Form of INDEMNIFICATION AGREEMENT
Exhibit 10.01
Form of
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of , 200___, is made by and between
SYMANTEC CORPORATION, a Delaware corporation (the “Company”), and , a
director, officer or key employee of the Company or one of the Company’s Subsidiaries (the
“Indemnitee”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant
to serve as representatives 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 representatives;
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of legal risks to which they are
exposed or information regarding the proper course of action to take;
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be
so substantial (whether or not the case is meritorious), that the defense and/or settlement of
such litigation is often beyond the personal resources of representatives;
D. The Company believes that it is unfair for its representatives and the representatives
of its Subsidiaries (as defined below) to assume the risk of large judgments and Expenses (as
defined below) that may be incurred in cases in which the representative received no personal
profit and in cases where the director or officer was not culpable;
E. The Company recognizes that the issues in controversy in litigation against a
representative of a corporation such as the Company or a Subsidiary of the Company are often
related to the knowledge, motives and intent of such representatives, that he or she is usually
the only witness with knowledge of the essential facts and exculpating circumstances regarding
such matters and that the long period of time which usually elapses before the trial or other
disposition of such litigation often extends beyond the time that the representative can
reasonably recall such matters; and may extend beyond the normal time for retirement for such
director or officer with the result that he or she, after retirement or in the event of his or
her death, his or her spouse, heirs, executors or administrators, may be faced with limited
ability and undue hardship in maintaining an adequate defense, which may discourage such a
representatives from serving in that position;
F. Based upon their experience as business managers, the Board of Directors of the Company
(the “Board”) has concluded that, to retain and attract talented and experienced
individuals to serve as representatives of the Company and its Subsidiaries and to encourage
such individuals to take the business risks necessary for the success of the
Company and its
Subsidiaries, it is necessary for the Company to contractually indemnify its representatives and
the representatives of its Subsidiaries, and to assume for itself maximum liability for Expenses
and damages in connection with claims against such representatives in connection with their
service to the Company and its Subsidiaries, and has further concluded that the failure to
provide such contractual indemnification could result in great harm to the Company and its
Subsidiaries and the Company’s stockholders;
G. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized (“Section 145”), empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as
directors, officers, employees or agents of other corporations or enterprises, and expressly
provides that the indemnification provided by Section 145 is not exclusive;
H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
representatives of the Company and/or the Subsidiaries of the Company free from undue concern
for claims for damages arising out of or related to such services to the Company and/or the
Subsidiaries of the Company; and
I. The Indemnitee is willing to serve, or to continue to serve, the Company and/or the
Subsidiaries of the Company, provided that he or she is furnished the indemnity provided for
herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Affiliate. For purposes of this Agreement, “Affiliate” of the Company means any
corporation, partnership, joint venture, trust or other enterprise in respect of which the
Indemnitee is or was or will be serving as a director, officer, advisory director, trustee,
manager, member, partner, employee, agent, attorney, consultant, member of the entity’s governing
body (whether constituted as a board of directors, board of managers, general partner or
otherwise), fiduciary, or in any other similar capacity at the direct or indirect request of the
Company, and including, but not limited to, any employee benefit plan of the Company or a
Subsidiary or Affiliate of the Company.
(b) Agent. For the purposes of this Agreement, “Agent” of the Company means any
person who is or was a director, officer, employee, attorney or other agent of the Company or a
Subsidiary of the Company; or is or was serving at the request of, for the convenience of, or to
represent the interest of the Company or a Subsidiary of the Company as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; or was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Company or a Subsidiary of the Company, or
was a director, officer, employee or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor corporation.
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(c) Expenses. For purposes of this Agreement, “Expenses” means all direct and
indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees
and related disbursements, and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with either the investigation, defense or appeal of, or being a witness
in, a Proceeding (as defined below) or establishing or enforcing a right to indemnification under
this Agreement, Section 145 or otherwise; provided, however, that Expenses shall not include any
judgments, fines, ERISA excise taxes or penalties or amounts paid in settlement of a Proceeding.
(d) Other Liabilities. For purposes of this Agreement, “Other Liabilities” means any
and all liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA
(or other benefit plan related) excise taxes or penalties, and amounts paid in settlement and all
interest, taxes, assessments and other charges paid or payable in connection
with or in respect of any Expenses or any such judgments, fines, ERISA (or other benefit plan
related) excise taxes or penalties, or amounts paid in settlement).
(e) Proceeding. For the purposes of this Agreement, “Proceeding” means any
threatened, pending, or completed action, suit or other proceeding, whether civil, criminal,
administrative, investigative or any other type whatsoever, including any arbitration or other
alternative dispute resolution and including any appeal of any of the foregoing.
(f) 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 other subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an
Agent of the Company, at the will of the Company (or under separate agreement, if such agreement
exists), in the capacity the Indemnitee currently serves as an Agent of the Company, so long as he
or she is duly appointed or elected, and is and remains qualified to serve in such capacity, in
accordance with the applicable provisions of the Bylaws of the Company or any Subsidiary of the
Company and until the resignation, removal, termination, permanent disability or death of the
Indemnitee; provided, however, that nothing contained in this Agreement is intended to create any
right to continued employment or other form of service by the Indemnitee.
3. Mandatory Indemnification. The Company shall indemnify the Indemnitee to the
fullest extent not prohibited by the provisions of the Company’s Bylaws and the Delaware General
Corporation Law (“GCL”), as the same may be amended from time to time (but only to the extent that
such amendment permits the Company to provide broader indemnification rights than the Bylaws or the
GCL permitted prior to the adoption of such amendment) as follows, subject to the limitations set
forth in Section 10 below:
(a) Third Party Actions. If the Indemnitee is a person who was or is a party to, or
witness in, or is threatened to be made a party to, or witness in, any Proceeding (other than an
action by or in the right of the Company, which actions are addressed in Section 3(b) below) by
reason of the fact that he or she is or was an Agent of the Company, or by reason of anything done
or not done by the Indemnitee in any such capacity, against any and all Expenses and Other
Liabilities actually and reasonably incurred by the Indemnitee in connection with the
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investigation, defense, settlement or appeal of such Proceeding if he or she acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or Proceeding, had no reasonable cause to believe
his or her conduct was unlawful; and
(b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he or she is or was an Agent of the Company, or by
reason of anything done or not done by the Indemnitee in any such capacity, against any amounts
paid in settlement of any such Proceeding, to the maximum extent permitted by law, and all Expenses
actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,
settlement, or appeal of such Proceeding if the Indemnitee acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the Company; except
that no indemnification under this subsection shall be made in respect of any claim, issue or
matter as to which such person shall have been finally adjudged to be liable to the Company, unless
and only to the extent that the Court of Chancery of the State of Delaware (“Court of Chancery”) or
the court in which such Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such amounts which the
Court of Chancery or such other court shall deem proper.
4. Determination of “Good Faith”. For purposes of any determination of “good faith”
hereunder, the Indemnitee shall be deemed to have acted in good faith if in taking such action the
Indemnitee relied on the records or books of account of the Company or a Subsidiary or Affiliate of
the Company, including financial statements, or on information, opinions, reports or statements
provided to the Indemnitee by the officers or other employees of the Company or a Subsidiary or
Affiliate of the Company in the course of their duties, or on the advice of legal counsel for the
Company or a Subsidiary or Affiliate of the Company, or on information or records given or reports
made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public
accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate
of the Company, or by any other person (including legal counsel, accountants and financial
advisors) as to matters the Indemnitee reasonably believes are within such other person’s
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Company. In connection with any determination as to whether the Indemnitee is entitled to be
indemnified hereunder, the Reviewing Party (as defined below) or court shall presume that the
Indemnitee has satisfied the applicable standard of conduct and shall be entitled to
indemnification, and the burden of proof shall be on the Company to establish that the Indemnitee
is not so entitled. The provisions of this Section 4 shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or
actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate
of the Company as an indemnifiable person shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification hereunder.
5. Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the
foregoing, the Company shall not be obligated to indemnify the Indemnitee for Expenses or Other
Liabilities of any type whatsoever (including, but not limited to judgments,
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fines, ERISA excise
taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to
the Indemnitee by any directors and officers insurance (“D&O Insurance”) maintained by the
Company or other indemnity arrangements with third parties.
6. Partial Indemnification and Contribution.
(a) Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of any Expenses or Other
Liabilities, but not entitled, however, to indemnification for all of the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for such total amount except as to the portion
thereof to which the Indemnitee is not entitled.
(b) Contribution. If the Indemnitee is not entitled to the indemnification provided
in Section 3 above for any reason other than the statutory limitations set forth in the GCL, then
in respect of any threatened, pending or completed Proceeding in which the Company is jointly
liable with the Indemnitee (or would be if joined in such Proceeding), the Company shall contribute
to the amount of Expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or 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
and (ii) the relative fault of the Company on the one hand and of the Indemnitee on the other hand
in connection with the events which resulted in such Expenses, judgments, fines or settlement
amounts, as well as any other relevant equitable considerations. The relative fault on 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, judgments, fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or any
other method of allocation which does not take into account the foregoing equitable considerations.
7. Mandatory Advancement of Expenses.
(a) Advancement. Subject to Section 10 below, the Company shall advance prior to the
final disposition of the Proceeding, all Expenses incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of any Proceeding to which the Indemnitee is a party
or is threatened to be made a party by reason of the fact that the Indemnitee is or was an Agent of
the Company or by reason of anything done or not done by him or her in any such capacity. The
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company
under the provisions of this Agreement, the Company’s Bylaws or the GCL. The advances to be made
hereunder shall be paid by the Company to the Indemnitee or directly to a third party designated in
writing by the Indemnitee within twenty (20) days following delivery of a written request therefor
by the Indemnitee to the Company.
(b) Exception. Notwithstanding the foregoing provisions of this Section 7, the
Company shall not be obligated to advance any Expenses to the Indemnitee if: (i) those members of
the Board consisting of directors who were not parties to the Proceeding for which a claim is
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made under this Agreement, even though less than a quorum or (ii) independent legal counsel, selected by
the Indemnitee, and approved by the Board, which approval may not be unreasonably withheld, by
written legal opinion, or (iii) a panel of arbitrators (one of whom is selected by the Company,
another of whom is selected by the Indemnitee and the last of whom is selected by the first two
arbitrators so selected), determines in good faith, within thirty (30) days of the 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. If such a
determination is made, the Indemnitee may have such decision reviewed in the manner set forth in
Section 9(d) 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 clearly
and convincingly that, based on the facts known at the time, the Indemnitee acted in bad faith.
8. Notice and Other Indemnification Procedures.
(a) Notification. Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any Proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company of the commencement or threat of commencement thereof. The
failure to promptly notify the Company of the commencement of, or the threat of commencement of,
any Proceeding, or the Indemnitee’s request for indemnification will not relieve the Company from
any obligation that it may have to the Indemnitee hereunder, except to the extent that the Company
is materially prejudiced in its defense of such Proceeding as a result of such failure.
(b) Insurance and Other Matters. If, at the time of the receipt of a notice of the
commencement of a Proceeding pursuant to Section 8(a) above, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers
in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all reasonable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms of such D&O
Insurance policies.
(c) Assumption of Defense. In the event the Company shall be obligated to advance the
Expenses for any Proceeding against the Indemnitee, the Company, if deemed appropriate by the
Company, shall be entitled to assume the defense of such Proceeding as provided herein. Following
delivery of written notice to the Indemnitee of the Company’s election to assume the defense of
such Proceeding, the approval by the Indemnitee (which approval shall not be unreasonably withheld)
of counsel designated by the Company and the retention of such counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel
subsequently incurred by the Indemnitee with respect to the same Proceeding. If (A) the employment
of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee
shall have notified the Board in writing that the Indemnitee has reasonably concluded that there
may be a conflict of interest between the Company and the Indemnitee in the conduct of any such
defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, the
fees and expenses of the Indemnitee’s counsel shall be subject to indemnification and/or
advancement
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pursuant to the terms of this Agreement. Nothing herein shall prevent the Indemnitee
from employing counsel for any such Proceeding at the Indemnitee’s expense.
9. Determination of Right to Indemnification.
(a) Success on the Merits. To the extent the Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding referred to in Section 3(a) or 3(b) of this
Agreement or in the defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her in
connection therewith.
(b) Right to Indemnification in Other Situations. In the event that Section 9(a) is
inapplicable, the Company shall also indemnify the Indemnitee if he or she has not failed to meet
the applicable standard of conduct for indemnification.
(c) Forum. The Indemnitee shall be entitled to select the forum in which
determination of whether or not the Indemnitee has met the applicable standard of conduct will be
made from among the following, except that the Indemnitee can select the forum consisting of the
stockholders of the Company only with the approval of the Company:
(1) Those members of the Board consisting of directors who are not parties to the Proceeding
for which indemnification is being sought, even though less than a quorum;
(2) The stockholders of the Company;
(3) Independent legal counsel selected by the Indemnitee, and approved by the Board, which
approval may not be unreasonably withheld, which counsel shall make such determination in a written
opinion; or
(4) A panel of three arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected by the first two arbitrators so
selected.
The selected forum shall be referred to herein as the “Reviewing Party”.
As soon as practicable, and in no event later than 30 days after written notice of the Indemnitee’s
choice of forum pursuant to Section 9(c) above, the Company and the Indemnitee shall each submit to
the Reviewing Party such information as they believe is appropriate for the Reviewing Party to
consider.
(d) Delaware Court of Chancery. Notwithstanding a final determination by any
Reviewing Party that the Indemnitee is not entitled to indemnification with respect to a specific
Proceeding, the Indemnitee shall have the right to apply to the Court of Chancery of Delaware, the
court in which that Proceeding is or was pending or any other court of competent jurisdiction, for
the purpose of enforcing the Indemnitee’s right to indemnification pursuant to this Agreement.
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(e) Expenses. Notwithstanding any other provision of this Agreement to the contrary,
the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in
connection with any hearing or Proceeding under this Section 9 involving the Indemnitee and against
all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company
and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material
claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in good
faith.
10. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement under the following
circumstances:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to the
Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to (1) Proceedings brought to establish or enforce a
right to indemnification under this Agreement, any other statute or law, as permitted under Section
145, or otherwise, and (2) Proceedings brought to discharge the Indemnitee’s fiduciary
responsibilities, whether under ERISA 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;
or
(b) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a Proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld or delayed; or
(c) Undeserved Personal Advantage. To indemnify the Indemnitee under this Agreement
for Other Liabilities from a Proceeding in which a court enters a judgment concluding that the
Indemnitee gained in fact a material personal profit or advantage to which the Indemnitee is not
entitled; or
(d) Advance Expenses. To advance Expenses to the Indemnitee under this Agreement for
any Expenses incurred by the Indemnitee with respect to any Proceeding brought by the Company
against the Indemnitee for breach of the duty of loyalty, an act or omission not in good faith or
that involves intentional misconduct or knowing violation of law, or a transaction from which the
Indemnitee gained an improper personal benefit.
(e) 16(b) 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 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; or
(f) Unlawful Indemnification. To indemnify the Indemnitee for Other Liabilities if a
final decision by a court having jurisdiction in the matter shall determine that such
indemnification is prohibited by law. Both the Company and the Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the Company from
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indemnifying under this Agreement or otherwise a person serving the Company or a Subsidiary or
Affiliate of the Company as an Agent.
11. 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 the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to acts or omissions in his or her official capacity and to acts or omissions in another capacity
while occupying his or her position as an Agent of the Company, and the Indemnitee’s rights
hereunder shall continue after the Indemnitee has ceased acting as an Agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of the Indemnitee. If the
Company and the Indemnitee have previously entered into an Indemnity Agreement providing for
indemnification of the Indemnitee by the Company, the parties’ entry into this Indemnification
Agreement shall be deemed to amend and restate such Indemnity Agreement to read in its entirety as,
and to be superseded by, this Indemnification Agreement.
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 prohibited herein.
13. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 12 above.
14. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) and except as expressly provided herein, no such waiver
shall constitute a continuing waiver.
15. Successors and Assigns. The terms of this Agreement shall bind, and shall inure
to the benefit of, the successors and assigns of the parties hereto.
16. Notice. 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 receipt
is provided by the party to whom such communication is delivered or (ii) if mailed by certified or
registered mail with postage prepaid, return receipt requested, on the signing by the recipient of
an acknowledgment of receipt form accompanying deliver through the U.S. mail, (iii) personal
service by a process server, or (iv) delivery to the recipient’s address by overnight delivery
(e.g. FedEx, UPS or DHL) or other commercial delivery service. Addresses for notice to either
party
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are as shown on the signature page of this Agreement, or as subsequently modified by written
notice complying with the provisions of this Section 16. Delivery of communications to the Company
with respect to this Agreement shall be sent to the attention of the Company’s General Counsel.
17. No Presumptions. For purposes of this Agreement, the termination of any
Proceeding, by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the 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 or
otherwise. In addition, neither the failure of the Company or a Reviewing Party to have made a
determination as to whether the Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Company or a Reviewing Party that the
Indemnitee has not met such standard of conduct or did not have such belief, prior to the
commencement of Proceedings by the Indemnitee to secure a judicial determination by exercising the
Indemnitee’s rights under Section 7 or 9(d) of this Agreement that the Indemnitee should be
indemnified under applicable law shall be a defense to the Indemnitee’s claim or create a
presumption that the Indemnitee has failed to meet any particular standard of conduct or did not
have any particular belief or is not entitled to indemnification under applicable law or otherwise.
18. Survival of Rights. The rights conferred on the Indemnitee by this Agreement
shall continue after the Indemnitee has ceased to serve the Company or a Subsidiary or Affiliate of
the Company as an Indemnifiable Person and shall inure to the benefit of the Indemnitee’s heirs,
executors and administrators.
19. Subrogation. 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 the Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
20. Specific Performance. The parties recognize that if any provision of this
Agreement is violated by the Company, the Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the
Indemnitee so elects, to institute Proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief or any combination
of the foregoing as the Indemnitee may elect to pursue.
21. Counterparts. This Agreement may be executed in 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.
22. 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 of interpretation thereof.
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23. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely with Delaware.
24. Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or Proceeding which arises out of or relates to this Agreement.
The parties hereto have entered into this Indemnification Agreement effective as of the date
first above written.
| SYMANTEC CORPORATION | ||||||||
| Address: | 00000 Xxxxxxx Xxxxx Xxxx. | |||||||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||||
| By | ||||||||
| Its | ||||||||
| INDEMNITEE: | ||||||||
| Address: | ||||||||
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