EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of the ____ day
of ______________, 1999 (the "Agreement"), by and between CRITICAL PATH, INC., a
California corporation (the "Company"), and _____________________ (the
"Indemnitee"), with reference to the following facts:
A. The Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that any expenses, liability
and/or losses incurred by him in his good faith service to the Company will be
borne by the Company or its successors and assigns;
B. Indemnitee is willing to serve in his position with the Company only
on the condition that he be indemnified for such expenses, liability and/or
losses;
C. The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and agents of a
corporation at reasonable cost;
D. The Company and Indemnitee recognize that there has been an increase
in litigation against corporate directors, officers and agents; and
E. The Company's Articles of Incorporation allow and require the Company
to indemnify its directors, officers and agents to the maximum extent permitted
under California law.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Agent" shall mean any person who is or was a director, officer,
employee or agent of the Company or a subsidiary of the Company whether
serving in such capacity or as a director, officer, employee, agent,
fiduciary or other official of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise at the request
of, for the convenience of, or to represent the interests of the Company or
a subsidiary of the Company.
1.2 "Change of Control" shall mean the occurrence of any of the
following events after the date of this Agreement:
(a) a change in the composition of the Board of Directors, as a
result of which fewer than one-half of the incumbent directors are
directors who either: (i) had been directors of the Company 24 months
prior to such change; or (ii) were elected, or nominated for election,
to the Board of Directors with the affirmative votes of at least a
majority of the directors who had been directors of the Company 24
months prior to such change and who were still in office at the time
of the election or nomination;
(b) any "person" (as such term is used in sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) by the acquisition or aggregation of securities is or
becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 50 percent or more of the combined voting
power of the Company's then outstanding securities ordinarily (and
apart from rights accruing under special circumstances) having the
right to vote at elections of directors (the "Base Capital Stock");
except that any change in the relative beneficial ownership of the
Company's securities by any person resulting solely from a reduction
in the aggregate number of outstanding shares of Base Capital Stock,
and any decrease thereafter in such person's ownership of securities,
shall be disregarded until such person increases in any manner,
directly or indirectly, such person's beneficial ownership of any
securities of the Company;
(c) The sale of all or substantially all of the assets of the
Company to a person or entity who is not an affiliate (including a
parent or subsidiary) of the Company;
(d) the dissolution of the Company pursuant to action validly
taken by the shareholders of the Company in accordance with applicable
state law; or
(e) the occurrence of any other tender offer, merger,
consolidation, sale, reorganization, dissolution or other such event
or series of events, which in the opinion of a majority of the Board
of Directors (as reflected in a written resolution of the Board of
Directors) has resulted in a change of control of the Company.
Notwithstanding the foregoing, a Change of Control shall not be deemed to
occur in the event of (x) sale by the Company of shares of Preferred Stock prior
to an initial public offering of securities by the Company, (y) a change in the
Company's state of incorporation or (z) an initial public offering of securities
by the Company.
1.3 "Disinterested Director" shall mean a director of the Company who
is not and was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
1.4 "Expenses" shall be broadly construed and shall include, without
limitation, (a) all direct and indirect costs incurred, paid or accrued,
(b) all attorneys' fees, retainers, court costs, transcripts, fees of
experts, witness fees, travel expenses, food and lodging expenses while
traveling, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service, freight or other transportation fees
and expenses, (c) all other disbursements and out-of-pocket expenses, (d)
amounts paid in settlement, to the extent not prohibited by California Law,
and (e) reasonable compensation for time spent by Indemnitee for which he
is otherwise not compensated by the Company or any third party, actually
and reasonably incurred in connection with or arising out of a
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Proceeding, including a Proceeding by Indemnitee to establish or enforce a
right to indemnification under this Agreement, applicable law or otherwise.
1.5 "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five years has been retained
to represent: (a) the Company, an affiliate of the Company or Indemnitee
in any matter material to either party or (b) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's
right to indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments or fines, ERISA or other excise
taxes and penalties, and amounts paid in settlement (including all
interest, assessments or other charges paid or payable in connection with
any of the foregoing) actually and reasonably incurred by Indemnitee in
connection with a Proceeding.
1.7 "California Law" means the California Corporations Code, as
amended and in effect from time to time or any successor or other statutes
of California having similar import and effect.
1.8 "Proceeding" shall mean any pending, threatened or completed
action, hearing, suit or any other proceeding, whether civil, criminal,
arbitrative, administrative, investigative or any alternative dispute
resolution mechanism, including without limitation any such Proceeding
brought by or in the right of the Company.
2. Employment Rights and Duties. Subject to any other obligations imposed
on either of the parties by contract or by law, and with the understanding that
this Agreement is not intended to confer employment rights on either party which
they did not possess on the date of its execution, Indemnitee agrees to serve as
a director or officer so long as he is duly appointed or elected and qualified
in accordance with the applicable provisions of the Articles of Incorporation
(the "Articles") and Bylaws (the "Bylaws") of the Company or any subsidiary of
the Company and until such time as he resigns or fails to stand for election or
until his employment terminates. Indemnitee may from time to time also perform
other services at the request, or for the convenience of, or otherwise
benefiting the Company. Indemnitee may at any time and for any reason resign or
be removed from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the Company shall
have no obligation under this Agreement to continue Indemnitee in any such
position.
2.1 Directors' and Officers' Insurance.
(a) The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as a director or officer of the
Company and thereafter so long as Indemnitee shall be subject
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to any possible Proceeding, the Company, subject to Section 2.1(c),
shall maintain directors' and officers' insurance in full force and
effect.
(b) In all policies of directors' and officers' insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company's directors or officers
most favorably insured by such policy.
(c) The Company shall have no obligation to maintain directors'
and officers' insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount of coverage provided, or
the coverage provided by such insurance is limited by exclusions so as
to provide an insufficient benefit.
3. Indemnification. The Company shall indemnify Indemnitee to the fullest
extent authorized or permitted by California Law and the provisions of the
Articles and Bylaws of the Company in effect on the date hereof, and as
California Law, the Articles and Bylaws may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits the
Company to provide broader indemnification rights than California Law, the
Articles and/or Bylaws permitted the Company to provide before such amendment).
The right to indemnification conferred in the Articles shall be presumed to have
been relied upon by Indemnitee in serving or continuing to serve the Company as
a director or officer and shall be enforceable as a contract right. Without in
any way diminishing the scope of the indemnification provided by the Articles
and this Section 3, the Company shall indemnify Indemnitee if and whenever he is
or was a witness, party or is threatened to be made a witness or a party to any
Proceeding, by reason of the fact that he is or was an Agent or by reason of
anything done or not done, or alleged to have been done or not done, by him in
such capacity, against all Expenses and Liabilities actually and reasonably
incurred by Indemnitee or on his behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. In addition to, and not as a
limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in Sections
4, 5 and 6 below.
4. Payment of Expenses.
4.1 All Expenses incurred by or on behalf of Indemnitee shall be
advanced by the Company to Indemnitee within 20 days after the receipt by
the Company of a written request for such advance which may be made from
time to time, whether prior to or after final disposition of a Proceeding
(unless there has been a final determination by a court of competent
jurisdiction that Indemnitee is not entitled to be indemnified for such
Expenses). Indemnitee's entitlement to advancement of Expenses shall
include those incurred in connection with any Proceeding by Indemnitee
seeking a determination, an adjudication or an award in arbitration
pursuant to this Agreement. The requests shall reasonably evidence the
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Expenses incurred by Indemnitee in connection therewith. Indemnitee hereby
undertakes to repay the amounts advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified pursuant to
the terms of this Agreement.
4.2 Notwithstanding any other provision in this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee in connection
therewith.
5. Procedure for Determination of Entitlement to Indemnification.
5.1 Whenever Indemnitee believes that he is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a
written request for indemnification (the "Indemnification Request") to the
Company to the attention of the President with a copy to the Secretary.
This request shall include documentation or information which is necessary
for the determination of entitlement to indemnification and which is
reasonably available to Indemnitee. Determination of Indemnitee's
entitlement to indemnification shall be made no later than 60 days after
receipt of the Indemnification Request. The President or the Secretary
shall, promptly upon receipt of Indemnitee's request for indemnification,
advise the Board in writing that Indemnitee has made such request for
indemnification.
5.2 The Indemnification Request shall set forth Indemnitee's
selection of which of the following forums shall determine whether
Indemnitee is entitled to indemnification:
(1) A majority vote of Directors who are not parties to the
action with respect to which indemnification is sought, even though
less than a quorum.
(2) A written opinion of an Independent Counsel (provided there
are no such Directors as set forth in (1) above or if such Directors
as set forth in (1) above so direct).
(3) A majority vote of the shareholders at a meeting at which a
quorum is present, with the shares owned by the person to be
indemnified not being entitled to vote thereon.
(4) The court in which the Proceeding is or was pending upon
application by Indemnitee.
The Company agrees to bear any and all costs and expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
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6. Presumptions and Effect of Certain Proceedings. No initial finding by
the Board, its counsel, Independent Counsel, arbitrators or the shareholders
shall be effective to deprive Indemnitee of the protection of this indemnity,
nor shall a court or other forum to which Indemnitee may apply for enforcement
of this indemnity give any weight to any such adverse finding in deciding any
issue before it. Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by judgment, order,
settlement, arbitration award or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, (a) adversely affect the rights of
Indemnitee to indemnification except as indemnification may be expressly
prohibited under this Agreement, (b) create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee in Cases of Determination not to Indemnify or
to Advance Expenses.
7.1 In the event that (a) an initial determination is made that
Indemnitee is not entitled to indemnification, (b) advances for Expenses
are not made when and as required by this Agreement, (c) payment has not
been timely made following a determination of entitlement to
indemnification pursuant to this Agreement or (d) Indemnitee otherwise
seeks enforcement of this Agreement, Indemnitee shall be entitled to a
final adjudication in an appropriate court of the State of California of
his entitlement to such indemnification or advance. Alternatively,
Indemnitee at his option may seek an award in arbitration. If the parties
are unable to agree on an arbitrator, the parties shall provide JAMS
Endispute ("JAMS") with a statement of the nature of the dispute and the
desired qualifications of the arbitrator. JAMS will then provide a list of
three available arbitrators. Each party may strike one of the names on the
list, and the remaining person will serve as the arbitrator. If both
parties strike the same person, JAMS will select the arbitrator from the
other two names. The arbitration award shall be made within 90 days
following the demand for arbitration. Except as set forth herein, the
provisions of California law shall apply to any such arbitration. The
Company shall not oppose Indemnitee's right to seek any such adjudication
or arbitration award. In any such proceeding or arbitration Indemnitee
shall be presumed to be entitled to indemnification under this Agreement
and the Company shall have the burden of proof to overcome that
presumption.
7.2 An initial determination, in whole or in part, that Indemnitee is
not entitled to indemnification shall create no presumption in any judicial
proceeding or arbitration that Indemnitee has not met the applicable
standard of conduct for, or is otherwise not entitled to, indemnification.
7.3 If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in the
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absence of (a) a misrepresentation of a material fact by Indemnitee in the
request for indemnification or (b) a specific finding (which has become
final) by a court of competent jurisdiction that all or any part of such
indemnification is expressly prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary remedy
for breach of this Agreement, at some later date, will be inadequate,
impracticable and difficult of proof, and further agree that such breach
would cause Indemnitee irreparable harm. Accordingly, the Company and
Indemnitee agree that Indemnitee shall be entitled to temporary and
permanent injunctive relief to enforce this Agreement without the necessity
of proving actual damages or irreparable harm. The Company and Indemnitee
further agree that Indemnitee shall be entitled to such injunctive relief,
including temporary restraining orders, preliminary injunctions and
permanent injunctions, without the necessity of posting bond or other
undertaking in connection therewith. Any such requirement of bond or
undertaking is hereby waived by the Company, and the Company acknowledges
that in the absence of such a waiver, a bond or undertaking may be required
by the court.
7.5 The Company shall be precluded from asserting that the procedures
and presumptions of this Agreement are not valid, binding and enforceable.
The Company shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement and is
precluded from making any assertion to the contrary.
7.6 Expenses incurred by Indemnitee in connection with his request
for indemnification under, seeking enforcement of or to recover damages for
breach of this Agreement shall be borne and advanced by the Company.
8. Other Rights to Indemnification. Indemnitee's rights of
indemnification and advancement of expenses provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under applicable law, the Articles, the Bylaws, an employment
agreement, a vote of shareholders or Disinterested Directors, insurance or other
financial arrangements or otherwise.
9. Limitations on Indemnification. No indemnification pursuant to
Section 3 shall be paid by the Company nor shall Expenses be advanced pursuant
to Section 3:
9.1 Insurance. To the extent that Indemnitee is reimbursed pursuant
to such insurance as may exist for Indemnitee's benefit. Notwithstanding
the availability of such insurance, Indemnitee also may claim
indemnification from the Company pursuant to this Agreement by assigning to
the Company any claims under such insurance to the extent Indemnitee is
paid by the Company. Indemnitee shall reimburse the Company for any sums
he receives as indemnification from other sources to the extent of any
amount paid to him for that purpose by the Company;
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9.2 Section 16(b). On account and to the extent of any wholly or
partially successful claim against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) or the Securities Exchange Act
of 1934, as amended, and amendments thereto or similar provisions of any
federal, state or local statutory law; or
9.3 Indemnitee's Proceedings. Except as otherwise provided in this
Agreement, in connection with all or any part of a Proceeding which is
initiated or maintained by or on behalf of Indemnitee, or any Proceeding by
Indemnitee against the Company or its directors, officers, employees or
other agents, unless (a) such indemnification is expressly required to be
made by California Law, (b) the Proceeding was authorized by a majority of
the Disinterested Directors, (c) there has been a Change of Control or (d)
such indemnification is provided by the Company, in its sole discretion,
pursuant to the powers vested in the Company under California Law.
10. Duration and Scope of Agreement; Binding Effect. This Agreement shall
continue so long as Indemnitee shall be subject to any possible Proceeding
subject to indemnification by reason of the fact that he is or was an Agent and
shall be applicable to Proceedings commenced or continued after execution of
this Agreement, whether arising from acts or omissions occurring before or after
such execution. This Agreement shall be binding upon the Company and its
successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company) and shall inure to the benefit of Indemnitee and his
spouse, assigns, heirs, devisees, executors, administrators and other legal
representatives.
11. Notice by Indemnitee and Defense of Claims. Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,
whether civil, criminal, arbitrative, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Indemnitee if such omission does not actually prejudice the
Company's rights and, if such omission does prejudice the Company's rights, it
will relieve the Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
Proceeding:
(a) The Company will be entitled to participate therein at its
own expense;
(b) Except as otherwise provided below, to the extent that it may
wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After notice from the Company
to Indemnitee of its election so to assume the defense thereof and the
assumption of such defense, the
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Company will not be liable to Indemnitee under this Agreement for any
attorney fees or costs subsequently incurred by Indemnitee in
connection with Indemnitee's defense except as otherwise provided
below. Indemnitee shall have the right to employ his counsel in such
Proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof and
the assumption of such defense shall be at the expense of Indemnitee
unless (i) the employment of counsel by Indemnitee has been authorized
by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee
in the conduct of the defense of such action or that the Company's
counsel may not be adequately representing Indemnitee or (iii) the
Company shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company; and
(c) The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Company shall not
settle any action or claim which would impose any limitation or
penalty on Indemnitee without Indemnitee's written consent. Neither
the Company nor Indemnitee will unreasonably withhold its or his
consent to any proposed settlement.
12. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or part, the Company shall, in such an event, after taking into account,
among other things, contributions by other directors and officers of the Company
pursuant to indemnification agreements or otherwise, and, in the absence of
personal enrichment, acts of intentional fraud or dishonesty or criminal conduct
on the part of Indemnitee, contribute to the payment of Indemnitee's losses to
the extent that, after other contributions are taken into account, such losses
exceed: (i) in the case of a director of the Company or any of its subsidiaries
who is not an officer of the Company or any of such subsidiaries, the amount of
fees paid to the director for serving as a director during the 12 months
preceding the commencement of the Proceeding; or (ii) in the case of a director
of the Company or any of its subsidiaries who is also an officer of the Company
or any of such subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for service in such office(s)
during the 12 months preceding the commencement of the Proceeding; or (iii) in
the case of an officer of the Company or any of its subsidiaries, 5% of the
aggregate cash compensation paid to such officer for service in such office(s)
during the 12 months preceding the commencement of such Proceeding.
13. Establishment of Trust. In order to secure the obligations of the
Company to indemnify and to advance Expenses to Indemnitee pursuant to this
Agreement, upon a Change of Control of the Company, the Company or its successor
or assign shall establish a Trust (the
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"Trust") for the benefit of the Indemnitee, the trustee (the "Trustee") of which
shall be chosen by the Company and which is reasonably acceptable to the
Indemnitee. Thereafter, from time to time, upon receipt of a written request
from Indemnitee, the Company shall fund the Trust in amounts sufficient to
satisfy any and all Liabilities and Expenses reasonably anticipated at the time
of such request for which the Company may indemnify Indemnitee hereunder. The
amount or amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of the Indemnitee and the
Company or, if the Company and the Indemnitee are unable to reach such an
agreement, by Independent Counsel selected jointly by the Company and the
Indemnitee. The terms of the Trust shall provide that except upon the consent of
the Indemnitee and the Company, (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee, (ii)
the Trustee shall advance to the Indemnitee, within 20 days of a request by the
Indemnitee, any and all Expenses, the Indemnitee hereby agreeing to reimburse
the Trustee of the Trust for all Expenses so advanced if a final determination
is made by a court in a final adjudication from which there is no further right
of appeal that the Indemnitee is not entitled to be indemnified under this
Agreement, (iii) the Trust shall continue to be funded by the Company in
accordance with the funding obligations set forth in this Section, (iv) the
Trustee shall promptly pay to the Indemnitee any amounts to which the Indemnitee
shall be entitled pursuant to this Agreement, and (v) all unexpended funds in
the Trust shall revert to the Company upon a final determination by Independent
Counsel selected by Indemnitee or a court of competent jurisdiction that
Indemnitee has been fully indemnified with respect to the Proceeding giving rise
to the funding of the Trust under the terms of this Agreement. The establishment
of the Trust shall not, in any way, diminish the Company's obligation to
indemnify Indemnitee against Expenses and Liabilities to the full extent
required by this Agreement.
14. Miscellaneous Provisions.
14.1 Severability; Partial Indemnity. If any provision or provisions
of this Agreement (or any portion thereof) shall be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable for any
reason whatever: (a) such provision shall be limited or modified in its
application to the minimum extent necessary to avoid the invalidity,
illegality or unenforceability of such provision; (b) the validity,
legality and enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired thereby; and (c) to the
fullest extent possible, the provisions of this Agreement shall be
construed so as to give effect to the intent manifested by the provision
(or portion thereof) held invalid, illegal or unenforceable. If Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any Expenses or Liabilities of any type
whatsoever incurred by him in the investigation, defense, settlement or
appeal of a Proceeding but not entitled to all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for such total amount
except as to the portion thereof for which it has been determined pursuant
to Section 5 hereof that Indemnitee is not entitled.
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14.2 Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement.
14.3 Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to Indemnitee to the fullest extent not now or
hereafter prohibited by law.
14.4 Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
14.5 Pronouns. Use of the masculine pronoun shall be deemed to
include use of the feminine pronoun where appropriate.
14.6 Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
both of the parties to this Agreement. No waiver of any provision of this
Agreement shall be deemed to constitute a waiver of any of the provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver. No waiver of any provision of this Agreement shall be
effective unless executed in writing.
14.7 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if (i) delivered by hand and receipted for by the party to
whom said notice or other communication shall have been directed (ii)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed, or (iii) sent by
facsimile transmission and receipt thereof is electronically confirmed:
(a) If to Indemnitee, to:
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Telephone: ( ) -
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Facsimile: ( ) -
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(b) If to the Company, to: Critical Path, Inc.
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Telephone: ( ) -
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Facsimile: ( ) -
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Attention: Secretary
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
14.8 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California, as applied to contracts between California residents
entered into and to be performed entirely within California.
14.9 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 and agree that any action
instituted under this agreement shall be brought only in the state courts
of the State of California.
14.10 Entire Agreement. This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understanding between the parties hereto with respect to the
subject matter of this Agreement, except as specifically referred to herein
or as provided in Sections 8 and 2.1 hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CRITICAL PATH, INC.
By:
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Name:
Title:
INDEMNITEE
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Name:
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