**Exhibit 10.34**

 

MACROMEDIA, INC. 

 

INDEMNIFICATION AGREEMENT 

 

THIS AGREEMENT is made and entered into as of this          day of                     between Macromedia, Inc., a Delaware corporation (the “Company”) and                     (“Indemnitee”). 

 

WITNESSETH THAT: 

 

WHEREAS, Indemnitee is a director or officer of the Company and provides valuable services in such capacity for the Company; 

 

WHEREAS, the Company’s Bylaws (the “Bylaws”) provide for theindemnification of the directors and officers of the Company to the maximum extent authorized by Section 145 of the Delaware General Corporation Law, as amended (the “Code”); 

 

WHEREAS, the Bylaws and the Code, by their nonexclusive nature, permit contracts between the Company and its directors andofficers with respect to indemnification of such directors and officers; 

 

WHEREAS, as a result of recent developments affecting the terms, scope, and availability of directors’ and officers’ liability insurance, there exists general uncertainty as to the extent of protection whichmay be afforded the Company’s directors and officers by such insurance and by statutory and bylaw indemnification provisions; and 

 

WHEREAS, in order to induce Indemnitee to continue to serve as a director or officer of the Company, the Company has determined and agreed to enter intothis agreement with Indemnitee; 

 

NOW, THEREFORE, inconsideration of Indemnitee’s continued service as a director or officer after the date hereof, the parties hereto agree as follows: 

 

1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the full extent authorized or permitted by theprovisions of the Code as it is presently constituted and as it may be amended from time to time; provided, however, that the Company shall indemnify Indemnitee in connection with an action, suit, or proceeding initiated by Indemnitee (other than anaction referred to in Section 8.B hereof) only if such action, suit, or proceeding was authorized by the Company’s Board of Directors. 

 

2. Additional Indemnity. Subject only to the exclusions set forth in Section 3 hereof, the Companyhereby further agrees to hold harmless and indemnify Indemnitee: 

 

A. Against any and all expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with any threatened, pending, or completed action, suit, orproceeding, whether civil, criminal, administrative, or investigative (including an action by or in the right of the Company) to which Indemnitee is, was, or at any time becomes a party, or is threatened to be made a party, by reason of the factthat Indemnitee is, was, or at any time becomes a director, officer, employee, or agent of the Company or is or was serving or at any time serves at the request of the Company as a director, officer, employee, or agent of another corporation,partnership, joint venture, trust, or other enterprise; and 

 

B.Otherwise to the full extent as may be provided to Indemnitee by the Company under the non-exclusivity provisions of the Code. 

 

3. Limitations on Additional Indemnity. No indemnity pursuant to Section 2 hereof shall be paid by the Company: 

 

A. On account of any suit in which judgment is rendered against Indemniteefor 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) of the Securities Exchange Act of 1934, as amended, or similar provisions of any federal, state, orlocal statutory law; 

 

B. On account of conduct by Indemniteewhich is finally adjudged to have been in bad faith or conduct that Indemnitee did not reasonably believe to be in, or not opposed to, the best interests of the Company; 

 

C. On account of any criminal action or proceeding arising out of conduct that Indemnitee had reasonable cause to believewas unlawful; or 

 

D. If a final decision by a Court havingjurisdiction in the matter shall determine that such indemnification is not lawful. 

 

4. Contribution. If the indemnification provided in Sections 1 or 2 is unavailable and may not be paid to Indemnitee for any reason other than those set forth in paragraphs (A), (B), and (C) of Section 3hereof, then in respect of any threatened, pending, or completed action, suit, or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit, or proceeding), the Company shall contribute to theamount of expenses (including attorney’s fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in such proportion as is appropriate to reflect (i) the relative benefitsreceived by the Company on the one hand and Indemnitee on the other hand from the transaction from which such action, suit, or proceeding arose, and (ii) the relative fault of the Company on the one hand and of Indemnitee on the other in connectionwith the events which resulted in such expenses, judgments, fines, or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Indemnitee on the other shall bedetermined 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.

 
Indemnification Agreement 2 6/13/2005

5. Continuation of Obligations. All agreements and obligations of the Company contained hereinshall continue during the period Indemnitee is a director, officer, employee, or agent of the Company (or is or was serving at the request of the Company as a director, officer, employee, or agent of another corporation, partnership, joint venture,trust, or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, or investigative, by reason of the factthat Indemnitee was a director or officer of the Company or serving in any other capacity referred to herein. 

 

6. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice of the commencement of any action, suit, or proceeding,Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof. Indemnitee shall also provide to the Company such information and cooperation as the Company mayreasonably require to assist in the defense of such action, suit, or proceeding. With respect to any such action, suit, or proceeding as to which Indemnitee notifies the Company of the commencement thereof: 

 

A. The Company will be entitled to participate therein at its own expense.

 

B. Except as otherwise provided below, to the extent that itmay wish, the Company shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense thereof, the Company will not be liable toIndemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof except as otherwise provided below. Indemnitee shall have the right to employ its counsel in such action,suit, or proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has beenauthorized by the Company, (ii) Indemnitee and the Company 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 (iii) the Company shall not infact have employed counsel to assume the defense of such action, in each of which cases the reasonable fees and expenses of such counsel of Indemnitee shall be at the expense of the Company. The Company shall not be entitled to assume the defense ofany action, suit, or proceeding brought by or on behalf of the Company. 

 

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 the Company’s written consent. The Company shall not settle any action or claimin any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Company nor Indemnitee will unreasonably withhold its consent to any proposed settlement. 

 
Indemnification Agreement 3 6/13/2005

7. Advancement and Repayment of Expenses. 

 

A. In the event that Indemnitee employs his or her own counsel pursuant toSection 6(B)(i), (ii), or (iii) above, the Company shall advance to Indemnitee, prior to any final disposition of any threatened or pending action, suit, or proceeding, whether civil, criminal, administrative, or investigative, any and allreasonable expenses (including legal fees and expenses) incurred in investigating or defending any such action, suit, or proceeding within ten (10) days after receiving copies of invoices presented to Indemnitee for such expenses. 

 

B. Indemnitee agrees and undertakes that Indemnitee will reimburse theCompany for all expenses paid by the Company to Indemnitee pursuant to Section 7(A) hereof in the event and only to the extent that it shall be ultimately determined that Indemnitee is not entitled, under the provisions of the Code, the Bylaws, thisAgreement, or otherwise, to be indemnified by the Company for such expenses. 

 

8. Enforcement. 

 

A. TheCompany expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Company hereby in order to induce Indemnitee to continue as a director or officer of the Company, and acknowledges thatIndemnitee is relying upon this Agreement in continuing in such capacity. 

 

B. In the event Indemnitee is required to bring any action to enforce rights or to collect monies due under this Agreement and is successful in such action, the Company shall reimburse Indemnitee for all ofIndemnitee’s reasonable fees and expenses in bringing and pursuing such action. 

 

9. Nonexclusivity. The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate of Incorporation, itsBylaws, any agreement, any majority-in-interest vote of stockholders or disinterested directors, the Code, or otherwise, both as to action in Indemnitee’s official capacity or position, and as to action in another capacity or position whileholding such office or other position. The indemnification provided under this Agreement shall continue as to Indemnitee for any action taken or not taken while serving in an indemnified capacity even though he or she may have ceased to serve insuch capacity at the time of any action, suit, or other covered proceeding. 

 

10. Separability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable forany reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. 

 

11. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware without giving effect toconflict of laws principles. 

 

12. Binding Effect. ThisAgreement shall be binding upon and inure to the benefit of Indemnitee and the Company, and their successors and assigns. 

 
Indemnification Agreement 4 6/13/2005

13. Amendment and Termination. No amendment, modification, termination, or cancellation of thisAgreement shall be effective unless in writing signed by both parties hereto. 

 

14. 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 on the date of such receipt, or (ii) ifmailed by domestic certified or registered mail with postage prepaid, on the fifth business day after the date postmarked. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified bywritten notice. 

 

IN WITNESS WHEREOF, the parties hereto haveexecuted this Agreement on and as of the day and year first above written. 

 
MACROMEDIA, INC.By: 
 
Name: Elizabeth A. NelsonTitle: Chief Financial Officer, Office of the PresidentAddress: 601 Townsend Street  San Francisco, CA 94103By: 
 
[Insert name], IndemniteeAddress: 
 
  
 

 
Indemnification Agreement 5 6/13/2005