zendesk-indemnificationa






1  ZENDESK, INC.  Indemnification Agreement  (For Directors of a Delaware Corporation)  This Indemnification Agreement (“Agreement”) is made as of ________________ by  and between Zendesk, Inc.  a Delaware corporation (the “Company”), and ____________  (“Indemnitee”).  RECITALS  WHEREAS, the Company desires to attract and retain the services of highly qualified  individuals, such as Indemnitee, to serve the Company;  WHEREAS, in order to induce Indemnitee to [provide or continue to provide] services to  the Company, the Company wishes to provide for the indemnification of, and advancement of  expenses to, Indemnitee to the maximum extent permitted by law;  WHEREAS, the Certificate of Incorporation (the “Charter”) and the Bylaws (the  “Bylaws”) of the Company require indemnification of the officers and directors of the Company,  and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law  of the State of Delaware (the “DGCL”);   WHEREAS, the Charter, the Bylaws and the DGCL expressly provide that the  indemnification provisions set forth therein are not exclusive, and thereby contemplate that  contracts may be entered into between the Company and members of the board of directors,  officers and other persons with respect to indemnification;  WHEREAS, the Board of Directors of the Company (the “Board”) has determined that  the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is  detrimental to the best interests of the Company’s stockholders;  WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself  to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted  by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so  that they will [serve or continue to serve] the Company free from undue concern that they will  not be so indemnified;   WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification  provided in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not  be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;  and  [WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided  by [Name of Fund/Sponsor] which Indemnitee and [Name of Fund/Sponsor] intend to be  secondary to the primary obligation of the Company to indemnify Indemnitee as provided in this  Agreement, with the Company’s acknowledgment and agreement to the foregoing being a  material condition to Indemnitee’s willingness to [serve or continue to serve] on the Board.]  Exhibit 10.1 





 






  2    NOW, THEREFORE, in consideration of the premises and the covenants contained  herein, the Company and Indemnitee do hereby covenant and agree as follows:    Section 1. Services to the Company.  Indemnitee agrees to serve as a director of the  Company.  Indemnitee may at any time and for any reason resign from such position (subject to  any other contractual obligation or any obligation imposed by law), in which event the Company  shall have no obligation under this Agreement to continue Indemnitee in such position.  This  Agreement shall not be deemed an employment contract between the Company (or any of its  subsidiaries or any Enterprise) and Indemnitee.     Section 2. Definitions.    As used in this Agreement:    (a) “Affiliate” and “Associate” shall have the respective meanings ascribed to  such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange  Act of 1934, as amended, as in effect on the date of this Agreement; provided, however, that no  Person who is a director or officer of the Company shall be deemed an Affiliate or an Associate  of any other director or officer of the Company solely as a result of his or her position as director  or officer of the Company.  (b) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed  to “Beneficially Own” and have “Beneficial Ownership” of, any securities:  (i) which such Person or any of such Person’s Affiliates or Associates,  directly or indirectly, Beneficially Owns (as determined pursuant to Rule 13d-3 of the Rules  under the Exchange Act, as in effect on the date of this Agreement);  (ii) which such Person or any of such Person’s Affiliates or Associates,  directly or indirectly, has: (A) the legal, equitable or contractual right or obligation to acquire  (whether directly or indirectly and whether exercisable immediately or only after the passage of  time, compliance with regulatory requirements, satisfaction of one or more conditions (whether  or not within the control of such Person) or otherwise) upon the exercise of any conversion  rights, exchange rights, rights, warrants or options, or otherwise; (B) the right to vote pursuant to  any agreement, arrangement or understanding (whether or not in writing); or (C) the right to  dispose of pursuant to any agreement, arrangement or understanding (whether or not in writing)  (other than customary arrangements with and between underwriters and selling group members  with respect to a bona fide public offering of securities);  (iii) which are Beneficially Owned, directly or indirectly, by any other Person  (or any Affiliate or Associate thereof) with which such Person or any of such Person’s Affiliates  or Associates has any agreement, arrangement or understanding (whether or not in writing)  (other than customary agreements with and between underwriters and selling group members  





 






  3    with respect to a bona fide public offering of securities) for the purpose of acquiring, holding,  voting or disposing of any securities of the Company; or  (iv) that are the subject of a derivative transaction entered into by such Person  or any of such Person’s Affiliates or Associates, including, for these purposes, any derivative  security acquired by such Person or any of such Person’s Affiliates or Associates that gives such  Person or any of such Person’s Affiliates or Associates the economic equivalent of ownership of  an amount of securities due to the fact that the value of the derivative security is explicitly  determined by reference to the price or value of such securities, or that provides such Person or  any of such Person’s Affiliates or Associates an opportunity, directly or indirectly, to profit or to  share in any profit derived from any change in the value of such securities, in any case without  regard to whether (A) such derivative security conveys any voting rights in such securities to  such Person or any of such Person’s Affiliates or Associates; (B) the derivative security is  required to be, or capable of being, settled through delivery of such securities; or (C) such Person  or any of such Person’s Affiliates or Associates may have entered into other transactions that  hedge the economic effect of such derivative security;   Notwithstanding the foregoing, no Person engaged in business as an underwriter of  securities shall be deemed the Beneficial Owner of any securities acquired through such Person’s  participation as an underwriter in good faith in a firm commitment underwriting.    (c) A “Change in Control” shall be deemed to occur upon the earliest to occur  after the date of this Agreement of any of the following events:   (i) Acquisition of Stock by Third Party. Any Person is or becomes the  Beneficial Owner (as defined above), directly or indirectly, of securities of the Company  representing fifty percent (50%) or more of the combined voting power of the Company’s then  outstanding securities unless the change in relative Beneficial Ownership of the Company’s  securities by any Person results solely from a reduction in the aggregate number of outstanding  shares of securities entitled to vote generally in the election of directors, provided that a Change  of Control shall be deemed to have occurred if subsequent to such reduction such Person  becomes the Beneficial Owner, directly or indirectly, of any additional securities of the  Company conferring upon such Person any additional voting power;  (ii) Change in Board of Directors. During any period of two (2) consecutive  years (not including any period prior to the execution of this Agreement), individuals who at the  beginning of such period constitute the Board, and any new director (other than a director  designated by a person who has entered into an agreement with the Company to effect a  transaction described in Sections 2(c)(i), 2(c)(iii) or 2(c)(iv)) whose election by the Board or  nomination for election by the Company’s stockholders was approved by a vote of at least two- thirds 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 at least a majority of the members of the Board;  (iii) Corporate Transactions. The effective date of a merger or consolidation of  the Company with any other entity, other than a merger or consolidation which would result in  the voting securities of the Company outstanding immediately prior to such merger or  





 






  4    consolidation continuing to represent (either by remaining outstanding or by being converted into  voting securities of the surviving or successor entity) more than 50% of the combined voting  power of the voting securities of the surviving or successor entity outstanding immediately after  such merger or consolidation and with the power to elect at least a majority of the board of  directors or other governing body of such surviving or successor entity;  (iv) Liquidation. The approval by the stockholders of the Company of a  complete liquidation of the Company or an agreement for the sale, lease, exchange or other  transfer by the Company, in one or a series of related transactions, of all or substantially all of  the Company’s assets; and  (v) Other Events. There occurs any other event of a nature that would be  required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a  response to any similar item on any similar schedule or form) promulgated under the Securities  Exchange Act of 1934, as amended, whether or not the Company is then subject to such  reporting requirement.  (d)  “Corporate Status” describes the status of a person as a current or former  director of the Company or current or former director, manager, partner, officer, employee, agent  or trustee of any other Enterprise which such person is or was serving at the request of the  Company.  (e) “Enforcement Expenses” shall include all reasonable attorneys’ fees, court  costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding  costs, telephone charges, postage, delivery service fees, and all other out-of-pocket  disbursements or expenses of the types customarily incurred in connection with an action to  enforce indemnification or advancement rights, or an appeal from such action.  Expenses,  however, shall not include fees, salaries, wages or benefits owed to Indemnitee.  (f) “Enterprise” shall mean any corporation (other than the Company),  partnership, joint venture, trust, employee benefit plan, limited liability company, or other legal  entity of which Indemnitee is or was serving at the request of the Company as a director,  manager, partner, officer, employee, agent or trustee.  (g) “Expenses” shall include all reasonable attorneys’ fees, court costs,  transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs,  telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or  expenses of the types customarily incurred in connection with prosecuting, defending, preparing  to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise  participating in, a Proceeding or an appeal resulting from a Proceeding.  Expenses, however,  shall not include amounts paid in settlement by Indemnitee, the amount of judgments or fines  against Indemnitee or fees, salaries, wages or benefits owed to Indemnitee.  (h) “Independent Counsel” means a law firm, or a partner (or, if applicable,  member or shareholder) of such a law firm, that is experienced in matters of Delaware  corporation law and neither presently is, nor in the past five (5) years has been, retained to  represent: (i) the Company, any subsidiary of the Company, any Enterprise or Indemnitee in any  





 






  5    matter material to any such party; or (ii) 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 rights under this Agreement.  The Company agrees to pay  the reasonable fees and expenses of the Independent Counsel referred to above and to fully  indemnify such counsel against any and all expenses, claims, liabilities and damages arising out  of or relating to this Agreement or its engagement pursuant hereto.  (i) “Person” shall mean (i) an individual, a corporation, a partnership, a  limited liability company, an association, a joint stock company, a trust, a business trust, a  government or political subdivision, any unincorporated organization, or any other association or  entity including any successor (by merger or otherwise) thereof or thereto, and (ii) a “group” as  that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as  amended.  (j) The term “Proceeding” shall include any threatened, pending or completed  action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,  administrative hearing or any other actual, threatened or completed proceeding, whether brought  in the right of the Company or otherwise and whether of a civil, criminal, administrative,  regulatory or investigative nature, and whether formal or informal, in which Indemnitee was, is  or will be involved as a party or otherwise by reason of the fact that Indemnitee is or was a  director of the Company or is or was serving at the request of the Company as a director,  manager, partner, officer, employee, agent or trustee of any Enterprise or by reason of any action  taken by Indemnitee or of any action taken on his or her part while acting as a director of the  Company or while serving at the request of the Company as a director, manager, partner, officer,  employee, agent or trustee of any Enterprise, in each case whether or not serving in such capacity  at the time any liability or expense is incurred for which indemnification, reimbursement or  advancement of expenses can be provided under this Agreement; provided, however, that the  term “Proceeding” shall not include any action, suit or arbitration, or part thereof, initiated by  Indemnitee to enforce Indemnitee’s rights under this Agreement as provided for in Section 12(a)  of this Agreement.  Section 3. Indemnity in Third-Party Proceedings.  The Company shall indemnify  Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made, a  party to or a participant in any Proceeding, other than a Proceeding by or in the right of the  Company to procure a judgment in its favor.  Pursuant to this Section 3, Indemnitee shall be  indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in  settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection  with such Proceeding or any claim, issue or matter therein, if 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 and, in the case of a criminal proceeding, had no reasonable cause to believe that his or  her conduct was unlawful.    Section 4. Indemnity in Proceedings by or in the Right of the Company.  The  Company shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or  is threatened to be made, a party to or a participant in any Proceeding by or in the right of the  





 






  6    Company to procure a judgment in its favor.  Pursuant to this Section 4, Indemnitee shall be  indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her  behalf in connection with such Proceeding or any claim, issue or matter therein, if 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.  No indemnification for Expenses shall be made under this  Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally  adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware  Court of Chancery (the “Delaware Court”) shall determine upon application that, despite the  adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and  reasonably entitled to indemnification for such expenses as the Delaware Court shall deem  proper.  Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly  Successful.  Notwithstanding any other provisions of this Agreement and except as provided in  Section 7, to the extent that Indemnitee is a party to or a participant in any Proceeding and is  successful in such Proceeding or in defense of any claim, issue or matter therein, the Company  shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her  in connection therewith.  If Indemnitee is not wholly successful in such Proceeding but is  successful as to one or more but less than all claims, issues or matters in such Proceeding, the  Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by  Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or  matter.  For purposes of this Section and without limitation, the termination of any claim, issue  or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a  successful result as to such claim, issue or matter.  Section 6. Reimbursement for Expenses of a Witness or in Response to a Subpoena.   Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason  of his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a  party and is not threatened to be made a party or (ii) receives a subpoena with respect to any  Proceeding to which Indemnitee is not a party and is not threatened to be made a party, the  Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by him  or her or on his or her behalf in connection therewith.      Section 7. Exclusions.  Notwithstanding any provision in this Agreement to the  contrary, the Company shall not be obligated under this Agreement:    (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which  advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually  received such amounts under any insurance policy, contract, agreement or otherwise; provided  that the foregoing shall not i apply to any personal or umbrella liability insurance maintained by  Indemnitee, or, (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section  13(c);  (b) to indemnify for an accounting of profits made from the purchase and sale  (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section  16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state  





 






  7    statutory law or common law, or from the purchase or sale by Indemnitee of such securities in  violation of Section 306 of the Sarbanes-Oxley Act of 2002 (“SOX”);  (c) to indemnify with respect to any Proceeding, or part thereof, brought by  Indemnitee against the Company, any legal entity which it controls, any director or officer  thereof or any third party, unless (i) the Board has consented to the initiation of such Proceeding  or part thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant  to the powers vested in the Company under applicable law; provided, however, that this Section  7(d) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in an  action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification  or advancement from the Company under this Agreement or under any directors’ and officers’  liability insurance policies maintained by the Company in the suit for which indemnification or  advancement is being sought as described in Section 12; or  (d) to provide any indemnification or advancement of expenses that is  prohibited by applicable law (as such law exists at the time payment would otherwise be required  pursuant to this Agreement).  Section 8. Advancement of Expenses.  Subject to Section 9(b), the Company shall  advance, the Expenses incurred by Indemnitee in connection with any Proceeding, and such  advancement shall be made within thirty (30) days after the receipt by the Company of a  statement or statements requesting such advances (including any invoices received by  Indemnitee, which such invoices may be redacted as necessary to avoid the waiver of any  privilege accorded by applicable law) from time to time, whether prior to or after final  disposition of any Proceeding.  Advances shall be unsecured and interest free.  Advances shall be  made without regard to Indemnitee’s (i) ability to repay the expenses, (ii) ultimate entitlement to  indemnification under the other provisions of this Agreement, and (iii) entitlement to and  availability of insurance coverage, including advancement, payment or reimbursement of defense  costs, expenses or covered loss under the provisions of any applicable insurance policy  (including, without limitation, whether such advancement, payment or reimbursement is  withheld, conditioned or delayed by the insurer(s)).  Indemnitee shall qualify for advances upon  the execution and delivery to the Company of this Agreement which shall constitute an  undertaking providing that Indemnitee undertakes to the fullest extent required by law to repay  the advance if and to the extent that it is ultimately determined by a court of competent  jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be  indemnified by the Company.  No other form of undertaking shall be required.  The right to  advances under this paragraph shall in all events continue until final disposition of any  Proceeding, including any appeal therein.  Nothing in this Section 8 shall limit Indemnitee’s right  to advancement pursuant to Section 12(e) of this Agreement.   Section 9. Procedure for Notification and Defense of Claim.  (a) To obtain indemnification under this Agreement, Indemnitee shall submit  to the Company a written request therefor specifying the basis for the claim, the amounts for  which Indemnitee is seeking payment under this Agreement, and all documentation related  thereto as reasonably requested by the Company.    





 






  8    (b) In the event that the Company shall be obligated hereunder to provide  indemnification for or make any advancement of Expenses with respect to any Proceeding, the  Company shall be entitled to assume the defense of such Proceeding, or any claim, issue or  matter therein, with counsel approved by Indemnitee (which approval shall not be unreasonably  withheld or delayed) upon the delivery to Indemnitee of written notice of the Company’s election  to do so.  After delivery of such notice, approval of such counsel by Indemnitee and the retention  of such counsel by the Company, the Company will not be liable to Indemnitee under this  Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf  of Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the  right to employ separate counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A)  the employment of separate counsel by Indemnitee has been previously authorized by the  Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of  interest between the Company and Indemnitee in the conduct of such defense, (C) the Company  shall not continue to retain such counsel to defend such Proceeding, or (D) a Change in Control  shall have occurred, then the fees and expenses actually and reasonably incurred by Indemnitee  with respect to his or her separate counsel shall be Expenses hereunder.    (c) In the event that the Company does not assume the defense in a  Proceeding pursuant to paragraph (b) above, then the Company will be entitled to participate in  the Proceeding at its own expense.  (d) The Company shall not be liable to indemnify Indemnitee under this  Agreement for any amounts paid in settlement of any Proceeding effected without its prior  written consent (which consent shall not be unreasonably withheld or delayed).  Without limiting  the generality of the foregoing, the fact that an insurer under an applicable insurance policy  delays or is unwilling to consent to such settlement or is or may be in breach of its obligations  under such policy, or the fact that directors’ and officers’ liability insurance is otherwise  unavailable or not maintained by the Company, may not be taken into account by the Company  in determining whether to provide its consent. The Company shall not, without the prior written  consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter into  any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy  imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and  actually indemnified hereunder or (ii) with respect to any Proceeding with respect to which  Indemnitee may be or is made a party or may be otherwise entitled to seek indemnification  hereunder, does not include the full release of Indemnitee from all liability in respect of such  Proceeding.  Section 10. Procedure Upon Application for Indemnification.  (a) Upon written request by Indemnitee for indemnification pursuant to  Section 9(a), a determination, if such determination is required by applicable law, with respect to  Indemnitee’s entitlement to indemnification hereunder shall be made in the specific case by one  of the following methods:  (x) if a Change in Control shall have occurred, by Independent  Counsel in a written opinion to the Board; or (y) if a Change in Control shall not have occurred:  (i) by a majority vote of the disinterested directors, even though less than a quorum; (ii) by a  committee of disinterested directors designated by a majority vote of the disinterested directors,  even though less than a quorum; or (iii) if there are no disinterested directors or if the  





 






  9    disinterested directors so direct, by Independent Counsel in a written opinion to the Board.  For  purposes hereof, disinterested directors are those members of the Board who are not parties to  the action, suit or proceeding in respect of which indemnification is sought.  In the case that such  determination is made by Independent Counsel, a copy of Independent Counsel’s written opinion  shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to  indemnification, payment to Indemnitee shall be made within thirty (30) days after such  determination.  Indemnitee shall cooperate with the Independent Counsel or the Company, as  applicable, in making such determination with respect to Indemnitee’s entitlement to  indemnification, including providing to such counsel or the Company, upon reasonable advance  request, any documentation or information which is not privileged or otherwise protected from  disclosure and which is reasonably available to Indemnitee and reasonably necessary to such  determination.  The Company shall likewise cooperate with Indemnitee and Independent  Counsel, if applicable, in making such determination with respect to Indemnitee’s entitlement to  indemnification, including providing to such counsel and Indemnitee, upon reasonable advance  request, any documentation or information which is not privileged or otherwise protected from  disclosure and which is reasonably available to the Company and reasonably necessary to such  determination.  Any out-of-pocket costs or expenses (including reasonable attorneys’ fees and  disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the  Independent Counsel or the Company shall be borne by the Company (irrespective of the  determination as to Indemnitee’s entitlement to indemnification) and the Company hereby  indemnifies and agrees to hold Indemnitee harmless therefrom.  (b) If the determination of entitlement to indemnification is to be made by  Independent Counsel pursuant to Section 10(a), the Independent Counsel shall be selected by the  Board if a Change in Control shall not have occurred or, if a Change in Control shall have  occurred, by Indemnitee.  Indemnitee or the Company, as the case may be, may, within ten (10)  days after written notice of such selection, deliver to the Company or Indemnitee, as the case  may be, a written objection to such selection; provided, however, that such objection may be  asserted only on the ground that the Independent Counsel so selected does not meet the  requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the  objection shall set forth with particularity the factual basis of such assertion.  Absent a proper  and timely objection, the person so selected shall act as Independent Counsel.  If such written  objection is so made and substantiated, the Independent Counsel so selected may not serve as  Independent Counsel unless and until such objection is withdrawn or the Delaware Court has  determined that such objection is without merit.  If, within twenty (20) days after the later of (i)  submission by Indemnitee of a written request for indemnification pursuant to Section 9(a), and  (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel  shall have been selected without objection, either Indemnitee or the Company may petition the  Delaware Court for resolution of any objection which shall have been made by Indemnitee or the  Company to the selection of Independent Counsel and/or for the appointment as Independent  Counsel of a person selected by the court or by such other person as the court shall designate.    The person with respect to whom all objections are so resolved or the person so appointed shall  act as Independent Counsel under Section 10(a) hereof.  Upon the due commencement of any  judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, Independent  Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to  the applicable standards of professional conduct then prevailing).  





 






  10    (c) Notwithstanding anything to the contrary contained in this Agreement, the  determination of entitlement to indemnification under this Agreement shall be made without  regard to the Indemnitee’s entitlement to and availability of insurance coverage, including  advancement, payment or reimbursement of defense costs, expenses or covered loss under the  provisions of any applicable insurance policy (including, without limitation, whether such  advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).  Section 11. Presumptions and Effect of Certain Proceedings.   (a) To the extent permitted by applicable law, in making a determination with  respect to entitlement to indemnification hereunder, it shall be presumed that Indemnitee is  entitled to indemnification under this Agreement if Indemnitee has submitted a request for  indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have  the burden of proof and the burden of persuasion by clear and convincing evidence to overcome  that presumption in connection with the making of any determination contrary to that  presumption.  (b) The termination of any Proceeding or of any claim, issue or matter therein,  by judgment, order, settlement or conviction, or upon a plea of guilty, nolo contendere or its  equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself  adversely affect the right of Indemnitee to indemnification or create a presumption that  Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be  in or not opposed to the best interests of the Company or, with respect to any criminal  Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was  unlawful.  (c) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s  actions based on the records or books of account of the Company or any other Enterprise,  including financial statements, or on information supplied to Indemnitee by the directors,  officers, agents or employees of the Company or any other Enterprise in the course of their  duties, or on the advice of legal counsel for the Company or any other Enterprise or on  information or records given or reports made to the Company or any other Enterprise by an  independent certified public accountant or by an appraiser or other expert selected with  reasonable care by the Company or any other Enterprise. The provisions of this Section 11(c)  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 failure to act, of any director, manager,  partner, officer, employee, agent or trustee of the Company, any subsidiary of the Company, or  any Enterprise shall not be imputed to Indemnitee for purposes of determining the right to  indemnification under this Agreement.  Whether or not the foregoing provisions of this Section  11(c) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in  good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best  interests of the Company. Anyone seeking to overcome this presumption shall have the burden  of proof and the burden of persuasion by clear and convincing evidence.  Section 12. Remedies of Indemnitee.  





 






  11    (a) Subject to Section 12(f), in the event that (i) a determination is made  pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under  this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this  Agreement, (iii) no determination of entitlement to indemnification shall have been made  pursuant to Section 10(a) of this Agreement within sixty (60) days after receipt by the Company  of the request for indemnification for which a determination is to be made other than by  Independent Counsel, (iv) payment of indemnification or reimbursement of expenses is not made  pursuant to Section 5 or 6 or the last sentence of Section 10(a) of this Agreement within thirty  (30) days after receipt by the Company of a written request therefor (including any invoices  received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver  of any privilege accorded by applicable law) or (v) payment of indemnification pursuant to  Section 3 or 4 of this Agreement is not made within thirty (30) days after a determination has  been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an  adjudication by the Delaware Court of his or her entitlement to such indemnification or  advancement.  Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to  be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the  American Arbitration Association.  Indemnitee shall commence such proceeding seeking an  adjudication or an award in arbitration within 180 days following the date on which Indemnitee  first has the right to commence such proceeding pursuant to this Section 12(a); provided,  however, that the foregoing time limitation shall not apply in respect of a proceeding brought by  Indemnitee to enforce his or her rights under Section 5 of this Agreement.  The Company shall  not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.  (b) In the event that a determination shall have been made pursuant to Section  10(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial  proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all  respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by  reason of that adverse determination.  In any judicial proceeding or arbitration commenced  pursuant to this Section 12, the Company shall have the burden of proving Indemnitee is not  entitled to indemnification or advancement, as the case may be.  (c) If a determination shall have been made pursuant to Section 10(a) of this  Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such  determination in any judicial proceeding or arbitration commenced pursuant to this Section 12,  absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact  necessary to make Indemnitee’s statement not materially misleading, in connection with the  request for indemnification, or (ii) a prohibition of such indemnification under applicable law.  (d) The Company shall be precluded from asserting in any judicial proceeding  or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of  this Agreement are not valid, binding and enforceable and shall stipulate in any such court or  before any such arbitrator that the Company is bound by all the provisions of this Agreement.    (e) The Company shall indemnify Indemnitee to the fullest extent permitted  by law against any and all Enforcement Expenses and, if requested by Indemnitee, shall (within  thirty (30) days after receipt by the Company of a written request therefor) advance, to the extent  not prohibited by law, such Enforcement Expenses to Indemnitee, which are incurred by  





 






  12    Indemnitee in connection with any action brought by Indemnitee for indemnification or  advancement from the Company under this Agreement or under any directors’ and officers’  liability insurance policies maintained by the Company in the suit for which indemnification or  advancement is being sought.  Such written request for advancement shall include invoices  received by Indemnitee in connection with such Enforcement Expenses but, in the case of  invoices in connection with legal services, any references to legal work performed or to  expenditures made that would cause Indemnitee to waive any privilege accorded by applicable  law need not be included with the invoice.  (f) Notwithstanding anything in this Agreement to the contrary, no  determination as to entitlement to indemnification under this Agreement shall be required to be  made prior to the final disposition of the Proceeding, including any appeal therein.  Section 13. Non-exclusivity; Survival of Rights; Insurance; [Primacy of  Indemnification;] Subrogation.  (a) The rights of indemnification and to receive advancement as provided by  this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at  any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of  stockholders or a resolution of directors, or otherwise.  No amendment, alteration or repeal of  this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under  this Agreement in respect of any action taken or omitted by such Indemnitee in his or her  Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in  Delaware law, whether by statute or judicial decision, permits greater indemnification or  advancement than would be afforded currently under the Charter, Bylaws and this Agreement, it  is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater  benefits so afforded by such change.  No right or remedy herein conferred is intended to be  exclusive of any other right or remedy, and every other right and remedy shall be cumulative and  in addition to every other right and remedy given hereunder or now or hereafter existing at law  or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or  otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.  (b) To the extent that the Company maintains an insurance policy or policies  providing liability insurance for directors, managers, partners, officers, employees, agents or  trustees of the Company or of any other Enterprise, Indemnitee shall be covered by such policy  or policies in accordance with its or their terms to the maximum extent of the coverage available  for any such director, manager, partner, officer, employee, agent or trustee under such policy or  policies.  If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the  Company has director and officer liability insurance in effect, the Company shall give prompt  notice of  such claim to the insurers in accordance with the procedures set forth in the respective  policies.  The Company shall thereafter take all necessary or desirable action to cause such  insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding  in accordance with the terms of such policies. Upon request of Indemnitee, the Company shall  also promptly provide to Indemnitee: (i) copies of all of the Company’s potentially applicable  directors’ and officers’ liability insurance policies, (ii) copies of such notices delivered to the  applicable insurers, and (iii) copies of all subsequent communications and correspondence  between the Company and such insurers regarding the Proceeding.  





 






  13    (c) [The Company hereby acknowledges that Indemnitee has certain rights to  indemnification, advancement of expenses and/or insurance provided by [Name of  Fund/Sponsor] and certain of [its][their] affiliates (collectively, the “Fund Indemnitors”).  The  Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to  Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to  provide indemnification for the same expenses or liabilities incurred by Indemnitee are  secondary), (ii) that it shall be required to advance the full amount of expenses incurred by  Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and  amounts paid in settlement to the extent legally permitted and as required by the terms of this  Agreement and the Charter and/or Bylaws (or any other agreement between the Company and  Indemnitee), without regard to any rights Indemnitee may have against the Fund Indemnitors,  and (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and  all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of  any kind in respect thereof.  The Company further agrees that no advancement or payment by the  Fund Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has  sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors  shall have a right of contribution and/or be subrogated to the extent of such advancement or  payment to all of the rights of recovery of Indemnitee against the Company.  The Company and  Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of  this Section 13(c).]  (d) [Except as provided in paragraph (c) above,] [I/i]n the event of any  payment under this Agreement, the Company shall be subrogated to the extent of such payment  to all of the rights of recovery of Indemnitee [(other than against the Fund Indemnitors)], who  shall execute all papers required and take all action necessary to secure such rights, including  execution of such documents as are necessary to enable the Company to bring suit to enforce  such rights.  (e) [Except as provided in paragraph (c) above,] [T/t]he Company’s  obligation to provide indemnification or advancement hereunder to Indemnitee who is or was  serving at the request of the Company as a director, manager, partner, officer, employee, agent or  trustee of any other Enterprise shall be reduced by any amount Indemnitee has actually received  as indemnification or advancement from such other Enterprise.  Section 14. Duration of Agreement.  This Agreement shall continue until and  terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to  serve as a director of the Company or (b) one (1) year after the final termination of any  Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights  of indemnification or advancement hereunder and of any proceeding commenced by Indemnitee  pursuant to Section 12 of this Agreement relating thereto.  This Agreement shall be binding upon  the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his  or her heirs, executors and administrators.  The Company shall require and cause any successor  (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially  all or a substantial part, of the business and/or assets of the Company, by written agreement in  form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this  Agreement in the same manner and to the same extent that the Company would be required to  perform if no such succession had taken place.  





 






  14    Section 15. 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 this Agreement (including, without limitation,  each portion of any section of this Agreement containing any such provision held to be invalid,  illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way  be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by  law; (b) such provision or provisions shall be deemed reformed to the extent necessary to  conform to applicable law and to give the maximum effect to the intent of the parties hereto; and  (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation,  each portion of any section of this Agreement containing any such provision held to be invalid,  illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so  as to give effect to the intent manifested thereby.  Section 16. Enforcement.  (a) The Company expressly confirms and agrees that it has entered into this  Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to  [serve or continue to serve] as a director of the Company, and the Company acknowledges that  Indemnitee is relying upon this Agreement in serving as a director of the Company.  (b) This Agreement constitutes the entire agreement between the parties  hereto with respect to the subject matter hereof and supersedes all prior agreements and  understandings, oral, written and implied, between the parties hereto with respect to the subject  matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of  the Charter, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to  diminish or abrogate any rights of Indemnitee thereunder.  Section 17. Modification and Waiver.  No supplement, modification or amendment, or  waiver of any provision, of this Agreement shall be binding unless executed in writing by the  parties thereto.  No waiver of any of the provisions of this Agreement shall be deemed or shall  constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a  continuing waiver.  No supplement, modification or amendment of this Agreement or of any  provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of  any action taken or omitted by such Indemnitee prior to such supplement, modification or  amendment.  Section 18. Notice by Indemnitee.  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 Proceeding or matter which may be subject to  indemnification, reimbursement or advancement as provided hereunder.  The failure of  Indemnitee to so notify the Company or any delay in notification  shall not relieve the Company  of any obligation which it may have to Indemnitee under this Agreement or otherwise, unless,  and then only to the extent that, the Company did not otherwise learn of the Proceeding and such  delay is materially prejudicial to the Company’s ability to defend such Proceeding or matter;  and, provided, further, that notice will be deemed to have been given without any action on the  part of Indemnitee in the event the Company is a party to the same Proceeding.  





 






  15    Section 19. Notices.  All notices, requests, demands and other communications under  this Agreement 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, (iii) mailed by reputable overnight courier  and receipted for by the party to whom said notice or other communication shall have been  directed or (iv) sent by facsimile transmission, with receipt of oral confirmation that such  transmission has been received:  (a) If to Indemnitee, at such address as Indemnitee shall provide to the  Company.  (b) If to the Company to:    Zendesk, Inc.  989 Market Street, Suite 300  San Francisco, CA 94103  or to any other address as may have been furnished to Indemnitee by the Company.    Section 20. Contribution.  To the fullest extent permissible under applicable law, if the  indemnification provided for in this Agreement is unavailable to Indemnitee for any reason  whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount  incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to  be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion  as is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the  relative benefits received by the Company and Indemnitee in connection with the event(s) and/or  transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and  its directors, officers, employees and agents) and Indemnitee in connection with such event(s)  and/or transactions.  Section 21. Internal Revenue Code Section 409A.  The Company intends for this  Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the  regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”),  which provides that indemnification of, or the purchase of an insurance policy providing for  payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with  respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of  compensation, subject to Section 409A of the Code, where such claim is based on actions or  failures to act by Indemnitee in his or her capacity as a service provider of the Company.  The  parties intend that this Agreement be interpreted and construed with such intent.  Section 22. Applicable Law and Consent to Jurisdiction.  This Agreement and the  legal relations among the parties shall be governed by, and construed and enforced in accordance  with, the laws of the State of Delaware, without regard to its conflict of laws rules.  Except with  respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this  





 






  16    Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that  any action or proceeding arising out of or in connection with this Agreement shall be brought  only in the Delaware Court, and not in any other state or federal court in the United States of  America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of  the Delaware Court for purposes of any action or proceeding arising out of or in connection with  this Agreement, (iii) consent to service of process at the address set forth in Section 19 of this  Agreement with the same legal force and validity as if served upon such party personally within  the State of Delaware, (iv) waive any objection to the laying of venue of any such action or  proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim  that any such action or proceeding brought in the Delaware Court has been brought in an  improper or inconvenient forum.  Section 23. Headings.  The headings of the 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.  Section 24. 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.  Section 25. Monetary Damages Insufficient/Specific Enforcement.  The Company and  Indemnitee agree that a monetary remedy for breach of this Agreement may be inadequate,  impracticable and difficult of proof, and further agree that such breach may cause Indemnitee  irreparable harm. Accordingly, the parties hereto agree that Indemnitee may enforce this  Agreement by seeking injunctive relief and/or specific performance hereof, without any  necessity of showing actual damage or irreparable harm (having agreed that actual and  irreparable harm will result in not forcing the Company to specifically perform its obligations  pursuant to this Agreement) and that by seeking injunctive relief and/or specific performance,  Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be  entitled. The Company and Indemnitee further agree that Indemnitee shall be entitled to such  specific performance and injunctive relief, including temporary restraining orders, preliminary  injunctions and permanent injunctions, without the necessity of posting bonds or other  undertaking in connection therewith. The Company acknowledges that in the absence of a  waiver, a bond or undertaking may be required of Indemnitee by the Court, and the Company  hereby waives any such requirement of a bond or undertaking.  [Remainder of Page Intentionally Left Blank] 





 






      IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the  day and year first above written.          ZENDESK, INC.                        By:                    Name:                   Title:                                     [Name of Indemnitee]                          





 






      ZENDESK, INC.  Indemnification Agreement  (For Officers of a Delaware Corporation)  This Indemnification Agreement (“Agreement”) is made as of ________________ by  and between Zendesk, Inc., a Delaware corporation (the “Company”), and ____________  (“Indemnitee”).    RECITALS    WHEREAS, the Company desires to attract and retain the services of highly qualified  individuals, such as Indemnitee, to serve the Company;    WHEREAS, in order to induce Indemnitee to [provide or continue to provide] services to  the Company, the Company wishes to provide for the indemnification of, and advancement of  expenses to, Indemnitee to the maximum extent permitted by law;  WHEREAS, the Certificate of Incorporation (the “Charter”) and the Bylaws (the  “Bylaws”) of the Company require indemnification of the officers and directors of the Company,  and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law  of the State of Delaware (the “DGCL”);   WHEREAS, the Charter, the Bylaws and the DGCL expressly provide that the  indemnification provisions set forth therein are not exclusive, and thereby contemplate that  contracts may be entered into between the Company and members of the board of directors,  officers and other persons with respect to indemnification;  WHEREAS, the Board of Directors of the Company (the “Board”) has determined that  the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is  detrimental to the best interests of the Company’s stockholders;  WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself  to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted  by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so  that they will [serve or continue to serve] the Company free from undue concern that they will  not be so indemnified; and  WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification  provided in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not  be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.  NOW, THEREFORE, in consideration of the premises and the covenants contained  herein, the Company and Indemnitee do hereby covenant and agree as follows:  Section 1. Services to the Company.  Indemnitee agrees to serve as [a director and]  an officer of the Company.  Indemnitee may at any time and for any reason resign from [any]  such position (subject to any other contractual obligation or any obligation imposed by law), in  





 






  2    which event the Company shall have no obligation under this Agreement to continue Indemnitee  in such position.  This Agreement shall not be deemed an employment contract between the  Company (or any of its subsidiaries or any Enterprise) and Indemnitee.   Section 2. Definitions.  As used in this Agreement:    (a) “Affiliate” and “Associate” shall have the respective meanings ascribed to  such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange  Act of 1934, as amended, as in effect on the date of this Agreement; provided, however, that no  Person who is a director or officer of the Company shall be deemed an Affiliate or an Associate  of any other director or officer of the Company solely as a result of his or her position as director  or officer of the Company.  (b) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed  to “Beneficially Own” and have “Beneficial Ownership” of, any securities:  (i) which such Person or any of such Person’s Affiliates or Associates,  directly or indirectly, Beneficially Owns (as determined pursuant to Rule 13d-3 of the Rules  under the Exchange Act, as in effect on the date of this Agreement);  (ii) which such Person or any of such Person’s Affiliates or Associates,  directly or indirectly, has: (A) the legal, equitable or contractual right or obligation to acquire  (whether directly or indirectly and whether exercisable immediately or only after the passage of  time, compliance with regulatory requirements, satisfaction of one or more conditions (whether  or not within the control of such Person) or otherwise) upon the exercise of any conversion  rights, exchange rights, rights, warrants or options, or otherwise; (B) the right to vote pursuant to  any agreement, arrangement or understanding (whether or not in writing); or (C) the right to  dispose of pursuant to any agreement, arrangement or understanding (whether or not in writing)  (other than customary arrangements with and between underwriters and selling group members  with respect to a bona fide public offering of securities);   (iii) which are Beneficially Owned, directly or indirectly, by any other Person  (or any Affiliate or Associate thereof) with which such Person or any of such Person’s Affiliates  or Associates has any agreement, arrangement or understanding (whether or not in writing)  (other than customary agreements with and between underwriters and selling group members  with respect to a bona fide public offering of securities) for the purpose of acquiring, holding,  voting or disposing of any securities of the Company; or  (iv) that are the subject of a derivative transaction entered into by such Person  or any of such Person’s Affiliates or Associates, including, for these purposes, any derivative  security acquired by such Person or any of such Person’s Affiliates or Associates that gives such  Person or any of such Person’s Affiliates or Associates the economic equivalent of ownership of  an amount of securities due to the fact that the value of the derivative security is explicitly  determined by reference to the price or value of such securities, or that provides such Person or  any of such Person’s Affiliates or Associates an opportunity, directly or indirectly, to profit or to  





 






  3    share in any profit derived from any change in the value of such securities, in any case without  regard to whether (A) such derivative security conveys any voting rights in such securities to  such Person or any of such Person’s Affiliates or Associates; (B) the derivative security is  required to be, or capable of being, settled through delivery of such securities; or (C) such Person  or any of such Person’s Affiliates or Associates may have entered into other transactions that  hedge the economic effect of such derivative security;  Notwithstanding the foregoing, no Person engaged in business as an underwriter of  securities shall be deemed the Beneficial Owner of any securities acquired through such Person’s  participation as an underwriter in good faith in a firm commitment underwriting.    (c)  A “Change in Control” shall be deemed to occur upon the earliest to  occur after the date of this Agreement of any of the following events:   (i) [Acquisition of Stock by Third Party]. Any Person is or becomes the  Beneficial Owner (as defined above), directly or indirectly, of securities of the Company  representing fifty percent (50%) or more of the combined voting power of the Company’s then  outstanding securities unless the change in relative Beneficial Ownership of the Company’s  securities by any Person results solely from a reduction in the aggregate number of outstanding  shares of securities entitled to vote generally in the election of directors, provided that a Change  of Control shall be deemed to have occurred if subsequent to such reduction such Person  becomes the Beneficial Owner, directly or indirectly, of any additional securities of the  Company conferring upon such Person any additional voting power;  (ii) Change in Board of Directors. During any period of two (2) consecutive  years (not including any period prior to the execution of this Agreement), individuals who at the  beginning of such period constitute the Board, and any new director (other than a director  designated by a Person who has entered into an agreement with the Company to effect a  transaction described in Sections 2(c)(i), 2(c)(iii) or 2(c)(iv)) whose election by the Board or  nomination for election by the Company’s stockholders was approved by a vote of at least two- thirds 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 at least a majority of the members of the Board;  (iii) Corporate Transactions. The effective date of a merger or consolidation of  the Company with any other entity, other than a merger or consolidation which would result in  the voting securities of the Company outstanding immediately prior to such merger or  consolidation continuing to represent (either by remaining outstanding or by being converted into  voting securities of the surviving or successor entity) more than 50% of the combined voting  power of the voting securities of the surviving or successor entity outstanding immediately after  such merger or consolidation and with the power to elect at least a majority of the board of  directors or other governing body of such surviving or successor entity;  (iv) Liquidation. The approval by the stockholders of the Company of a  complete liquidation of the Company or an agreement for the sale, lease, exchange or other  transfer by the Company, in one or a series of related transactions, of all or substantially all of  the Company’s assets; and  





 






  4    (v) Other Events. There occurs any other event of a nature that would be  required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a  response to any similar item on any similar schedule or form) promulgated under the Securities  Exchange Act of 1934, as amended, whether or not the Company is then subject to such  reporting requirement.  (d) “Corporate Status” describes the status of a person as a current or former  [director or] officer of the Company or current or former director, manager, partner, officer,  employee, agent or trustee of any other Enterprise which such person is or was serving at the  request of the Company.  (e) “Enforcement Expenses” shall include all reasonable attorneys’ fees, court  costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding  costs, telephone charges, postage, delivery service fees, and all other out-of-pocket  disbursements or expenses of the types customarily incurred in connection with an action to  enforce indemnification or advancement rights, or an appeal from such action.  Expenses,  however, shall not include fees, salaries, wages or benefits owed to Indemnitee.  (f) “Enterprise” shall mean any corporation (other than the Company),  partnership, joint venture, trust, employee benefit plan, limited liability company, or other legal  entity of which Indemnitee is or was serving at the request of the Company as a director,  manager, partner, officer, employee, agent or trustee.  (g) “Expenses” shall include all reasonable attorneys’ fees, court costs,  transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs,  telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or  expenses of the types customarily incurred in connection with prosecuting, defending, preparing  to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise  participating in, a Proceeding or an appeal resulting from a Proceeding.  Expenses, however,  shall not include amounts paid in settlement by Indemnitee, the amount of judgments or fines  against Indemnitee or fees, salaries, wages or benefits owed to Indemnitee.  (h) “Independent Counsel” means a law firm, or a partner (or, if applicable,  member or shareholder) of such a law firm, that is experienced in matters of Delaware  corporation law and neither presently is, nor in the past five (5) years has been, retained to  represent: (i) the Company, any subsidiary of the Company, any Enterprise or Indemnitee in any  matter material to any such party; or (ii) 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 rights under this Agreement.  The Company agrees to pay  the reasonable fees and expenses of the Independent Counsel referred to above and to fully  indemnify such counsel against any and all expenses, claims, liabilities and damages arising out  of or relating to this Agreement or its engagement pursuant hereto.  (i) “Person” shall mean (i) an individual, a corporation, a partnership, a  limited liability company, an association, a joint stock company, a trust, a business trust, a  





 






  5    government or political subdivision, any unincorporated organization, or any other association or  entity including any successor (by merger or otherwise) thereof or thereto, and (ii) a “group” as  that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as  amended.  (j) The term “Proceeding” shall include any threatened, pending or completed  action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,  administrative hearing or any other actual, threatened or completed proceeding, whether brought  in the right of the Company or otherwise and whether of a civil, criminal, administrative,  regulatory or investigative nature, and whether formal or informal, in which Indemnitee was, is  or will be involved as a party or otherwise by reason of the fact that Indemnitee is or was [a  director or] an officer of the Company or is or was serving at the request of the Company as a  director, manager, partner, officer, employee, agent or trustee of any Enterprise or by reason of  any action taken by Indemnitee or of any action taken on his or her part while acting as [a  director or] an officer of the Company or while serving at the request of the Company as a  director, manager, partner, officer, employee, agent or trustee of any Enterprise, in each case  whether or not serving in such capacity at the time any liability or expense is incurred for which  indemnification, reimbursement or advancement of expenses can be provided under this  Agreement; provided, however, that the term “Proceeding” shall not include any action, suit or  arbitration, or part thereof, initiated by Indemnitee to enforce Indemnitee’s rights under this  Agreement as provided for in Section 12(a) of this Agreement.  Section 3. Indemnity in Third-Party Proceedings.  The Company shall indemnify  Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made, a  party to or a participant in any Proceeding, other than a Proceeding by or in the right of the  Company to procure a judgment in its favor.  Pursuant to this Section 3, Indemnitee shall be  indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in  settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection  with such Proceeding or any claim, issue or matter therein, if 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 and, in the case of a criminal proceeding, had no reasonable cause to believe that his or  her conduct was unlawful.    Section 4. Indemnity in Proceedings by or in the Right of the Company.  The  Company shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or  is threatened to be made, a party to or a participant in any Proceeding by or in the right of the  Company to procure a judgment in its favor.  Pursuant to this Section 4, Indemnitee shall be  indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her  behalf in connection with such Proceeding or any claim, issue or matter therein, if 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.  No indemnification for Expenses shall be made under this  Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally  adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware  Court of Chancery (the “Delaware Court”) shall determine upon application that, despite the  adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and  reasonably entitled to indemnification for such expenses as the Delaware Court shall deem  proper.  





 






  6    Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly  Successful.  Notwithstanding any other provisions of this Agreement and except as provided in  Section 7, to the extent that Indemnitee is a party to or a participant in any Proceeding and is  successful in such Proceeding or in defense of any claim, issue or matter therein, the Company  shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her  in connection therewith.  If Indemnitee is not wholly successful in such Proceeding but is  successful as to one or more but less than all claims, issues or matters in such Proceeding, the  Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by  Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or  matter.  For purposes of this Section and without limitation, the termination of any claim, issue  or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a  successful result as to such claim, issue or matter.  Section 6. Reimbursement for Expenses of a Witness or in Response to a Subpoena.   Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason  of his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a  party and is not threatened to be made a party or (ii) receives a subpoena with respect to any  Proceeding to which Indemnitee is not a party and is not threatened to be made a party, the  Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by him  or her or on his or her behalf in connection therewith.      Section 7. Exclusions.  Notwithstanding any provision in this Agreement to the  contrary, the Company shall not be obligated under this Agreement:    (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which  advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually  received such amounts under any insurance policy, contract, agreement or otherwise; provided  that the foregoing shall not i apply to any personal or umbrella liability insurance maintained by  Indemnitee, or (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section  13(c);  (b) to indemnify for an accounting of profits made from the purchase and sale  (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section  16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state  statutory law or common law, or from the purchase or sale by Indemnitee of such securities in  violation of Section 306 of the Sarbanes-Oxley Act of 2002 (“SOX”);  (c) to indemnify for any reimbursement of, or payment to, the Company by  Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits  realized by Indemnitee from the sale of securities of the Company pursuant to Section 304 of  SOX or any formal policy of the Company adopted by the Board (or a committee thereof), or any  other remuneration paid to Indemnitee if it shall be determined by a final judgment or other final  adjudication that such remuneration was in violation of law;   (d) to indemnify with respect to any Proceeding, or part thereof, brought by  Indemnitee against the Company, any legal entity which it controls, any director or officer  thereof or any third party, unless (i) the Board has consented to the initiation of such Proceeding  





 






  7    or part thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant  to the powers vested in the Company under applicable law; provided, however, that this Section  7(d) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in an  action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification  or advancement from the Company under this Agreement or under any directors’ and officers’  liability insurance policies maintained by the Company in the suit for which indemnification or  advancement is being sought as described in Section 12; or  (e) to provide any indemnification or advancement of expenses that is  prohibited by applicable law (as such law exists at the time payment would otherwise be required  pursuant to this Agreement).  Section 8. Advancement of Expenses.  Subject to Section 9(b), the Company shall  advance the Expenses incurred by Indemnitee in connection with any Proceeding, and such  advancement shall be made within thirty 30 days after the receipt by the Company of a statement  or statements requesting such advances (including any invoices received by Indemnitee, which  such invoices may be redacted as necessary to avoid the waiver of any privilege accorded by  applicable law) from time to time, whether prior to or after final disposition of any Proceeding.   Advances shall be unsecured and interest free.  Advances shall be made without regard to  Indemnitee’s (i) ability to repay the expenses, (ii) ultimate entitlement to indemnification under  the other provisions of this Agreement, and (iii) entitlement to and availability of insurance  coverage, including advancement, payment or reimbursement of defense costs, expenses or  covered loss under the provisions of any applicable insurance policy (including, without  limitation, whether such advancement, payment or reimbursement is withheld, conditioned or  delayed by the insurer(s)).  Indemnitee shall qualify for advances upon the execution and  delivery to the Company of this Agreement which shall constitute an undertaking providing that  Indemnitee undertakes to the fullest extent required by law to repay the advance if and to the  extent that it is ultimately determined by a court of competent jurisdiction in a final judgment,  not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company.  No  other form of undertaking shall be required.  The right to advances under this paragraph shall in  all events continue until final disposition of any Proceeding, including any appeal therein.   Nothing in this Section 8 shall limit Indemnitee’s right to advancement pursuant to Section 12(e)  of this Agreement.   Section 9. Procedure for Notification and Defense of Claim.  (a) To obtain indemnification under this Agreement, Indemnitee shall submit  to the Company a written request therefor specifying the basis for the claim, the amounts for  which Indemnitee is seeking payment under this Agreement, and all documentation related  thereto as reasonably requested by the Company.    (b) In the event that the Company shall be obligated hereunder to provide  indemnification for or make any advancement of Expenses with respect to any Proceeding, the  Company shall be entitled to assume the defense of such Proceeding, or any claim, issue or  matter therein, with counsel approved by Indemnitee (which approval shall not be unreasonably  withheld or delayed) upon the delivery to Indemnitee of written notice of the Company’s election  to do so.  After delivery of such notice, approval of such counsel by Indemnitee and the retention  





 






  8    of such counsel by the Company, the Company will not be liable to Indemnitee under this  Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf  of Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the  right to employ separate counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A)  the employment of separate counsel by Indemnitee has been previously authorized by the  Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of  interest between the Company and Indemnitee in the conduct of such defense, (C) the Company  shall not continue to retain such counsel to defend such Proceeding, or (D) a Change in Control  shall have occurred, then the fees and expenses actually and reasonably incurred by Indemnitee  with respect to his or her separate counsel shall be Expenses hereunder.    (c) In the event that the Company does not assume the defense in a  Proceeding pursuant to paragraph (b) above, then the Company will be entitled to participate in  the Proceeding at its own expense.  (d) The Company shall not be liable to indemnify Indemnitee under this  Agreement for any amounts paid in settlement of any Proceeding effected without its prior  written consent (which consent shall not be unreasonably withheld or delayed).  Without limiting  the generality of the foregoing, the fact that an insurer under an applicable insurance policy  delays or is unwilling to consent to such settlement or is or may be in breach of its obligations  under such policy, or the fact that directors’ and officers’ liability insurance is otherwise  unavailable or not maintained by the Company, may not be taken into account by the Company  in determining whether to provide its consent. The Company shall not, without the prior written  consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter into  any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy  imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and  actually indemnified hereunder or (ii) with respect to any Proceeding with respect to which  Indemnitee may be or is made a party or may be otherwise entitled to seek indemnification  hereunder, does not include the full release of Indemnitee from all liability in respect of such  Proceeding.  Section 10. Procedure Upon Application for Indemnification.  (a) Upon written request by Indemnitee for indemnification pursuant to  Section 9(a), a determination, if such determination is required by applicable law, with respect to  Indemnitee’s entitlement to indemnification hereunder shall be made in the specific case by one  of the following methods: [(x) if a Change in Control shall have occurred and indemnification is  being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by  Independent Counsel in a written opinion to the Board; or (y) in any other case,] (i) by a majority  vote of the disinterested directors, even though less than a quorum; (ii) by a committee of  disinterested directors designated by a majority vote of the disinterested directors, even though  less than a quorum; or (iii) if there are no disinterested directors or if the disinterested directors  so direct, by Independent Counsel in a written opinion to the Board.  For purposes hereof,  disinterested directors are those members of the Board who are not parties to the action, suit or  proceeding in respect of which indemnification is sought.  In the case that such determination is  made by Independent Counsel, a copy of Independent Counsel’s written opinion shall be  delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification,  





 






  9    payment to Indemnitee shall be made within thirty(30) days after such determination.   Indemnitee shall cooperate with the Independent Counsel or the Company, as applicable, in  making such determination with respect to Indemnitee’s entitlement to indemnification,  including providing to such counsel or the Company, upon reasonable advance request, any  documentation or information which is not privileged or otherwise protected from disclosure and  which is reasonably available to Indemnitee and reasonably necessary to such determination.   The Company shall likewise cooperate with Indemnitee and Independent Counsel, if applicable,  in making such determination with respect to Indemnitee’s entitlement to indemnification,  including providing to such counsel and Indemnitee, upon reasonable advance request, any  documentation or information which is not privileged or otherwise protected from disclosure and  which is reasonably available to the Company and reasonably necessary to such determination.   Any out-of-pocket costs or expenses (including reasonable attorneys’ fees and disbursements)  actually and reasonably incurred by Indemnitee in so cooperating with the Independent Counsel  or the Company shall be borne by the Company (irrespective of the determination as to  Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to  hold Indemnitee harmless therefrom.  (b) If the determination of entitlement to indemnification is to be made by  Independent Counsel pursuant to Section 10(a), the Independent Counsel shall be selected by the  Board[; provided that, if a Change in Control shall have occurred and indemnification is being  requested by Indemnitee hereunder in his or her capacity as a director of the Company, the  Independent Counsel shall be selected by Indemnitee].  Indemnitee [or the Company, as the case  may be,] may, within ten (10) days after written notice of such selection, deliver to the Company  [or Indemnitee, as the case may be,] a written objection to such selection; provided, however,  that such objection may be asserted only on the ground that the Independent Counsel so selected  does not meet the requirements of “Independent Counsel” as defined in Section 2 of this  Agreement, and the objection shall set forth with particularity the factual basis of such assertion.   Absent a proper and timely objection, the Person so selected shall act as Independent Counsel.  If  such written objection is so made and substantiated, the Independent Counsel so selected may  not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware  Court has determined that such objection is without merit.  If, within twenty (20) days after the  later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section  9(a), and (ii) the final disposition of the Proceeding, including any appeal therein, no  Independent Counsel shall have been selected without objection, either Indemnitee or the  Company may petition the Delaware Court for resolution of any objection which shall have been  made by Indemnitee or the Company to the selection of Independent Counsel and/or for the  appointment as Independent Counsel of a Person selected by the court or by such other Person as  the court shall designate.   The Person with respect to whom all objections are so resolved or the  Person so appointed shall act as Independent Counsel under Section 10(a) hereof.  Upon the due  commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this  Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in  such capacity (subject to the applicable standards of professional conduct then prevailing).  (c) Notwithstanding anything to the contrary contained in this Agreement, the  determination of entitlement to indemnification under this Agreement shall be made without  regard to the Indemnitee’s entitlement to and availability of insurance coverage, including  advancement, payment or reimbursement of defense costs, expenses or covered loss under the  





 






  10    provisions of any applicable insurance policy (including, without limitation, whether such  advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)).  Section 11. Presumptions and Effect of Certain Proceedings.   (a) To the extent permitted by applicable law, in making a determination with  respect to entitlement to indemnification hereunder, it shall be presumed that Indemnitee is  entitled to indemnification under this Agreement if Indemnitee has submitted a request for  indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have  the burden of proof and the burden of persuasion by clear and convincing evidence to overcome  that presumption in connection with the making of any determination contrary to that  presumption.    (b) The termination of any Proceeding or of any claim, issue or matter therein,  by judgment, order, settlement or conviction, or upon a plea of guilty, nolo contendere or its  equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself  adversely affect the right of Indemnitee to indemnification or create a presumption that  Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be  in or not opposed to the best interests of the Company or, with respect to any criminal  Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was  unlawful.  (c) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s  actions based on the records or books of account of the Company or any other Enterprise,  including financial statements, or on information supplied to Indemnitee by the directors,  officers, agents or employees of the Company or any other Enterprise in the course of their  duties, or on the advice of legal counsel for the Company or any other Enterprise or on  information or records given or reports made to the Company or any other Enterprise by an  independent certified public accountant or by an appraiser or other expert selected with  reasonable care by the Company or any other Enterprise. The provisions of this Section 11(c)  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 failure to act, of any director, manager,  partner, officer, employee, agent or trustee of the Company, any subsidiary of the Company, or  any Enterprise shall not be imputed to Indemnitee for purposes of determining the right to  indemnification under this Agreement. Whether or not the foregoing provisions of this Section  11(c) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in  good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best  interests of the Company. Anyone seeking to overcome this presumption shall have the burden  of proof and the burden of persuasion by clear and convincing evidence.  Section 12. Remedies of Indemnitee.  (a) Subject to Section 12(f), in the event that (i) a determination is made  pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under  this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this  Agreement, (iii) no determination of entitlement to indemnification shall have been made  





 






  11    pursuant to Section 10(a) of this Agreement within sixty (60) days after receipt by the Company  of the request for indemnification for which a determination is to be made other than by  Independent Counsel, (iv) payment of indemnification or reimbursement of expenses is not made  pursuant to Section 5 or 6 or the last sentence of Section 10(a) of this Agreement within thirty  (30) days after receipt by the Company of a written request therefor (including any invoices  received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver  of any privilege accorded by applicable law) or (v) payment of indemnification pursuant to  Section 3 or 4 of this Agreement is not made within thirty (30) days after a determination has  been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an  adjudication by the Delaware Court of his or her entitlement to such indemnification or  advancement.  Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to  be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the  American Arbitration Association.  Indemnitee shall commence such proceeding seeking an  adjudication or an award in arbitration within 180 days following the date on which Indemnitee  first has the right to commence such proceeding pursuant to this Section 12(a); provided,  however, that the foregoing time limitation shall not apply in respect of a proceeding brought by  Indemnitee to enforce his or her rights under Section 5 of this Agreement.  The Company shall  not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.  (b) In the event that a determination shall have been made pursuant to Section  10(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial  proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all  respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by  reason of that adverse determination.  In any judicial proceeding or arbitration commenced  pursuant to this Section 12, the Company shall have the burden of proving Indemnitee is not  entitled to indemnification or advancement, as the case may be.  (c) If a determination shall have been made pursuant to Section 10(a) of this  Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such  determination in any judicial proceeding or arbitration commenced pursuant to this Section 12,  absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact  necessary to make Indemnitee’s statement not materially misleading, in connection with the  request for indemnification, or (ii) a prohibition of such indemnification under applicable law.  (d) The Company shall be precluded from asserting in any judicial proceeding  or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of  this Agreement are not valid, binding and enforceable and shall stipulate in any such court or  before any such arbitrator that the Company is bound by all the provisions of this Agreement.    (e) The Company shall indemnify Indemnitee to the fullest extent permitted  by law against any and all Enforcement Expenses and, if requested by Indemnitee, shall (within   thirty (30) days after receipt by the Company of a written request therefor) advance, to the extent  not prohibited by law, such Enforcement Expenses to Indemnitee, which are incurred by  Indemnitee in connection with any action brought by Indemnitee for indemnification or  advancement from the Company under this Agreement or under any directors’ and officers’  liability insurance policies maintained by the Company in the suit for which indemnification or  advancement is being sought.  Such written request for advancement shall include invoices  





 






  12    received by Indemnitee in connection with such Enforcement Expenses but, in the case of  invoices in connection with legal services, any references to legal work performed or to  expenditures made that would cause Indemnitee to waive any privilege accorded by applicable  law need not be included with the invoice.  (f) Notwithstanding anything in this Agreement to the contrary, no  determination as to entitlement to indemnification under this Agreement shall be required to be  made prior to the final disposition of the Proceeding, including any appeal therein.  Section 13. Non-exclusivity; Survival of Rights; Insurance; Subrogation.  (a) The rights of indemnification and to receive advancement as provided by  this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at  any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of  stockholders or a resolution of directors, or otherwise.  No amendment, alteration or repeal of  this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under  this Agreement in respect of any action taken or omitted by such Indemnitee in his or her  Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in  Delaware law, whether by statute or judicial decision, permits greater indemnification or  advancement than would be afforded currently under the Charter, Bylaws and this Agreement, it  is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater  benefits so afforded by such change.  No right or remedy herein conferred is intended to be  exclusive of any other right or remedy, and every other right and remedy shall be cumulative and  in addition to every other right and remedy given hereunder or now or hereafter existing at law  or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or  otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.  (b) To the extent that the Company maintains an insurance policy or policies  providing liability insurance for directors, managers, partners, officers, employees, agents or  trustees of the Company or of any other Enterprise, Indemnitee shall be covered by such policy  or policies in accordance with its or their terms to the maximum extent of the coverage available  for any such director, manager, partner, officer, employee, agent or trustee under such policy or  policies.  If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the  Company has director and officer liability insurance in effect, the Company shall give prompt  notice of such claim to the insurers in accordance with the procedures set forth in the respective  policies.   The Company shall thereafter take all necessary or desirable action to cause such  insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding  in accordance with the terms of such policies. Upon request of Indemnitee, the Company shall  also promptly provide to Indemnitee: (i) copies of all of the Company’s potentially applicable  directors’ and officers’ liability insurance policies, (ii) copies of such notices delivered to the  applicable insurers, and (iii) copies of all subsequent communications and correspondence  between the Company and such insurers regarding the Proceeding.  (c) In the event of any payment under this Agreement, the Company shall be  subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall  execute all papers required and take all action necessary to secure such rights, including  





 






  13    execution of such documents as are necessary to enable the Company to bring suit to enforce  such rights.  (d) The Company’s obligation to provide indemnification or advancement  hereunder to Indemnitee who is or was serving at the request of the Company as a director,  manager, partner, officer, employee, agent or trustee of any other Enterprise shall be reduced by  any amount Indemnitee has actually received as indemnification or advancement from such other  Enterprise.  Section 14. Duration of Agreement.  This Agreement shall continue until and  terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to  serve as [both a director and] an officer of the Company or (b) one (1) year after the final  termination of any Proceeding, including any appeal, then pending in respect of which  Indemnitee is granted rights of indemnification or advancement hereunder and of any proceeding  commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto.  This  Agreement shall be binding upon the Company and its successors and assigns and shall inure to  the benefit of Indemnitee and his or her heirs, executors and administrators.  The Company shall  require and cause any successor (whether direct or indirect by purchase, merger, consolidation or  otherwise) to all, substantially all or a substantial part, of the business and/or assets of the  Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to  assume and agree to perform this Agreement in the same manner and to the same extent that the  Company would be required to perform if no such succession had taken place.  Section 15. 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 this Agreement (including, without limitation,  each portion of any section of this Agreement containing any such provision held to be invalid,  illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way  be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by  law; (b) such provision or provisions shall be deemed reformed to the extent necessary to  conform to applicable law and to give the maximum effect to the intent of the parties hereto; and  (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation,  each portion of any section of this Agreement containing any such provision held to be invalid,  illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so  as to give effect to the intent manifested thereby.  Section 16. Enforcement.  (a) The Company expressly confirms and agrees that it has entered into this  Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee [to  serve or continue to serve] as [a director and] an officer of the Company, and the Company  acknowledges that Indemnitee is relying upon this Agreement in serving as [a director and] an  officer of the Company.  (b) This Agreement constitutes the entire agreement between the parties  hereto with respect to the subject matter hereof and supersedes all prior agreements and  understandings, oral, written and implied, between the parties hereto with respect to the subject  





 






  14    matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of  the Charter, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to  diminish or abrogate any rights of Indemnitee thereunder.  Section 17. Modification and Waiver.  No supplement, modification or amendment, or  waiver of any provision, of this Agreement shall be binding unless executed in writing by the  parties thereto.  No waiver of any of the provisions of this Agreement shall be deemed or shall  constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a  continuing waiver.  No supplement, modification or amendment of this Agreement or of any  provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of  any action taken or omitted by such Indemnitee prior to such supplement, modification or  amendment.  Section 18. Notice by Indemnitee.  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 Proceeding or matter which may be subject to  indemnification, reimbursement or advancement as provided hereunder.  The failure of  Indemnitee to so notify the Company or any delay in notification shall not relieve the Company  of any obligation which it may have to Indemnitee under this Agreement or otherwise, unless,  and then only to the extent that, the Company did not otherwise learn of the Proceeding and such  delay is materially prejudicial to the Company’s ability to defend such Proceeding or matter;  and, provided, further, that notice will be deemed to have been given without any action on the  part of Indemnitee in the event the Company is a party to the same Proceeding.  Section 19. Notices.  All notices, requests, demands and other communications under  this Agreement 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, (iii) mailed by reputable overnight courier  and receipted for by the party to whom said notice or other communication shall have been  directed or (iv) sent by facsimile transmission, with receipt of oral confirmation that such  transmission has been received:  (a) If to Indemnitee, at such address as Indemnitee shall provide to the  Company.  (b) If to the Company to:    Zendesk, Inc.  989 Market Street, Suite 300  San Francisco, CA 94103  or to any other address as may have been furnished to Indemnitee by the Company.    Section 20. Contribution.  To the fullest extent permissible under applicable law, if the  indemnification provided for in this Agreement is unavailable to Indemnitee for any reason  





 






  15    whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount  incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to  be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion  as is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the  relative benefits received by the Company and Indemnitee in connection with the event(s) and/or  transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and  its directors, officers, employees and agents) and Indemnitee in connection with such event(s)  and/or transactions.  Section 21. Internal Revenue Code Section 409A.  The Company intends for this  Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the  regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”),  which provides that indemnification of, or the purchase of an insurance policy providing for  payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with  respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of  compensation, subject to Section 409A of the Code, where such claim is based on actions or  failures to act by Indemnitee in his or her capacity as a service provider of the Company.  The  parties intend that this Agreement be interpreted and construed with such intent.  Section 22. Applicable Law and Consent to Jurisdiction.  This Agreement and the  legal relations among the parties shall be governed by, and construed and enforced in accordance  with, the laws of the State of Delaware, without regard to its conflict of laws rules.  Except with  respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this  Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that  any action or proceeding arising out of or in connection with this Agreement shall be brought  only in the Delaware Court, and not in any other state or federal court in the United States of  America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of  the Delaware Court for purposes of any action or proceeding arising out of or in connection with  this Agreement, (iii) consent to service of process at the address set forth in Section 19 of this  Agreement with the same legal force and validity as if served upon such party personally within  the State of Delaware, (iv) waive any objection to the laying of venue of any such action or  proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim  that any such action or proceeding brought in the Delaware Court has been brought in an  improper or inconvenient forum.  Section 23. Headings.  The headings of the 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.  Section 24. 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.  Section 25. Monetary Damages Insufficient/Specific Enforcement.  The Company and  Indemnitee agree that a monetary remedy for breach of this Agreement may be inadequate,  





 






  16    impracticable and difficult of proof, and further agree that such breach may cause Indemnitee  irreparable harm. Accordingly, the parties hereto agree that Indemnitee may enforce this  Agreement by seeking injunctive relief and/or specific performance hereof, without any  necessity of showing actual damage or irreparable harm (having agreed that actual and  irreparable harm will result in not forcing the Company to specifically perform its obligations  pursuant to this Agreement) and that by seeking injunctive relief and/or specific performance,  Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be  entitled. The Company and Indemnitee further agree that Indemnitee shall be entitled to such  specific performance and injunctive relief, including temporary restraining orders, preliminary  injunctions and permanent injunctions, without the necessity of posting bonds or other  undertaking in connection therewith. The Company acknowledges that in the absence of a  waiver, a bond or undertaking may be required of Indemnitee by the Court, and the Company  hereby waives any such requirement of a bond or undertaking.  [Remainder of Page Intentionally Left Blank] 





 






      IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the  day and year first above written.          ZENDESK, INC.                        By:                    Name:                   Title:                                        [Name of Indemnitee]