1
EXHIBIT 2.10
MICRO FOCUS INCORPORATED
INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement") is entered into as of
________ ___, 1997 between Micro Focus Incorporated, a California corporation
(the "Company"), and ______ ______________ ("Indemnitee").
WHEREAS, the Company is a wholly-owned subsidiary of Micro Focus Group
plc, a corporation organized under the laws of England and Wales ("Parent"),
and Indemnitee is a director, officer and/or other agent of Parent and/or the
Company;
WHEREAS, the Company and Parent are aware that competent and
experienced persons are increasingly reluctant to serve as agents of
corporations unless they are protected by comprehensive liability insurance
and/or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the
exposure frequently bears no reasonable relationship to the compensation of such
agents;
WHEREAS, based upon their experience as business managers, the Board
of Directors of each of Parent and the Company have concluded that, to retain
and attract talented and experienced individuals to serve as agents of the
Company, Parent and/or their subsidiaries and to encourage such individuals to
take the business risks necessary for the success of the Company, Parent and/or
their subsidiaries, it is necessary for Parent and the Company to contractually
indemnify such agents, and to assume for themselves maximum liability for
expenses and damages in connection with claims against such agents in
connection with their service to Parent and/or the Company. Parent has entered
into separate indemnification agreements with agents of Parent and the Company
and by this Agreement the Company seeks to provide similar contractual
protection for certain agents of the Company, and the Board of Directors of the
Company (the "Board") has determined that adequate consideration and direct and
indirect benefit to the Company exists for the indemnification obligations
created hereby;
WHEREAS, the Company desires to provide for the indemnification of,
and the advancing of expenses to, Indemnitee to the fullest extent permitted by
law, subject to the limited exceptions set forth in this Agreement;
NOW, THEREFORE, in consideration of the above premises and the
promises set forth herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
capitalized terms listed below shall have the meanings ascribed to them as
follows:
1.1 Board. The Board of Directors of the Company.
1.2 Expenses. Any expense, liability, or loss, including
attorneys' fees, judgments, fines, excise taxes and penalties assessed with
respect to an employee benefit plan,
2
amounts paid or to be paid in settlement, any interest, assessments or other
charges imposed thereon, and any federal, state, local or foreign taxes imposed
as a result of the actual or deemed receipt of any payments under this
Agreement, paid or incurred in connection with investigating, defending, being
a witness in, participating in (including on appeal) or preparing for any of
the foregoing, in any Proceeding relating to any Indemnifiable Event.
1.3 Indemnifiable Event. Any event or occurrence that
takes place either prior to or after the execution of this Agreement, related
to the fact that Indemnitee:
(a) is or was a director, officer or other agent
of the Company, Parent or a subsidiary; or
(b) while a director, officer or other agent of
the Company, Parent or a subsidiary, is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of
another foreign or domestic corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise; or
(c) was a director, officer or other agent of a
foreign or domestic corporation that was a predecessor corporation of the
Company, Parent or a subsidiary or was a director, officer, employee, trustee,
agent, or fiduciary of another enterprise at the request of such predecessor
corporation; and
related to anything done or not done by Indemnitee in any such capacity,
whether or not the basis of the Proceeding is alleged action in an official
capacity while serving as described in clauses (a) through (c) above.
1.4 Proceeding. Any threatened, pending or completed
action, suit or proceeding, or any inquiry, hearing or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise.
1.5 Subsidiary. For purposes of this Agreement,
"subsidiary" means any corporation of which more than 50% of the outstanding
voting securities is owned directly or indirectly by the Company, by the
Company and one or more of its subsidiaries, or by one or more of the Company's
subsidiaries.
2. Directors' and Officers' Insurance. The Company shall, from
time to time, make the good faith determination whether or not it is
practicable for the Company, Parent or a subsidiary to obtain and a policy or
policies of directors' and officers' liability insurance ("D&O Insurance") with
reputable insurance companies providing Indemnitee with coverage for losses
from wrongful acts, or to ensure the Company's performance of its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of D&O Insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded other similarly
situated agents. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such D&O Insurance if the Company determines
in good faith that such insurance is not reasonably available, if the premium
costs for such insurance are disproportionate to the amount of coverage
2
3
provided, if the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit, or if Indemnitee is covered by
similar insurance maintained by Parent or a subsidiary.
3. Agreement to Indemnify. In the event Indemnitee was, is or
becomes a party to, or witness or other participant in, or is threatened to be
made a party to, or witness or other participant in, a Proceeding by reason of
(or arising in part out of) and Indemnifiable Event, the Company shall indemnify
Indemnitee from and against any and all Expenses to the fullest extent permitted
by law, as the same exists or may hereafter be amended or interpreted (but in
the case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto). The rights to receive
indemnification and the advancement of Expenses under this Agreement are not
exclusive of any other rights which Indemnitee may be entitled or subsequently
entitled under any statute, the Company's Articles of Incorporation or Bylaws,
by vote of the shareholders or the Board, or otherwise. To the extent that a
change in applicable law (whether by statute or judicial decision) or the
Company's Articles of Incorporation or Bylaws permits greater indemnification
than is currently provided for an Indemnifiable Event, Indemnitee shall be
entitled to such greater indemnification under this Agreement.
3.1 Partial Indemnification. If Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such Expenses to
which Indemnitee is entitled.
3.2 Contribution. If the Indemnitee is not entitled to
the indemnification provided in this Agreement for any reason, then in respect
of any threatened, pending or completed Proceedings in which the Company is
jointly liable with the Indemnitee (or would be if joined in such Proceedings),
the Company shall contribute to the amount of Expenses payable by the Indemnitee
in such proportion as is appropriate to reflect: (i) the relative benefits
received by the Company on the one hand and the Indemnitee on the other hand
from the transaction from which such proceeding arose; (ii) the relative fault
of the Company on the one hand and of the Indemnitee on the other hand in
connection with the Indemnifiable Events which resulted in such Expenses; and
(iii) any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnitee on the other hand shall be
determined by reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such Expenses. The Company agrees that it would not
be just and equitable if contribution pursuant to this section were determined
by pro rata allocation or any other method of allocation which does not take
account of the foregoing equitable considerations.
3.3 Mandatory Indemnification. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits (within the meaning of Section 317(d) of the California
Corporations Code) in defense of any Proceeding relating in whole or in part to
an Indemnifiable Event or in defense of any issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith;
provided, however, that the Company shall not be obligated to indemnify
Indemnitee for Expenses to the extent such have been paid directly to Indemnitee
by D&O Insurance or by Parent or any subsidiary pursuant
3
4
to any indemnification agreement, any provision of any such entity's charter
documents, applicable law or otherwise.
4. Expense Advances.
4.1 Advance of Expenses to Indemnitee. Expenses incurred
by Indemnitee in any Proceeding for which indemnification may be sought under
this Agreement shall be advanced by the Company to Indemnitee within thirty
(30) days after receipt by the Company of a statement or statements from
Indemnitee requesting such advance and reasonably evidencing the Expenses
incurred by Indemnitee (an "Expense Advance"). If it is ultimately determined
by a final judicial decision (from which there is no right of appeal) that
Indemnitee is not entitled to be indemnified by the Company, Indemnitee hereby
agrees to repay any amounts advanced by the Company under this Section 4.
Indemnitee agrees to execute any further agreements regarding the repayment of
Expenses as the Company may reasonably request prior to receiving any such
advance.
4.2 Exceptions. Notwithstanding Section 4.1, the Company
shall not be obligated for any Expense Advance under this Section 4 for any
Expenses incurred by the Indemnitee to the extent such arise from a lawsuit
filed directly by the Company or Parent against the Indemnitee if an absolute
majority of the members of the Board reasonably determines in good faith,
within forty-five (45) days of Indemnitee's request to be advanced expenses,
that the facts known to them at the time such determination is made demonstrate
clearly and convincingly that the Indemnitee acted in bad faith or in a manner
that such person did not believe to be in, or not opposed to, the best
interests of the Company or Parent. If such a determination is made,
Indemnitee may have such decision reviewed by another forum, in the manner set
forth in Section 6.2 hereof, with all references therein to "indemnification"
being deemed to refer to "advancement of expenses", and the burden of proof
shall be on the Company to demonstrate that, based on the facts known at the
time, Indemnitee acted in a manner set forth in the previous sentence. The
Company may not avail itself of this Section 4.2 as to a given lawsuit if, at
any time after the occurrence of the activities or omissions that are the
primary focus of the lawsuit, the Company or Parent has undergone a change in
control. For this purpose, a change in control shall mean a given shareholder
or group of affiliated shareholders increasing their beneficial ownership
interest in the Company by at least 20 percentage points without advance
approval of the Board of Directors of such company.
4.3 Amounts Otherwise Covered. Notwithstanding the
foregoing, the Company shall not be obligated to advance any Expenses to
Indemnitee to the extent such have been advanced by Parent pursuant to any
indemnification agreement, any provision of Parent's charter documents,
applicable law or otherwise.
5. Notification and Defense of Proceeding.
5.1 Notice of Claim. Indemnitee shall give written
notice to the Company promptly after Indemnitee has actual knowledge of any
Proceeding as to which indemnification may be sought under this Agreement. The
failure of Indemnitee to give notice, as provided in this Section 5.1, shall
not relieve the Company of its obligations to provide indemnification under
this Agreement; however, the amounts to which Indemnitee may be indemnified
shall be reduced to the extent that the Company has been prejudiced by such
failure to give notice.
4
5
5.2 Notice to Insurer. If, at the time of the receipt of
a notice of the commencement of a proceeding pursuant to Section 5.1 hereof,
the Company has D&O Insurance in effect with respect to Indemnitee, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such D&O Insurance policies.
5.3 Defense. With respect to any Proceeding, the Company
will be entitled to participate in the Proceeding at its own expense and,
except as otherwise provided below, to the extent the Company so desires, the
Company may assume the defense thereof with counsel reasonably satisfactory to
Indemnitee. However, the Company shall not be entitled to assume the defense
of any Proceeding: (i) brought by the Company or Parent; or (ii) as to which
Indemnitee has reasonably determined that there may be a conflict of interest
between Indemnitee and the Company or Parent in the defense of the Proceeding
and Indemnitee does in fact assume and conduct the defense.
5.3.1 If the Company assumes the defense, Indemnitee
shall furnish such information regarding Indemnitee or the Proceeding in
question, as the Company may reasonably request and as may be required in
connection with the defense or settlement of such Proceeding and shall fully
cooperate with the Company in every other respect. Except as provided in
Section 5.3 below, if the Company assumes the defense of the Proceeding, the
Company shall take all necessary steps in good faith to defend, settle or
otherwise dispose of the Proceeding.
5.3.2 In the event the Company shall be obligated to
indemnify the Indemnitee with respect to any Proceeding, the Company, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel approved by Indemnitee (which approval shall not be unreasonably
withheld), upon the delivery to Indemnitee of written notice of its election to
do so. After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee through the engagement of separate counsel with respect to the
same Proceeding; provided, however, that: (a) Indemnitee shall have the right
to employ his own counsel in any such Proceeding at Indemnitee's expense; and
(b) Indemnitee shall have the right to employ his own counsel in connection with
any such Proceeding, at the expense of the Company, if (i) the employment of
such counsel by Indemnitee has been previously authorized by the Company, (ii)
Indemnitee shall have reasonably determined that there may be a conflict of
interest between Indemnitee and the Company or Parent in the conduct of any such
defense or (iii) the Company shall not, in fact, have employed counsel to assume
the defense of such Proceeding.
5
6
6. Determination of Right to Indemnification.
6.1 Indemnification Unless Ineligible. In the event that
Section 3.3 is inapplicable, or does not apply to the entire Proceeding, the
Company shall nonetheless indemnify Indemnitee unless the Company shall prove
to a forum listed in Section 6.2 below that Indemnitee has not met the
applicable standard of conduct required to entitle Indemnitee to
indemnification or is not otherwise entitled to indemnification hereunder.
6.2 Forum. The forum in which the validity of the
Company's claim under Section 6.1 hereof that Indemnitee is not entitled to
indemnification will be heard shall be selected from among the following, with
the actual forum to be chosen by the mutual agreement of the Company and
Indemnitee:
(a) A quorum of the Board of Directors of the
Company or of Parent consisting of directors who are not parties to the
proceeding for which indemnification is being sought;
(b) The shareholders of Parent;
(c) Legal counsel selected by Indemnitee, and
reasonably approved by the Board, which counsel shall make such determination
in a written opinion;
(d) A panel of three arbitrators, one of whom is
selected by the Company, another of whom is selected by Indemnitee, and the
last of whom is selected by the first two arbitrators so selected; or
(e) Any court in the State of California having
jurisdiction of subject matter and the parties (a "California Court").
In the event that the Company and Indemnitee do not reach agreement on
a forum from the above list within thirty (30) days after the Company notifies
Indemnitee that it does not believe that Indemnitee has met the applicable
standard of conduct required to entitled Indemnitee to indemnification, then
the forum shall be a California Court selected by the quorum of directors
specified in Section 6.2 (a) above, after consulting with counsel for the
Company.
6.3 Claim by Company. As soon as practicable, and in no
event later than sixty (60) days after the Company notifies Indemnitee that it
does not believe that Indemnitee has met the applicable standard of conduct
required to entitle Indemnitee to indemnification, the Company shall, at its
own expense, submit to the forum selected in accordance with Section 6.2 hereof
its claim that Indemnitee is not entitled to indemnification; and the Company
shall act in the utmost good faith to assure Indemnitee a complete opportunity
to defend against such claim.
6.4 Defenses; Burden of Proof. It shall be a defense to
any action brought by Indemnitee or the Company concerning enforceability of
this Agreement that it is not permissible under applicable law for the Company
to indemnify Indemnitee for the amount claimed. In connection with any such
action or any determination as to whether Indemnitee is entitled
6
7
to be indemnified hereunder, the burden of proof shall be on the Company to
prove by clear and convincing evidence that Indemnitee is not entitled to be
indemnified hereunder.
6.5 Presumptions. Neither the failure of the Company
(including its Board or Parent's shareholders) to have made a determination
prior to the commencement of such action that indemnification is proper under
the circumstances because Indemnitee has met the standard of conduct set forth
in applicable law, nor an actual determination by the Company (including its
Board or Parent's shareholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct. For purposes
of this Agreement, the termination of any Proceeding, by judgment, order,
settlement (whether with or without court approval), conviction, or upon a plea
of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.
6.6 Appeals. If the forum selected in accordance with
Section 6.2 hereof is not a court, then after the final decision of such forum
is rendered, the Company or Indemnitee shall have the right to apply to a
California Court, the court in which the proceeding giving rise to Indemnitee's
claim for indemnification is or was pending, or any other court of competent
jurisdiction, for the purpose of appealing the decision of such forum, provided
that such right is exercised within sixty (60) days after the final decision of
such forum is rendered. If the forum selected in accordance with Section 6.2
hereof is a court, then the rights of the Company or Indemnitee to appeal any
decision of such court shall be governed by the applicable laws and rules
governing appeals of the decision of such court.
6.7 Equitable Relief. The Company agrees that the
Company's failure to make indemnification payments or Expense Advances to
Indemnitee shall cause irreparable damage to Indemnitee, the exact amount of
which is impossible to ascertain, and for this reason agrees that Indemnitee
shall be entitled to such injunctive or other equitable relief as shall be
necessary to adequately provide for payment or reasonably anticipated payments.
6.8 Indemnification for Expenses Incurred in Enforcing
Rights. Except as set forth in Sections 4.2 and 7 or unless a court of
competent jurisdiction finds that each of the material claims and/or defenses
of Indemnitee in any applicable Proceeding was frivolous or not made in good
faith, the Company shall indemnify Indemnitee against any and all Expenses and,
if requested by Indemnitee, shall (within thirty (30) days after such request)
advance such Expenses to Indemnitee, that are incurred by Indemnitee in
connection with any claim or action asserted against or brought by Indemnitee
for indemnification of Expenses or payment of Expense Advances by the Company
under this Agreement or any other agreement or under applicable law or the
Company's Articles of Incorporation or Bylaws now or hereafter in effect
relating to indemnification for Indemnifiable Events. Any Expenses so paid
shall be considered Expense Advances under Section 4 above.
7. Exceptions. Subject only to Section 3.3 above and
notwithstanding any other provision of this Agreement, the Company shall not be
obligated pursuant to the terms of this Agreement:
7
8
7.1 Claims Initiated by Indemnitee. To indemnify or
advance expenses to the Indemnitee in connection with any Proceeding initiated
by Indemnitee unless the Company has joined in, or the Board has consented to,
the initiation of such Proceeding, or the Proceeding is one to enforce rights
under this Agreement, the charter documents of the Company, Parent or any of
their subsidiaries, or any statute or law or otherwise, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board finds it to be appropriate;
7.2 Unauthorized Settlements. To indemnify Indemnitee to
the extent Indemnitee settles or otherwise disposes of a Proceeding or causes
the settlement or disposal of a Proceeding without the Company's express prior
written consent (which shall not be unreasonably withheld), unless Indemnitee
receives court approval for such settlement or other disposition where the
Company had the opportunity to oppose Indemnitee's request for such court
approval;
7.3 No Opportunity to Defend. To indemnify or advance
expenses to Indemnitee with regard to any judicial award if the Company was not
given a reasonable and timely opportunity, at its expense, to participate in
the defense of such action unless the Company's participation in such
Proceeding was barred by this Agreement or the court in such Proceeding;
7.4 Securities Law Actions. To indemnify the Indemnitee
on account of any suit in which judgment is rendered against the Indemnitee for
an accounting of profits made from the purchase or sale by the Indemnitee of
securities of Parent or the Company pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
7.5 Proceeding to Enforce Agreement. To indemnify or
advance expenses to the Indemnitee for any expenses incurred by the Indemnitee
with respect to any Proceeding instituted by Indemnitee to enforce or interpret
this Agreement, if a court of competent jurisdiction determines that each of
the material assertions made by the Indemnitee in such Proceeding was not made
in good faith or was frivolous; or
7.6 Unlawful Indemnification. To indemnify or advance
expenses for any acts, omissions, transactions or circumstances for which
indemnification is prohibited by applicable state or federal law or until any
preconditions imposed upon, or agreed to by, the Company by or with any court
or governmental agency are satisfied.
8. Insurance; Subrogation. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
D&O Insurance policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
9. Non-Exclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee
8
9
may have under any provision of law, the Company's Articles of Incorporation or
Bylaws, the vote of the Parent's shareholders or disinterested directors, other
agreements (including the similar agreement between Indemnitee and Parent) or
otherwise, both as to action in Indemnitee's official capacity and to action in
another capacity while occupying his position as an agent of the Company, and
Indemnitee's rights hereunder shall continue after Indemnitee has ceased acting
as an agent of the Company, Parent or any subsidiary and shall inure to the
benefit of Indemnitee's heirs, executors and administrators.
10. General Provisions.
10.1 Amendment of this Agreement. No supplement, modification
or amendment of this Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any of the provisions of this Agreement shall
operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically
provided herein, no failure to exercise or any delay in exercising any right or
remedy hereunder shall constitute a waiver thereof.
10.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, spouses, heirs, and personal and legal
representatives. The indemnification provided under this Agreement shall
continue as to Indemnitee for any action taken or not taken while serving in an
indemnified capacity pertaining to an Indemnifiable Event even though Indemnitee
may have ceased to serve in such capacity at the time of any Proceeding.
10.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
10.4 Remedies Cumulative. The rights and remedies provided in
this Agreement and by law shall be cumulative and the exercise of any particular
right or remedy shall not preclude the exercise of any other right or remedy in
addition to, or as an alternative to, such right or remedy.
10.5 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given: (i) if delivered by hand and receipted for by the party addressee,
on the date of such receipt; (ii) if mailed by domestic certified or registered
mail, return receipt requested, with postage prepaid to a third party addressee
located in the same country, on the third business day after the date post-
marked; or (iii) if mailed by an internationally recognized express courier
with written confirmation of delivery, upon delivery to the third party
addressee. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice.
10.6 Headings. Descriptive headings contained herein are
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
10.7 References. Any reference in this Agreement to the
indemnity provisions of the Company's Articles of Incorporation or Bylaws, the
California Corporations Code or to any applicable law shall refer to such
provisions as they shall be amended from time to time or to any successor
provision, except that any change in the Company's Articles of Incorporation or
Bylaws
9
10
shall only apply to the extent that such amendment permits the Company to
provide broader indemnification rights to Indemnitee than currently provided.
10.8 Severability. Any provision of this Agreement, which
is unenforceable in any jurisdiction, shall be ineffective in such jurisdiction
to the extent of such unenforceability without invalidating the remaining
provisions of this Agreement, and any unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
10.9 Applicable Law. The rights and obligations under this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of California applicable to contracts between California residents
made and to be performed entirely within such State.
10.10 Consent to Jurisdiction. The Company and Indemnitee
each hereby irrevocably consent to the jurisdiction of the courts of the State
of California for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement. Service may be made by first
class mail with respect to any actions arising out of or relating to this
Agreement.
10.11 Mutual Acknowledgment. Both the Company and Indemnitee
acknowledge that in certain instances U.S. Federal or state law or applicable
public policy may prohibit the Company from indemnifying or advancing expenses
to its agents under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the U.S. Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
10.12 Interpretation of Agreement. It is understood that
the parties hereto intend this Agreement to be interpreted and enforced so as
to provide indemnification and advancement of expenses to the Indemnitee to the
fullest extent now or hereafter permitted by law, except as expressly limited
herein.
10.13 Counterparts. This Agreement may be executed in one
or more counterparts, which shall together constitute one agreement.
[The remainder of this page is left intentionally blank]
10
11
IN WITNESS WHEREOF, this Indemnity Agreement has been entered into
effective as of the date first written above.
MICRO FOCUS INCORPORATED INDEMNITEE
By:
--------------------------------- -------------------------------------
(Signature)
Name: Name:
------------------------------- --------------------------------
Title: Address:
------------------------------ ----------------------------
----------------------------
----------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
11