exv10w01



 





EXHIBIT 10.01




INTERWOVEN, INC.




INDEMNITY AGREEMENT




     This Indemnity Agreement (the “Agreement”), dated as of                      , is made by and between
Interwoven, Inc., a Delaware corporation (the “Company”), and                     
(the “Indemnitee”), who is an Indemnifiable Person, as defined in Section 1.6 of this Agreement.



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
relationship to the compensation of such representatives;



     B. The members of the Board of Directors of the Company (the “Board”), based on their
experience as business managers, have concluded that to retain and attract talented and experienced
individuals to serve as representatives of the Company, and to encourage such individuals to take
the business risks necessary for the success of the Company, it is necessary for the Company to
contractually indemnify them, and to assume for itself maximum liability for Expenses and Other
Liabilities in connection with claims against such representatives in connection with their service
to the Company;



     C. Section 145 of the Delaware General Corporation Law, under which the Company is organized
(“Section 145” of the “Delaware Law”), 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, partnerships, joint ventures,
trusts or other enterprises, and expressly provides that the indemnification provided by Section
145 is not exclusive; and



     D. The Company desires and has requested that Indemnitee serve or continue to serve as a
representative of the Company free from undue concern for claims for damages arising out of or
related to Indemnitee’s services to the Company.



AGREEMENT




     NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:



     1. Definitions. For purposes of this Agreement, the following terms have the meanings
as set forth below:



          1.1 An “Affiliate” of the Company is any corporation, partnership, limited liability company,
joint venture, trust or other enterprise for which Indemnitee is, was or will be
serving as a director, officer, trustee, manager, member, partner, employee, agent, attorney,



 









 




consultant, fiduciary, or in any other similar capacity at the request, election or direction of
the Company, and including, but not limited to, any employee benefit plan of the Company.




          1.2 A “Change in Control” means the earliest to occur after the date of the Agreement of any
of the following events:



               (a) Acquisition of Stock by Third Party. Any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a
Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or Subsidiary, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company representing 20% or more of the total
voting power represented by the Company’s then-outstanding capital stock;



               (b) Change in Board of Directors. During any period of two consecutive years,
individuals who at the beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by the Company’s stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;



               (c) Corporate Transactions. The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or consolidation that
would result in the outstanding capital stock of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into capital stock
of the surviving entity) at least 80% of the total voting power represented by the capital stock of
the Company or such surviving entity outstanding immediately after such merger or consolidation; or



               (d) Liquidation. The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all of the Company’s assets.



          1.3 References to the “Company” in the context of Indemnitee’s service to, for or on behalf of
the Company, shall include any Subsidiary and/or Affiliate of the Company for which Indemnitee
serves as an Indemnifiable Person; in addition, the term “Company” includes, in the event of a
Change in Control, (i) the resulting corporation, and (ii) any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers
and employees or agents, so that if Indemnitee is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture trust
or other enterprise, Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.



          1.4 “Expenses” includes all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and related disbursements, and



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other out-of-pocket costs), paid or incurred by Indemnitee in connection with either the investigation,
defense or appeal of, or being a witness in a Proceeding, 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.




          1.5 An “Indemnifiable Event” is any event or occurrence related to Indemnitee’s service for
the Company as an Indemnifiable Person, or by reason of anything done or not done, or any act or
omission, by Indemnitee in any such capacity.



          1.6 An “Indemnifiable Person” is any person who is or was a director, officer, employee,
attorney, trustee, manager, member, partner, consultant or other agent or fiduciary of the Company.



          1.7 “Independent Counsel” means legal counsel that has not performed services for the Company
or Indemnitee in the five years preceding the time in question and that would not, under applicable
standards of professional conduct, have a conflict of interest in representing either the Company
or Indemnitee.



          1.8 “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 such judgments, fines, ERISA (or other benefit
plan) related excise taxes or penalties, or amounts paid in settlement.



          1.9 A “Proceeding” includes any threatened, pending, or completed action, suit or other
proceeding, whether civil, criminal, administrative, investigative, legislative or any other type
whatsoever, formal or informal, including any arbitration or other alternative dispute resolution
and including any appeal of any of the foregoing.



          1.10 A “Subsidiary” of the Company is any corporation of which more than 50% of the
outstanding voting securities is owned directly by the Company.



     2. Agreement to Serve. Indemnitee agrees to serve and/or continue to serve the
Company as an Indemnifiable Person, in the capacity or capacities in which Indemnitee currently
serves as an Indemnifiable Person, and any additional capacity in which Indemnitee may agree to
serve, at the will of the Company (or under separate agreement, if such agreement exists),
faithfully and to the best of Indemnitee’s ability, until such time as Indemnitee’s service in a
particular capacity shall end according to the terms of an agreement, or in accordance with the
applicable provisions of the Company’s Certificate of Incorporation or Bylaws, governing law, or
otherwise; provided, however, that Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligation that Indemnitee may have assumed apart from this
Agreement) and that the Company shall have no obligation under this Agreement to continue to employ
Indemnitee in such capacity or capacities.



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     3. Directors’ and Officers’ Insurance.



          3.1 Reasonable Efforts. So long as Indemnitee shall continue to serve the Company as
an Indemnifiable Person and thereafter so long as Indemnitee shall be subject to any possible claim
or threatened, pending or completed Proceeding as a result of an Indemnifiable Event, the Company
shall use reasonable efforts to maintain in full force and effect for the benefit of Indemnitee as
an insured (i) liability insurance issued by one or more reputable insurers and having the policy
amount and deductible deemed appropriate by the Board and providing in all respects coverage at
least comparable to and in the same amount as that being provided to the Chairman of the Board, the
Chief Executive Officer or Chief Financial Officer of the Company when such insurance is purchased,
and (ii) any replacement or substitute policies issued by one or more reputable insurers providing
in all respects coverage at least comparable to and in the same amount as that being provided to
the Chairman of the Board, the Chief Executive Officer or Chief Financial Officer of the Company
when such replacement or substitute policies are purchased (“D&O Insurance”). The purchase,
establishment and maintenance of any such insurance or other arrangements shall not in any way
limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement
except as expressly provided herein, and the execution and delivery of this Agreement by the
Company and Indemnitee shall not in any way limit or affect the rights and obligations of the
Company or the other party or parties thereto under any such insurance or other arrangement.



          3.2 Good Faith Determination. Notwithstanding the foregoing, the Company shall have
no obligation to obtain or maintain D&O 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, the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit, or Indemnitee is covered by similar insurance maintained
by a Subsidiary or Affiliate of the Company.



     4. Mandatory Indemnification.



          4.1 Agreement to Indemnify. In the event 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 by reason of
an Indemnifiable Event, the Company shall indemnify Indemnitee from and against any and all
Expenses and Other Liabilities incurred by Indemnitee in connection with (including in preparation
for) such Proceeding to the fullest extent not prohibited by the provisions of the Company’s
Certificate of Incorporation, Bylaws and Delaware Law, as these may be amended from time to time,
but only to the extent that such amendments permit the Company to provide broader indemnification
rights than the Certificate of Incorporation, Bylaws or Delaware Law permitted prior to the
adoption of such amendment.



          4.2 Exception for Amounts Covered by Directors’ and Officers’ Insurance.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) to the extent such have been paid
directly to Indemnitee by D&O Insurance.



          4.3 Change in Law. In the event of any change, after the date of this Agreement, in
any applicable law, statute or rule which expands the Company’s right, as a Delaware corporation,
to indemnify an Indemnifiable Person, such changes shall be, ipso facto, within the purview of
Indemnitee’s rights and Company’s obligations, under this Agreement. In



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the event of any change in any applicable law, statute or rule which narrows the Company’s right, as a Delaware corporation,
to indemnify an Indemnifiable Person, such changes, to the extent required by such law, statute or
rule to be applied to this Agreement, shall have the effect on this Agreement and the parties’
rights and obligations hereunder as is required by such law, statute or rule.




     5. Partial Indemnification and Contribution.



          5.1 Partial Indemnification. If 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 the total amount of such Expenses or
Liabilities, the Company shall nevertheless indemnify Indemnitee for such total amount except as to
the portion thereof to which Indemnitee is not entitled by the provisions of the Company’s Bylaws
or Delaware Law. In any review or Proceeding to determine the extent of indemnification, the
Company shall bear the burden to establish, by clear and convincing evidence, the lack of a
successful resolution of a particular claim, issue or matter and which amounts sought in indemnity
are allocable to claims, issues or matters which were not successfully resolved.



          5.2 Contribution. If the Indemnitee is not entitled to the indemnification provided
in Section 4 for any reason other than the statutory limitations set forth in Delaware Law, 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 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, judgments, fines or settlement amounts. The Company
agrees that it would not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or any other method of allocation that does not take account of
the foregoing equitable considerations.



     6. Mandatory Advancement of Expenses. If requested by Indemnitee, the Company shall
advance all Expenses reasonably incurred by Indemnitee in connection with (including in preparation
for) a Proceeding to which Indemnitee is a party or is threatened to be made a party by reason of
the fact that Indemnitee is or was an Indemnifiable Person or by reason of anything done or not
done by him in any such capacity. Indemnitee hereby undertakes to
repay such amounts advanced if, and only if and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of
this Agreement, the Company’s Certificate of Incorporation or Bylaws, Delaware Law or otherwise.
The advances to be made hereunder shall be paid by the Company to Indemnitee within thirty (30)
days following delivery of a written request therefor by Indemnitee



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to the Company. Indemnitee’s
undertaking to repay any Expenses advanced to Indemnitee hereunder shall be unsecured and shall not
be subject to the accrual or payment of any interest thereon.




     7. Notice and Other Indemnification Procedures.



          7.1 Notification. Promptly following the time that Indemnitee has notice of the
commencement of or the threat of commencement of any Proceeding, Indemnitee shall, if Indemnitee
believes that indemnification or advancement of Expenses may be sought from the Company under this
Agreement with respect to such Proceeding, notify the Company of the commencement or threat of
commencement thereof. However, a failure to so notify the Company promptly following Indemnitee’s
receipt of such notice shall not relieve the Company from any liability that it may have to
Indemnitee except to the extent that the Company is materially prejudiced in its defense of such
Proceeding as a result of such failure.



          7.2 Insurance and Other Matters. If the Company has D&O Insurance in effect at the
time a notice of the commencement of a Proceeding pursuant to Section 7.1 hereof is received, 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 reasonable 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 insurance policies.



          7.3 Assumption of Defense. In the event the Company shall be obligated to advance the
Expenses for any Proceeding against Indemnitee, the Company shall be entitled to assume the defense
of such Proceeding upon delivery of written notice to Indemnitee of its election to assume the
defense of such Proceeding, and upon Indemnitee’s approval of counsel designated by the Company
(which approval shall not be unreasonably withheld) and retention of such counsel by the Company.
Following delivery of such written 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 and expenses of counsel subsequently incurred by Indemnitee with respect to the same
Proceeding; provided that (i) Indemnitee shall have the right to employ his own counsel in any such
Proceeding at Indemnitee’s expense; (ii) Indemnitee shall have the right to employ his own counsel
in connection with any such Proceeding, at the expense of the Company, if such counsel serves in a
review, observer, advice and counseling capacity and does not otherwise materially control or
participate in the defense of such Proceeding; and (iii) if (x) the employment of counsel by
Indemnitee has been previously authorized by the Company, (y) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense and have notified the Board in writing of such conflict, or (z) the
Company fails to employ counsel to assume the defense of such Proceeding, then the fees and
expenses of Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to
the terms of this Agreement.



          7.4 Settlement. The Company shall not be liable to indemnify Indemnitee under this
Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the
Company’s written consent. Neither the Company nor any Subsidiary or Affiliate of the Company
shall enter into a settlement of any Proceeding that might result in the imposition of any Expense,
Other Liability, penalty, limitation or detriment on Indemnitee,



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whether indemnifiable under this
Agreement or otherwise, without Indemnitee’s written consent. Neither the Company nor Indemnitee
shall unreasonably withhold consent from any settlement of any Proceeding.




     8. Determination of Right to Indemnification.



          8.1 Success on the Merits or Otherwise. To the extent Indemnitee has been successful
on the merits or otherwise in defense of any Proceeding referred to in Section 4.1 of this
Agreement or in the defense of any claim, issue or matter described therein, the Company shall
indemnify Indemnitee against Expenses actually and reasonably incurred by him in connection with
the investigation, defense or appeal of such proceeding, or such claim, issue or matter, as the
case may be.



          8.2 Indemnification in Other Situations. In the event that Section 8.1 above is
inapplicable, or does not apply to the entire proceeding, the Company shall nonetheless indemnify
Indemnitee unless the Company shall prove by clear and convincing evidence to a forum listed in
Section 8.3 below that Indemnitee has not met the applicable standard of conduct required to
entitle Indemnitee to such indemnification.



          8.3 Forum. Indemnitee shall be entitled to select the forum in which the validity of
the Company’s claim under Section 8.2 hereof that Indemnitee is not entitled to indemnification
will be heard from among the following:



               (a) A quorum of the Board consisting of directors who are not parties to the Proceeding for
which indemnification is being sought;



               (b) 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



               (c) Independent Counsel selected by Indemnitee, and approved by the Board, which approval may
not be unreasonably withheld, which counsel shall make such determination in a written opinion.



               The selected forum shall be referred to herein as the “Reviewing Party”. Notwithstanding the
foregoing, following any Change in Control, the Reviewing Party shall be Independent Counsel
selected in the manner provided in (c) above.



          8.4 Submission of Information to the Reviewing Party. As soon as practicable, and in
no event later than thirty (30) days after receipt by the Company of written notice of Indemnitee’s
choice of forum pursuant to Section 8.3 above, the Company and Indemnitee shall each submit to the
Reviewing Party such information as they believe is appropriate for the Reviewing Party to
consider. The Reviewing Party shall arrive at its decision
within a reasonable period of time following the receipt of all such information from the
Company and Indemnitee but in no even later than thirty (30) days following the receipt of all such
information, provided that the time by which the Reviewing Party must reach a decision may be
extended by mutual agreement of the Company and Indemnitee. All expenses associated



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with the
process set forth in this Section 8.4, including but not limited to the Expenses of the Reviewing
Party, shall be paid by the Company.




          8.5 Delaware Court of Chancery. If the forum listed in Section 8.3 hereof selected by
Indemnitee determines that Indemnitee is entitled to indemnification with respect to a Proceeding,
such determination shall be final and binding on the Company. If the forum listed in Section 8.3
hereof selected by Indemnitee determines that Indemnitee is not entitled to indemnification with
respect to a specific proceeding, Indemnitee shall have the right to apply to the Delaware Court of
Chancery, the court in which that proceeding is or was pending or any other court of competent
jurisdiction, for the purpose of determining whether Indemnitee is entitled to indemnification and
enforcing Indemnitee’s right to indemnification pursuant to the Agreement.



          8.6 Expenses. Notwithstanding any other provision in this Agreement to the contrary,
the Company shall indemnify Indemnitee against all Expenses incurred by Indemnitee in connection
with any hearing or Proceeding under this Section 8 involving Indemnitee and against all Expenses
and Other Liabilities incurred by Indemnitee in connection with any other Proceeding between the
Company and Indemnitee involving the interpretation or enforcement of the rights of Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material
claims and/or defenses of Indemnitee in any such Proceeding was frivolous or made in bad faith.



          8.7 Determination of Good Faith. For purposes of any determination of whether
Indemnitee acted in “good faith,” Indemnitee shall be deemed to have acted in good faith if in
taking or failing to take the action in question 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 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 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
Indemnitee is entitled to be indemnified hereunder, or to advancement of Expenses, the Reviewing
Party or court shall presume that Indemnitee has satisfied the applicable standard of conduct and
is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of
proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is
not so entitled. The provisions of this Section 8.7 shall not be deemed to be exclusive or to
limit in any way the other circumstances in which 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 Indemnitee for purposes of determining the right to indemnification
hereunder.



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     9. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:



          9.1 Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee
with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way
of defense, except with respect to Proceedings (a) specifically authorized by the Board, (b)
brought to establish or enforce a right to indemnification and/or advancement of Expenses under
this Agreement, the Company’s Certificate of Incorporation or Bylaws, or any statute or law or
otherwise, or (c) to discharge 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



          9.2 Unauthorized Settlements. To indemnify Indemnitee hereunder for any amounts paid
in settlement of a Proceeding unless the Company consents in advance in writing to such settlement,
which consent shall not be unreasonably withheld;



          9.3 Section 16(b) Actions. To indemnify Indemnitee on account of any suit in which
judgment is rendered 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) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state
or local statutory law; or



          9.4 Unlawful Indemnification. To indemnify Indemnitee for Other Liabilities if a
final decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful or if such indemnification is otherwise prohibited by law. In this
respect, the Company and Indemnitee have been advised that the Securities and Exchange Commission
takes the position that indemnification for liabilities arising under the federal securities law is
against public policy and is, therefore, unenforceable and that claims for indemnification should
be submitted to appropriate courts for adjudication.



     10. 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 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 Indemnitee’s official capacity and as to acts or omissions in another capacity
while serving the Company as an Indemnifiable Person, and Indemnitee’s rights hereunder shall
continue after Indemnitee has ceased serving the Company as an Indemnifiable Person and shall inure
to the benefit of the heirs, executors and administrators of Indemnitee.



     11. General Provisions.



          11.1 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 Indemnitee to the fullest extent now or hereafter permitted by law, except as
expressly limited herein.



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          11.2 Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (a) 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 (b) 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 11.1 hereof.



          11.3 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) nor shall such waiver constitute a continuing waiver.



          11.4 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 Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary or desirable to secure
such rights and to enable the Company effectively to bring suit to enforce such rights.



          11.5 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.



          11.6 Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given if (a) delivered by hand and a receipt
is provided by the party to whom such communication is delivered, (b) mailed by certified or
registered mail with postage prepaid, return receipt requested, on the signing by the recipient of
an acknowledgement of receipt form accompanying delivery through the U.S. mail, (c) by personal
service by a process server, (d) delivered to the recipient’s address by overnight delivery (e.g.,
FedEx, UPS or DHL) or other commercial delivery service, (e) delivered by facsimile or (f)
delivered electronically by email. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice complying with the
provisions of this Section 11.5. Delivery of communications to the Company with respect to this
Agreement shall be sent to the attention of the Company’s General Counsel.



          11.7 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 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 nor of a Reviewing Party to
have made a determination as to whether 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
Indemnitee has not met such standard of conduct or did not have such



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belief, prior to the
commencement of Proceedings by Indemnitee to secure a judicial determination by exercising
Indemnitee’s rights under Section 8.5 of this Agreement shall be a defense to Indemnitee’s claim or
create a presumption that 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.




          11.8 Survival of Rights. The rights conferred on Indemnitee by this Agreement shall
continue after Indemnitee has ceased to serve the Company as an Indemnifiable Person and shall
inure to the benefit of Indemnitee’s heirs, executors and administrators.



          11.9 Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, Indemnitee shall be entitled, if 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 Indemnitee may elect to pursue.



          11.10 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.



          11.11 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 or interpretation thereof.



          11.12 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.



          11.13 Consent to Jurisdiction. The Company and 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.



[Remainder of Page Intentionally Left Blank]




11









 





     The parties hereto have entered into this Indemnity Agreement effective as of the date first
written above.



	 	 	 	 	 	 	 
	 	 	 	 	INTERWOVEN, INC.
	 	 	Address:	 	160 East Tasman Drive

San Jose, CA 95134
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Its:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	INDEMNITEE:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 





[Signature Page to Interwoven, Inc. Indemnity Agreement]