMNIFICATION PROCEDURE.\n\n               (a) Advancement of Expenses. The Company shall advance all\nexpenses incurred by Indemnitee in connection with the investigation, defense,\nsettlement or appeal of any civil or criminal action or proceeding referenced in\nSection 1(a) or (b) hereof (but not amounts actually paid in settlement of any\nsuch action or proceeding). Indemnitee hereby undertakes to repay such amounts\nadvanced only if, and to the extent that, it shall ultimately be determined that\nIndemnitee is not entitled to be indemni fied by the Company as authorized\nhereby. The advances to be made hereunder shall be paid by the Company to\nIndemnitee within twenty (20) days following delivery of a written request\ntherefor by Indemnitee to the Company.\n\n               (b) Notice\/Cooperation by Indemnitee. Indemnitee shall, as a\ncondition precedent to his right to be indemnified under this Agreement, give\nthe Company notice in writing as soon as practicable of any claim made against\nIndemnitee for which indemnification will or could be sought under this\nAgreement. Notice to the Company shall be directed to the Chief Executive\nOfficer of the Company at the address shown on the signature page of this\nAgreement (or such other address as the Company shall designate in writing to\nIndemnitee). Notice shall be deemed received three business days after the date\npostmarked if sent by domestic certified or registered mail, properly addressed;\notherwise notice shall be deemed received when such notice shall actually be\nreceived by the Company. In addition, Indemnitee shall give the Company such\ninformation and cooperation as it may reasonably require and as shall be within\nIndemnitee's power.\n\n\n                                      -2-\n\n\n               (c) Procedure. Any indemnification provided for in Section 1\nshall be made no later than forty-five (45) days after receipt of the written\nrequest of Indemnitee. If a claim under this Agreement, under any statute, or\nunder any provision of the Company's Articles of Incorporation or Bylaws\nproviding for indemnification, is not paid in full by the Company within\nforty-five (45) days after a written request for payment thereof has first been\nreceived by the Company, Indemnitee may, but need not, at any time thereafter\nbring an action against the Company to recover the unpaid amount of the claim\nand, subject to Section 13 of this Agreement, Indemnitee shall also be entitled\nto be paid for the expenses (including attorneys' fees) of bringing such action.\nIt shall be a defense to any such action (other than an action brought to\nenforce a claim for expenses incurred in connection with any action or\nproceeding in advance of its final disposition) that Indemnitee has not met the\nstandards of conduct which make it permissible under applicable law for the\nCompany to indemnify Indemnitee for the amount claimed, but Indemnitee shall be\nentitled to receive interim payments of expenses pursuant to Subsection 2(a)\nunless and until such defense may be finally adjudicated by court order or\njudgment from which no further right of appeal exists. It is the parties'\nintention that if the Company contests Indemnitee's right to indemnification,\nthe question of Indemnitee's right to indemnification shall be for the court to\ndecide, and neither the failure of the Company (including its Board of\nDirectors, any committee or subgroup of the Board of Directors, independent\nlegal counsel, or its shareholders) to have made a determination that\nindemnification of Indemnitee is proper in the circumstances because Indemnitee\nhas met the applicable standard of conduct required by applicable law, nor an\nactual deter mination by the Company (including its Board of Directors, any\ncommittee or subgroup of the Board of Directors, independent legal counsel, or\nits shareholders) that Indemnitee has not met such applicable standard of\nconduct, shall create a presumption that Indemnitee has or has not met the\napplicable standard of conduct.\n\n               (d) Notice to Insurers. If, at the time of the receipt of a\nnotice of a claim pursuant to Section 2(b) hereof, the Company has director and\nofficer liability insurance in effect, the Company shall give prompt notice of\nthe commencement of such proceeding to the insurers in accordance with the\nprocedures set forth in the respective policies. The Company shall thereafter\ntake all necessary or desirable action to cause such insurers to pay, on behalf\nof the Indemnitee, all amounts payable as a result of such proceeding in\naccordance with the terms of such policies.\n\n               (e) Selection of Counsel. In the event the Company shall be\nobligated under Section 2(a) hereof to pay the expenses of any proceeding\nagainst Indemnitee, the Company, if appropriate, shall be entitled to assume the\ndefense of such proceeding, with counsel approved by Indem nitee, which approval\nshall not be unreasonably withheld, upon the delivery to Indemnitee of written\nnotice of its election so to do. After delivery of such notice, approval of such\ncounsel by Indemnitee and the retention of such counsel by the Company, the\nCompany will not be liable to Indemnitee under this Agreement for any fees of\ncounsel subsequently incurred by Indemnitee with respect to the same pro\nceeding, provided that (i) Indemnitee shall have the right to employ his counsel\nin any such proceeding at Indemnitee's expense; and (ii) if (A) the employment\nof counsel by Indemnitee has been previously authorized by the Company, (B)\nIndemnitee shall have reasonably concluded that there may be a conflict of\ninterest between the Company and Indemnitee in the conduct of any such defense\nor (C) the Company shall not, in fact, have employed counsel to assume the\ndefense of such proceeding, then the fees and expenses of Indemnitee's counsel\nshall be at the expense of the Company.\n\n\n                                      -3-\n\n\n        3.     ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.\n\n               (a) Scope. Notwithstanding any other provision of this Agreement,\nthe Company hereby agrees to indemnify the Indemnitee to the fullest extent\npermitted by law, notwithstanding that such indemnification is not specifically\nauthorized by the other provisions of this Agreement, the Company's Articles of\nIncorporation, the Company's By-laws or by statute. In the event of any change,\nafter the date of this Agreement, in any applicable law, statute or rule which\nexpands the right of a California corporation to indemnify a member of its board\nof directors or an officer, such changes shall be, ipso facto, within the\npurview of Indemnitee's rights and Company's obligations, under this Agreement.\nIn the event of any change in any applicable law, statute or rule which narrows\nthe right of a California corporation to indemnify a member of its Board of\nDirectors or an officer, such changes, to the extent not otherwise required by\nsuch law, statute or rule to be applied to this Agreement shall have no effect\non this Agreement or the parties' rights and obligations hereunder.\n\n               (b) Nonexclusivity. The indemnification provided by this\nAgreement shall not be deemed exclusive of any rights to which Indemnitee may be\nentitled under the Company's Articles of Incorporation, its By-laws, any\nagreement, any vote of shareholders or disinterested directors, the California\nGeneral Corporation Law, or otherwise, both as to action in Indemnitee's\nofficial capacity and as to action in another capacity while holding such\noffice. The indemnification provided under this Agreement shall continue as to\nIndemnitee for any action taken or not taken while serving in an indemnified\ncapacity even though he may have ceased to serve in such capacity at the time of\nany action or other covered proceeding.\n\n        4. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any\nprovision of this Agreement to indemnification by the Company for some or a\nportion of the expenses, judgments, fines or penalties actually or reasonably\nincurred by him in the investigation, defense, appeal or settlement of any civil\nor criminal action or proceeding, but not, however, for the total amount\nthereof, the Company shall nevertheless indemnify Indemnitee for the portion of\nsuch expenses, judgments, fines or penalties to which Indemnitee is entitled.\n\n        5. 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 and officers under this Agreement or\notherwise. Indemnitee understands and acknowledges that the Company has\nundertaken or may be required in the future to undertake with the Securities and\nExchange Commission to submit the question of indemnification to a court in\ncertain circumstances for a determination of the Company's right under public\npolicy to indemnify Indemnitee.\n\n        6. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. The Company shall, from\ntime to time, make the good faith determination whether or not it is practicable\nfor the Company to obtain and main tain a policy or policies of insurance with\nreputable insurance companies providing the officers and directors of the\nCompany with coverage for losses from wrongful acts, or to ensure the Company's\nperformance of its indemnification obligations under this Agreement. Among other\nconsiderations, the Company will weigh the costs of obtaining such insurance\ncoverage against the protection afforded by such coverage. In all policies of\ndirectors' and officers' liability insurance, Indemnitee shall be named\n\n\n                                      -4-\n\n\nas an insured in such a manner as to provide Indemnitee the same rights and\nbenefits as are accorded to the most favorably insured of the Company's\ndirectors, if Indemnitee is a director; or of the Company's officers, if\nIndemnitee is not a director of the Company but is an officer; or of the\nCompany's key employees, if Indemnitee is not an officer or director but is a\nkey employee. Notwithstanding the foregoing, the Company shall have no\nobligation to obtain or maintain such insurance if the Company determines in\ngood faith that such insurance is not reasonably available, if the premium costs\nfor such insurance are disproportionate to the amount of coverage provided, if\nthe coverage provided by such insurance is limited by exclusions so as to\nprovide an insufficient benefit, or if Indemnitee is covered by similar\ninsurance maintained by a subsidiary or parent of the Company.\n\n        7. SEVERABILITY. Nothing in this Agreement is intended to require or\nshall be construed as requiring the Company to do or fail to do any act in\nviolation of applicable law. The Company's inability, pursuant to court order,\nto perform its obligations under this Agreement shall not constitute a breach of\nthis Agreement. The provisions of this Agreement shall be severable as provided\nin this Section 7. If this Agreement or any portion hereof shall be invalidated\non any ground by any court of competent jurisdiction, then the Company shall\nnevertheless indemnify Indemnitee to the full extent permitted by any applicable\nportion of this Agreement that shall not have been invalidated, and the balance\nof this Agreement not so invalidated shall be enforceable in accordance with its\nterms.\n\n        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               (a) Excluded Acts. To indemnify Indemnitee for any acts or\nomissions or transactions from which a director may not be relieved of liability\nunder the California General Corporation Law.\n\n               (b) Claims Initiated by Indemnitee. To indemnify or advance\nexpenses to Indemnitee with respect to proceedings or claims initiated or\nbrought voluntarily by Indemnitee and not by way of defense, except with respect\nto proceedings brought to establish or enforce a right to indemnification under\nthis Agreement or any other statute or law or otherwise as required under\nSection 317 of the California General Corporation Law, but such indemnification\nor advancement of expenses may be provided by the Company in specific cases if\nthe Board of Directors has approved the initiation or bringing of such suit; or\n\n               (c) Lack of Good Faith. To indemnify Indemnitee for any expenses\nincurred by the Indemnitee with respect to any proceeding instituted by\nIndemnitee to enforce or interpret this Agreement, if a court of competent\njurisdiction determines that each of the material assertions made by the\nIndemnitee in such proceeding was not made in good faith or was frivolous; or\n\n               (d) Insured Claims. To indemnify Indemnitee for expenses or\nliabilities of any type whatsoever (including, but not limited to, judgments,\nfines, ERISA excise taxes or penalties, and amounts paid in settlement) which\nhave been paid directly to Indemnitee by an insurance carrier under a policy of\ndirectors' and officers' liability insurance maintained by the Company; or\n\n\n                                      -5-\n\n\n               (e) Claims Under Section 16(b). To indemnify Indemnitee for\nexpenses and the payment of profits arising from the purchase and sale by\nIndemnitee of securities in violation of Section 16(b) of the Securities\nExchange Act of 1934, as amended, or any similar successor statute.\n\n        9. EFFECTIVENESS OF AGREEMENT. To the extent that the indemnification\npermitted under the terms of certain provisions of this Agreement exceeds the\nscope of the indemnification provided for in the California General Corporation\nLaw, such provisions shall not be effective unless and until the Company's\nArticles of Incorporation authorize such additional rights of indemnification.\nIn all other respects, the balance of this Agreement shall be effective as of\nthe date set forth on the first page and may apply to acts or omissions of\nIndemnitee which occurred prior to such date if Indemnitee was an officer,\ndirector, employee or other agent of the Company, or was serving at the request\nof the Company as a director, officer, employee or agent of another corporation,\npartnership, joint venture, trust or other enterprise, at the time such act or\nomission occurred.\n\n        10.    CONSTRUCTION OF CERTAIN PHRASES.\n\n               (a) For purposes of this Agreement, references to the \"Company\"\nshall include, in addition to the resulting corporation, any constituent\ncorporation (including any constituent of a con stituent) 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 or\nagents, so that if Indemnitee is or was a director, officer, employee or agent\nof such constituent corporation, or is or was serving at the request of such\nconstituent corporation as a director, officer, employee or agent of another\ncorporation, partnership, joint venture, trust or other enterprise, Indemnitee\nshall stand in the same position under the provisions of this Agreement with\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\nenterprises\" shall include employee benefit plans; references to \"fines\" shall\ninclude any excise taxes assessed on Indemnitee with respect to an employee\nbenefit plan; and references to \"serving at the request of the Company\" shall\ninclude any service as a director, officer, employee or agent of the Company\nwhich imposes duties on, or involves services by, such director, officer,\nemployee or agent with respect to an employee benefit plan, its participants, or\nbeneficiaries.\n\n        11. COUNTERPARTS. This Agreement may be executed in one or more\ncounterparts, each of which shall constitute an original.\n\n        12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the\nCompany and its successors and assigns, and shall inure to the benefit of\nIndemnitee and Indemnitee's estate, heirs, legal representatives and assigns.\n\n\n                                      -6-\n\n\n        13. ATTORNEYS' FEES. In the event that any action is instituted by\nIndemnitee under this Agreement to enforce or interpret any of the terms hereof,\nIndemnitee shall be entitled to be paid all court costs and expenses, including\nreasonable attorneys' fees, incurred by Indemnitee with respect to such action,\nunless as a part of such action, the court of competent jurisdiction determines\nthat each of the material assertions made by Indemnitee as a basis for such\naction were not made in good faith or were frivolous. In the event of an action\ninstituted by or in the name of the Company under this Agreement or to enforce\nor interpret any of the terms of this Agreement, Indemnitee shall be entitled to\nbe paid all court costs and expenses, including attorneys' fees, incurred by\nIndemnitee in defense of such action (including with respect to Indemnitee's\ncounterclaims and cross-claims made in such action), unless as a part of such\naction the court determines that each of Indemnitee's material defenses to such\naction were made in bad faith or were frivolous.\n\n        14. NOTICE. All notices, requests, demands and other communications\nunder this Agreement shall be in writing and shall be deemed duly given (i) if\ndelivered by hand and receipted for by the party addressee, on the date of such\nreceipt, or (ii) if mailed by domestic certified or registered mail with postage\nprepaid, on the third business day after the date postmarked. Addresses for\nnotice to either party are as shown on the signature page of this Agreement, or\nas subsequently modified by written notice.\n\n        15. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby\nirrevocably consent to the jurisdiction of the courts of the State of California\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 brought only in the state courts of the State of California.\n\n        16. CHOICE OF LAW. This Agreement shall be governed by and its\nprovisions construed in accordance with the laws of the State of California as\napplied to contracts between California residents entered into and to be\nperformed entirely within California.\n\n\n                                      -7-\n\n\n        IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date first above written.\n\n\n                                       SAGENT TECHNOLOGY, INC.\n\n\n                                       By:\n                                          --------------------------------------\n\n                                       Title:\n                                             -----------------------------------\n\n\n                                       750 Menlo Avenue, Suite 300\n                                       Menlo Park, CA  94025\n\n\n\nAGREED TO AND ACCEPTED:\n\nINDEMNITEE:\n\nFIELD(Name)\n\n\n\n----------------------------------------\n(signature)\n\n\n----------------------------------------\n(address)\n\n\n                                      -8-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8746],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9557],"class_list":["post-40824","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sagent-technology-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\/40824","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=40824"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40824"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40824"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40824"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}