1002-00004 · Pinnacle Venture Fund II LP · Transaction Documents

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CONFIDENTIAL — DRAFT — SUBJECT TO REVISION Calderwood & Harkness LLP — Matter No. 1002-00004

INDEMNIFICATION AGREEMENT

by and between

VERDANA SOFTWARE, INC. a Delaware corporation

and

MARCUS TREJO

Dated as of June 25, 2022

INDEMNIFICATION AGREEMENT

This INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of June 25, 2022, by and between Verdana Software, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company"), and Marcus Trejo, an individual (the "Indemnitee").

RECITALS

WHEREAS:

A. The Company is Verdana Software, Inc., a corporation duly incorporated and validly existing under the laws of the State of Delaware, with its principal place of business located at 1175 NW Couch Street, Suite 800, Portland, Oregon 97209, and its registered agent for service of process in the State of Delaware at c/o Cascade Systems, 1209 Orange Street, Wilmington, Delaware 19801 (Delaware Secretary of State File Number 6274913; Federal Employer Identification Number 93-1485726). The Company's Amended and Restated Certificate of Incorporation (as the same may be further amended, restated, supplemented, or otherwise modified from time to time, the "Certificate of Incorporation") and the Company's Amended and Restated Bylaws (as the same may be further amended, restated, supplemented, or otherwise modified from time to time, the "Bylaws") provide for indemnification of directors and officers of the Company to the fullest extent permitted by the Delaware General Corporation Law (as defined below);

B. Pinnacle Venture Fund II LP, a Delaware limited partnership ("Pinnacle"), is making an equity investment in the Company in the aggregate amount of Sixty Million Dollars ($60,000,000) through the purchase of shares of Series D Preferred Stock of the Company (the "Series D Preferred Stock") pursuant to that certain Series D Preferred Stock Purchase Agreement, dated as of or about the date hereof, by and among the Company, Pinnacle, and the other investors named therein (the "Purchase Agreement"). In connection with the transactions contemplated by the Purchase Agreement, the Company, Pinnacle, and certain other stockholders of the Company are entering into that certain Amended and Restated Voting Agreement (the "Voting Agreement"), pursuant to which, among other things, Pinnacle is entitled to designate one (1) member to the Company's Board of Directors (the "Board"). Following the closing of the transactions contemplated by the Purchase Agreement, the Board is to consist of seven (7) members: two (2) designees of the Company's founders, one (1) designee of Ridgeline Ventures Fund III LP, one (1) designee of Northgate Growth Partners Fund II LP, one (1) designee of Brindoval Capital Group LLC, one (1) designee of Pinnacle (the "Pinnacle Board Designee"), and one (1) independent director mutually agreed upon by the holders of a majority of the Company's common stock and a majority of the Company's preferred stock;

C. Indemnitee is Marcus Trejo, who serves as Partner and Head of Growth Equity at Pinnacle Capital Management LLC, a Delaware limited liability company (the general partner of Pinnacle Venture Fund II LP), with offices located at 2400 Sand Hill Road, Suite 310, Menlo Park, California 94025. Pinnacle has designated Indemnitee to serve as its initial representative on the Board in accordance with the terms of the Voting Agreement. If Pinnacle shall at any time designate a person other than Marcus Trejo to serve as the Pinnacle Board Designee, the Company shall enter into an indemnification agreement with such successor designee that is substantially identical to this Agreement. Indemnitee's willingness to serve as a director of the Company is expressly conditioned upon the Company's agreement to indemnify and advance Expenses (as defined below) to Indemnitee as set forth in this Agreement;

D. Section 145 of the Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code) authorizes corporations organized under the laws of the State of Delaware to indemnify their directors and officers under specified circumstances, and Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain exceptions. The Company recognizes the importance of attracting and retaining qualified individuals to serve as directors of the Company, and acknowledges that the increasing exposure of corporate directors to litigation risks and the difficulty and cost of obtaining adequate directors' and officers' liability insurance make the provision of robust, contractual indemnification rights necessary and appropriate in order to attract and retain such qualified individuals. This Agreement is intended as a supplement to, and in furtherance of, the indemnification provisions contained in the Company's Certificate of Incorporation and Bylaws and any resolutions heretofore or hereafter adopted by the Board, and shall not be deemed to limit or restrict any rights to indemnification arising thereunder;

E. In consideration of Indemnitee's agreement to serve or to continue to serve as a director of the Company, which the Company acknowledges is good and valuable consideration, the Company agrees to indemnify and advance Expenses to Indemnitee on the terms and subject to the conditions set forth in this Agreement, and Indemnitee agrees to serve or to continue to serve as a director of the Company in reliance upon the Company's covenants and agreements set forth herein.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

(a) "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended.

(b) "Board" shall mean the Board of Directors of the Company.

(i) Any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) acquires, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then-outstanding securities entitled to vote generally in the election of directors;

(ii) During any period of twenty-four (24) consecutive months, individuals who at the beginning of such period constituted the Board (together with any new directors whose election by the Board or whose nomination for election by the Company's stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board;

(iii) The consummation of a merger, consolidation, reorganization, or similar corporate transaction involving the Company, or the sale, lease, exchange, or other disposition of all or substantially all of the assets of the Company (in one transaction or a series of related transactions), unless, following such transaction, the holders of the Company's voting securities outstanding immediately prior to such transaction continue to hold (in substantially the same proportions as their ownership of the Company's voting securities immediately prior to such transaction) more than fifty percent (50%) of the combined voting power of the outstanding voting securities of the surviving or acquiring entity; or

(iv) The approval by the stockholders of the Company of a plan of complete liquidation or dissolution of the Company.

(d) "Claim" shall mean any threatened, pending, or completed action, suit, proceeding, or investigation, whether civil, criminal, administrative, investigative, legislative, or of any other nature, including any arbitration, mediation, or other alternative dispute resolution proceeding, and including any appeal therefrom. The term "Claim" shall be used interchangeably with the term "Proceeding" throughout this Agreement.

(e) "Company" shall mean Verdana Software, Inc., a Delaware corporation, and any successor thereto.

(f) "Corporate Status" shall describe the status of Indemnitee as a current or former director of the Company or as a current or former director, officer, employee, agent, or fiduciary of any Enterprise.

(g) "DGCL" shall mean the Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code), as the same may be amended, supplemented, or replaced from time to time.

(h) "Disinterested Director" shall mean a director of the Company who is not and was not a party to the Claim in respect of which indemnification or advancement of Expenses is sought by Indemnitee.

(i) "Enterprise" shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent, or fiduciary. For purposes of this Agreement, service "at the request of the Company" shall include any service as a director, officer, employee, agent, or fiduciary of another entity that imposes duties on, or involves services by, Indemnitee with respect to an employee benefit plan, its participants, or its beneficiaries, and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Company" for purposes of this Agreement.

(j) "Expenses" shall mean all reasonable and actually incurred or documented attorneys' fees, retainers, court costs, transcript costs, fees of experts and witnesses, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, the premium, security for, and other costs relating to any bond (including cost of appeal bonds, attachment bonds, or similar instruments), and all other disbursements, costs, and 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, settling, or otherwise participating in a Claim. "Expenses" shall also include (i) any federal, state, local, or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, (ii) Expenses incurred in connection with any appeal resulting from any Claim, including the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (iii) excise taxes and penalties assessed on Indemnitee with respect to an employee benefit plan under the Employee Retirement Income Security Act of 1974, as amended.

(k) "Final Disposition" shall mean a final, non-appealable adjudication by a court of competent jurisdiction, whether by judgment, order, or decree.

(l) "Indemnitee" shall mean Marcus Trejo, or such successor Pinnacle Board Designee as may be substituted in accordance with the Recitals to this Agreement.

(m) "Independent Counsel" shall mean a law firm, or a member of a law firm, that is experienced in matters of Delaware corporation law and neither is, nor in the five (5) years preceding its engagement has been, retained to represent (i) the Company or any of its Affiliates, (ii) Indemnitee, or (iii) any other party to the Claim giving rise to a claim for indemnification hereunder, in any matter material to any such party (other than with respect to matters concerning the rights of Indemnitee under this Agreement or other indemnification agreements of similar import). 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 Independent Counsel as provided herein.

(n) "Losses" shall mean any and all judgments, fines, penalties, excise taxes, amounts paid in settlement (including all interest, assessments, and other charges paid or payable in connection with or in respect of any of the foregoing), and Expenses.

(o) "Pinnacle" shall mean Pinnacle Venture Fund II LP, a Delaware limited partnership.

(p) "Proceeding" shall have the meaning set forth in the definition of "Claim" above and shall be used synonymously and interchangeably with the term "Claim" throughout this Agreement.

ARTICLE II — INDEMNIFICATION

Section 2.1 Indemnification in Third-Party Proceedings. Subject to Section 8.3, the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by the DGCL as in effect on the date hereof, or as the DGCL may hereafter be amended to broaden the scope of permissible indemnification (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the DGCL permitted the Company to provide prior to such amendment), against all Losses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with any Claim (other than a Claim by or in the right of the Company within the scope of Section 2.2) in which Indemnitee is, was, or at any time becomes a party, or is threatened to be made a party, or participates as a witness or otherwise, by reason of Indemnitee's Corporate Status, or by reason of any action or inaction on the part of Indemnitee while serving in any capacity referred to in Indemnitee's Corporate Status; provided, however, that such indemnification shall be available only if Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that Indemnitee's conduct was unlawful. The scope of indemnification under this Section 2.1 shall include, without limitation, Claims brought by third parties, governmental agencies, regulators, self-regulatory organizations, and any other person or entity, in any jurisdiction, whether domestic or foreign. The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.

Section 2.2 Indemnification in Proceedings by or in the Right of the Company. Subject to Section 8.3, the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by Section 145(b) of the DGCL, against all Losses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with any Claim brought by or in the right of the Company (including any derivative action) to procure a judgment in the Company's favor, in which Indemnitee is, was, or at any time becomes a party, or is threatened to be made a party, or participates as a witness or otherwise, by reason of Indemnitee's Corporate Status, or by reason of any action or inaction on the part of Indemnitee while serving in any capacity referred to in Indemnitee's Corporate Status; provided, however, that (a) such indemnification shall be available only if Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and (b) no indemnification for Losses shall be made under this Section 2.2 in respect of any Claim as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Claim was brought, 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 such court shall deem proper. Notwithstanding the foregoing, no indemnification shall be made under this Section 2.2 for amounts paid in settlement of any Claim without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed.

Section 2.3 Indemnification for Successful Defense. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is successful, on the merits or otherwise, in defense of any Claim (or in defense of any claim, issue, or matter therein), in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith, regardless of whether Indemnitee has met the standard of conduct set forth in Section 2.1 or Section 2.2. For purposes of this Section 2.3, and without limiting the generality of the foregoing, the term "successful on the merits or otherwise" shall include, but shall not be limited to, (a) any termination, withdrawal, or dismissal (with or without prejudice) of any Claim against Indemnitee without any express finding of liability or guilt against Indemnitee, (b) the settlement of any Claim where Indemnitee is not required to make any monetary payment or to admit liability or wrongdoing, and (c) any other termination of a Claim without a finding of liability or guilt against Indemnitee.

Section 2.4 Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of the Losses actually and reasonably incurred by Indemnitee in connection with a Claim, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for such portion of the Losses to which Indemnitee is entitled. Without limiting the generality of the foregoing, if any Claim is brought against Indemnitee in Indemnitee's capacity as a director of the Company and in one or more capacities other than as a director of the Company, the Company shall indemnify Indemnitee for the portion of the Losses incurred by Indemnitee in connection with such Claim that is attributable to Indemnitee's service as a director of the Company.

Section 2.5 Indemnification for Serving as a Witness. The Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Claim to which Indemnitee is not a named party but in which Indemnitee's appearance as a witness, deponent, interviewee, or other participant is compelled or requested by reason of Indemnitee's Corporate Status, including any Claim in which Indemnitee is called to testify or to produce documents or other information in Indemnitee's capacity as a current or former director of the Company or a current or former director, officer, employee, agent, or fiduciary of an Enterprise. This right of indemnification shall be in addition to, and not in limitation of, any other right of indemnification set forth in this Agreement.

ARTICLE III — ADVANCEMENT OF EXPENSES

Section 3.1 Right to Advancement. The Company shall advance all Expenses incurred by Indemnitee in connection with any Claim within thirty (30) days after receipt by the Company of a written statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after Final Disposition of such Claim. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded by the Undertaking described in Section 3.2 (if not previously delivered). Advances shall be unsecured and interest-free. Indemnitee's right to advancement of Expenses shall include the right to advancement of Expenses incurred by Indemnitee in connection with any Claim relating to any period during which Indemnitee served as a director of the Company, regardless of when such Claim is asserted.

Section 3.2 Undertaking to Repay. In connection with any request for advancement of Expenses under this Article III, Indemnitee shall execute and deliver to the Company an undertaking substantially in the form attached hereto as Exhibit A (the "Undertaking"), pursuant to which Indemnitee shall agree to repay any amounts advanced by the Company to the extent that it is ultimately determined by Final Disposition that Indemnitee is not entitled to indemnification under this Agreement. The Undertaking shall be accepted by the Company without reference to Indemnitee's financial ability to make repayment and without any requirement for the posting of a bond, surety, or other security by Indemnitee. No other form of undertaking shall be required of Indemnitee, and the Company hereby acknowledges and agrees that the Undertaking provided for in this Section 3.2 shall be sufficient for all purposes of Section 145(e) of the DGCL.

Section 3.3 Documentation. In connection with any request for advancement of Expenses, Indemnitee shall submit to the Company reasonably detailed documentation substantiating the Expenses for which advancement is sought. Such documentation may include, but shall not be limited to, copies of invoices from counsel, expense receipts, fee statements, and other evidence of Expenses incurred; provided, however, that Indemnitee may redact from any such documentation any information that is protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection, and such redaction shall not affect Indemnitee's entitlement to advancement of Expenses hereunder. The Company shall not delay or condition the advancement of Expenses pending the Company's review or verification of Indemnitee's documentation beyond the thirty (30) day period set forth in Section 3.1.

ARTICLE IV — PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION

Section 4.1 Request for Indemnification. Indemnitee shall submit a written request for indemnification to the General Counsel of the Company (currently Sandra Mikkelsen), or if no General Counsel is then serving, to the Chief Executive Officer of the Company (currently Raj Anand), specifying the Claim for which indemnification is sought, the basis upon which indemnification is claimed, and the aggregate amount of Losses incurred or expected to be incurred by Indemnitee in connection with such Claim. Such request shall be accompanied by such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine Indemnitee's entitlement to indemnification. The Company shall make a determination regarding Indemnitee's entitlement to indemnification within sixty (60) days of the Company's receipt of such request. The failure of Indemnitee to provide the Company with all requested documentation shall not affect Indemnitee's right to indemnification under this Agreement or relieve the Company of its obligations hereunder, except to the extent that the Company's ability to make the determination required by Section 4.2 is materially and adversely affected by such failure.

Section 4.2 Determination of Entitlement. The determination of Indemnitee's entitlement to indemnification under this Agreement (to the extent such determination is required by the DGCL) shall be made in the specific case by one of the following methods, as determined by the Board:

(a) By a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

(b) By a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

(d) By the stockholders of the Company.

Notwithstanding the foregoing, if a Change of Control has occurred and Indemnitee so requests in writing, the determination of Indemnitee's entitlement to indemnification shall be made by Independent Counsel selected by Indemnitee and approved by the Company, such approval not to be unreasonably withheld, conditioned, or delayed. In the event that the Company and Indemnitee are unable to agree upon the selection of Independent Counsel within twenty (20) days following Indemnitee's request, the selection of Independent Counsel shall be made by the Court of Chancery of the State of Delaware upon application by Indemnitee.

Section 4.3 Selection of Independent Counsel. In the event that a determination of Indemnitee's entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4.2, the Company shall select such Independent Counsel and shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. Indemnitee may, within ten (10) business days after receipt of such notice, deliver to the Company a written objection to such selection, setting forth with specificity the reasons why the selected counsel does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(m). If Indemnitee so objects, the Company shall select a replacement Independent Counsel and give notice thereof to Indemnitee, and Indemnitee may, within five (5) business days after receipt of such further notice, object to the replacement selection in the same manner as described above. If Indemnitee objects to the replacement selection, the determination of Independent Counsel shall be made by the Court of Chancery of the State of Delaware upon application by Indemnitee or the Company. Notwithstanding the foregoing, following a Change of Control, Indemnitee shall select the Independent Counsel, subject to the Company's reasonable approval as provided in Section 4.2. In all cases, the Company shall pay the reasonable fees and expenses of Independent Counsel in connection with its services under this Article IV and shall fully indemnify such counsel against any costs, expenses, and liabilities arising out of or relating to such engagement.

Section 4.4 Presumptions Favorable to Indemnitee. In making any determination of Indemnitee's entitlement to indemnification under this Agreement, Indemnitee shall be presumed to be entitled to indemnification, and the Company (or, in the case of determination by Independent Counsel, Independent Counsel) shall have the burden of proof to overcome such presumption by clear and convincing evidence. Neither the failure of the Company (including the Board, Independent Counsel, or the stockholders) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including the Board, Independent Counsel, or the stockholders) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.

Section 4.5 Failure to Make Determination. If the Company fails to make a determination of Indemnitee's entitlement to indemnification within the sixty (60) day period specified in Section 4.1, such failure shall constitute a determination by the Company that Indemnitee is entitled to indemnification with respect to the Claim for which indemnification was sought, and the Company shall be deemed to have approved such indemnification. In such event, the Company shall promptly pay all Losses as to which indemnification was requested, and Indemnitee shall not be required to take any further action to establish entitlement to such indemnification.

ARTICLE V — REMEDIES OF INDEMNITEE

Section 5.1 Right to Adjudication. In the event that (a) a determination is made pursuant to Article IV that Indemnitee is not entitled to indemnification under this Agreement, in whole or in part, (b) advancement of Expenses is not timely made within thirty (30) days of receipt by the Company of a request for advancement in accordance with Article III, (c) no determination of Indemnitee's entitlement to indemnification shall have been made within the sixty (60) day period specified in Section 4.1 and payment of indemnification has not been made, (d) payment of indemnification is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (e) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any action, suit, proceeding, or investigation designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee under this Agreement, Indemnitee shall have the right to commence an action in the Court of Chancery of the State of Delaware, or in any other court of competent jurisdiction, to recover the unpaid amount of any indemnification or advancement of Expenses due and owing under this Agreement. It shall be a defense to any such action brought by Indemnitee (other than an action brought to enforce a claim for advancement of Expenses) that Indemnitee has not met the applicable standard of conduct set forth in the DGCL for indemnification, but the Company shall bear the burden of proving such defense by clear and convincing evidence. The Company shall not oppose Indemnitee's right to seek any such adjudication, and the Company hereby consents to the jurisdiction of the courts specified in this Section 5.1 for purposes of any such proceeding.

Section 5.2 Burden of Proof in Adjudication. In any judicial proceeding brought pursuant to Section 5.1, the Company shall bear the burden of proving, by clear and convincing evidence, that Indemnitee is not entitled to indemnification or advancement of Expenses under this Agreement, and the Company shall not be permitted to assert in any such proceeding the defense that a prior determination was made by the Board, Independent Counsel, or the Company's stockholders that Indemnitee is not entitled to indemnification, or that Indemnitee has not met any particular standard of conduct. The Court of Chancery of the State of Delaware, or such other court in which a proceeding is brought, is hereby authorized and requested to make an independent determination of Indemnitee's entitlement to indemnification, without giving any deference to any prior determination made by the Company.

Section 5.3 Expenses of Enforcement. In the event that Indemnitee is successful, in whole or in part, in any proceeding brought pursuant to Section 5.1 or otherwise to enforce Indemnitee's rights under this Agreement, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such enforcement proceeding, including attorneys' fees, court costs, expert fees, and all other costs of prosecution and appeal. For purposes of this Section 5.3, Indemnitee shall be deemed to be "successful" if Indemnitee obtains any relief, whether by judgment, order, settlement, or otherwise, that increases the amount of indemnification or advancement to which Indemnitee is entitled under any prior determination.

ARTICLE VI — DIRECTORS' AND OFFICERS' LIABILITY INSURANCE

Section 6.1 Obligation to Maintain D&O Insurance. The Company shall obtain and maintain, at its sole cost and expense, a policy or policies of directors' and officers' liability insurance (the "D&O Policy") covering Indemnitee, with coverage terms, conditions, retentions, and limits at least as favorable as the D&O Policy in effect as of the date of this Agreement or, if no such policy is in effect as of the date hereof, a D&O Policy with commercially reasonable coverage and aggregate limits of not less than Ten Million Dollars ($10,000,000). The D&O Policy shall include coverage for the Company's indemnification obligations under this Agreement, and shall name Indemnitee as an insured thereunder. The Company shall maintain such D&O Policy (or a replacement policy or policies with substantially equivalent coverage) throughout the entire period during which Indemnitee serves as a director of the Company and shall maintain a tail or extended reporting period policy with substantially equivalent coverage for a period of not less than six (6) years following the date on which Indemnitee ceases to serve as a director of the Company. The Company shall use commercially reasonable efforts to ensure that the D&O Policy provides coverage for Claims arising out of acts, omissions, or events occurring during the period of Indemnitee's service, regardless of when such Claims are first made.

Section 6.2 Notice of Reduction or Cancellation. The Company shall provide Indemnitee with written notice at least thirty (30) days prior to (a) any material reduction in coverage under the D&O Policy, (b) any material increase in the premiums for such coverage, or (c) any cancellation or non-renewal of the D&O Policy. For purposes of this Section 6.2, a "material reduction in coverage" shall include, without limitation, any reduction in policy limits, any increase in the self-insured retention or deductible applicable to directors, any addition of exclusions that would adversely affect the scope of coverage available to Indemnitee, or any change in the definition of "insured" that would exclude Indemnitee from coverage.

Section 6.3 No Limitation by Insurance. The Company's obligations to indemnify and to advance Expenses to Indemnitee under this Agreement shall not be diminished, reduced, or otherwise affected by (a) the existence or absence of any D&O Policy, (b) the availability or unavailability of any insurance proceeds thereunder, (c) any coverage limitations or exclusions contained in any D&O Policy, or (d) any denial of coverage or reservation of rights by any insurer under any D&O Policy. In the event that the Company's D&O insurer denies coverage for any Claim or Losses for which Indemnitee is entitled to indemnification under this Agreement, the Company's obligations under this Agreement shall remain fully in effect and enforceable, and the Company shall promptly pay all amounts due hereunder without regard to such denial of coverage.

Section 6.4 Subrogation. In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against any insurer, and Indemnitee shall execute all papers required and take all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. Indemnitee shall do nothing after the date hereof to prejudice the Company's rights of subrogation.

ARTICLE VII — CERTAIN ADDITIONAL PROVISIONS

Section 7.1 No Duplication of Payments. The Company shall not be liable under this Agreement to pay any amounts otherwise indemnifiable hereunder to the extent that Indemnitee has already received payment for such amounts from any other source, including insurance proceeds under any D&O Policy, indemnification payments under the Company's Certificate of Incorporation or Bylaws, or payments under any other indemnification arrangement; provided, however, that if the total amount received by Indemnitee from all such other sources is less than the full amount of the Losses to which Indemnitee is entitled to indemnification under this Agreement, the Company shall pay the amount of the deficiency. Nothing in this Section 7.1 shall be construed to reduce or limit Indemnitee's right to receive the full amount of indemnification to which Indemnitee is entitled under this Agreement.

Section 7.2 Contribution. If the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason other than an exclusion based on Indemnitee's failure to meet the applicable standard of conduct set forth in Section 2.1 or Section 2.2 of this Agreement, then, in respect of any Claim in which the Company is jointly liable with Indemnitee (or would be if joined in such Claim), the Company shall contribute to the amount of Losses actually and reasonably incurred and paid or payable by Indemnitee in such proportion as is appropriate to reflect (a) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other hand, from the transaction or events giving rise to such Claim, and (b) the relative fault of the Company, on the one hand, and Indemnitee, on the other hand, in connection with such transaction or events, as well as any other relevant equitable considerations. The relative fault of the Company and Indemnitee shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent the circumstances resulting in such Losses. The Company and Indemnitee agree that it would not be just and equitable if contribution pursuant to this Section 7.2 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 7.2.

Section 7.3 Rights Not Exclusive. The indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under the Company's Certificate of Incorporation, the Company's Bylaws, any other agreement, any vote of stockholders, any resolution of directors, the DGCL, or otherwise, both as to action in Indemnitee's official capacity as a director of the Company and as to action in any other capacity while serving as a director of the Company. Without limiting the foregoing, the Company specifically acknowledges that Indemnitee's rights to indemnification and advancement under the Company's Amended and Restated Certificate of Incorporation (as the same may be further amended, restated, supplemented, or otherwise modified in connection with the Series D Preferred Stock issuance or otherwise) and the Company's Bylaws shall supplement the rights provided under this Agreement, and neither this Agreement nor any right hereunder shall be deemed to limit, diminish, or supersede any right to indemnification or advancement that Indemnitee may have under such other sources. To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under this Agreement, the Certificate of Incorporation, or the Bylaws, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.

Section 7.4 Indemnification for Pinnacle-Related Activities. Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement shall be construed to obligate the Company to indemnify Indemnitee for any actions taken, or omissions made, solely in Indemnitee's capacity as a partner, officer, employee, or agent of Pinnacle Capital Management LLC or Pinnacle Venture Fund II LP, or any of their respective Affiliates, except to the extent that such actions or omissions also constitute service in Indemnitee's capacity as a director of the Company or as a director, officer, employee, agent, or fiduciary of an Enterprise. For the avoidance of doubt, the Company acknowledges that Indemnitee's service on the Board inherently involves activities and communications that may relate to Pinnacle's investment in the Company, and this Section 7.4 shall not be construed to exclude from indemnification any actions or omissions that fall within the scope of Indemnitee's service as a director of the Company.

Section 7.5 No Personal Liability of Directors, Officers, or Stockholders. No director, officer, employee, agent, or stockholder of the Company shall have any personal liability to Indemnitee for any breach by the Company of its obligations under this Agreement. Indemnitee's sole remedy for any breach of this Agreement by the Company shall be against the Company itself, and Indemnitee shall not have any right of recovery against any director, officer, employee, agent, or stockholder of the Company.

Section 7.6 Settlements. The Company shall not, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld, conditioned, or delayed), effect any settlement of any pending or threatened Claim in a manner that would (a) impose any monetary liability, penalty, fine, or obligation on Indemnitee, (b) impose any restriction or limitation on the conduct, activities, or business of Indemnitee, (c) require any admission of fault, culpability, wrongdoing, or violation of law by Indemnitee, or (d) adversely affect Indemnitee's reputation or standing in the business community. The Company shall promptly notify Indemnitee of any proposed settlement of any Claim that could affect Indemnitee's rights or obligations hereunder.

Section 7.7 Notice of Claims. Indemnitee shall give the Company prompt written notice upon becoming aware of any Claim for which indemnification or advancement of Expenses may be sought under this Agreement; provided, however, that the failure of Indemnitee to give such notice shall not relieve the Company of any of its obligations under this Agreement, except to the extent that the Company demonstrates that it has been materially and actually prejudiced by such failure to give timely notice. Notice shall be directed to the General Counsel of the Company (or, if no General Counsel is then serving, to the Chief Executive Officer of the Company) at the address set forth in Section 10.6. Such notice shall include a description of the nature of the Claim, the parties involved, and the factual basis upon which Indemnitee believes indemnification or advancement of Expenses is available under this Agreement.

Section 7.8 Defense of Claims. With respect to any Claim for which indemnification is sought under this Agreement:

(a) The Company shall be entitled to assume the defense of any such Claim, with counsel selected by the Company and reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of the Company's election to do so. After delivery of such notice, the Company shall not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Claim by separate counsel retained by Indemnitee, except as provided in Section 7.8(b) below. Indemnitee shall have the right to employ Indemnitee's own counsel in connection with any such Claim, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been previously authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (iii) the Company shall not, in fact, have employed counsel to assume the defense of such Claim within a reasonable period of time following receipt of notice of such Claim, in each of which cases the fees and expenses of Indemnitee's counsel shall be Expenses for purposes of this Agreement.

(b) Notwithstanding the provisions of Section 7.8(a), Indemnitee shall have the right to employ separate counsel (and the Company shall pay the reasonable fees and expenses of such separate counsel as Expenses under this Agreement) if (i) the Company's counsel has a conflict of interest that would, under the applicable standards of professional conduct, preclude such counsel from representing both the Company and Indemnitee, (ii) Indemnitee reasonably concludes, based upon advice of counsel, that there may be legal defenses available to Indemnitee that are different from, additional to, or inconsistent with those available to the Company, or (iii) following a Change of Control, Indemnitee requests separate representation. In any such case, the costs and expenses of separate counsel retained by Indemnitee shall constitute Expenses subject to indemnification and advancement under this Agreement.

(c) The Company shall not be entitled to assume the defense of any Claim brought by the Company or any of its Affiliates, or any Claim in which the Company is a complainant or plaintiff. Indemnitee shall have the right to retain counsel of Indemnitee's choosing in connection with any such Claim, and the reasonable fees and expenses of such counsel shall be Expenses under this Agreement.

ARTICLE VIII — EXCEPTIONS TO INDEMNIFICATION

Section 8.1 Actions Initiated by Indemnitee. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to indemnify or advance Expenses to Indemnitee with respect to any Claim initiated or brought voluntarily by Indemnitee against the Company or any of its directors, officers, or employees, unless (a) the Board authorized the initiation of such Claim prior to its commencement, (b) the Company provides such indemnification, in its sole and absolute discretion, pursuant to the powers vested in the Company under applicable law, or (c) the Claim is brought by Indemnitee to enforce Indemnitee's rights under this Agreement, in which case Section 5.3 shall govern the indemnification of Expenses incurred by Indemnitee in connection therewith. For purposes of this Section 8.1, a Claim shall not be deemed to have been "initiated" by Indemnitee if such Claim was commenced as a counterclaim or cross-claim by Indemnitee in response to a Claim brought against Indemnitee.

Section 8.2 Section 16(b) Liability. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to make any payment under this Agreement in respect of any Losses arising from the recovery of profits by Indemnitee pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of any applicable state or foreign statute or regulation. For the avoidance of doubt, this exception does not extend to Expenses incurred by Indemnitee in defending against any claim brought under Section 16(b), which Expenses shall remain subject to advancement and indemnification in accordance with the other provisions of this Agreement, to the extent Indemnitee is otherwise entitled thereto.

Section 8.3 Prohibited Indemnification. Notwithstanding any other provision of this Agreement, no indemnification or advancement of Expenses shall be made under this Agreement to the extent that such indemnification or advancement would be prohibited by applicable law, including the DGCL, as in effect at the time of such indemnification or advancement. In the event that any provision of this Agreement would be held to authorize indemnification or advancement of Expenses not permitted under the DGCL or other applicable law, such provision shall be deemed modified to the minimum extent necessary to render it consistent with applicable law, and, as so modified, such provision and the remainder of this Agreement shall remain in full force and effect. The Company shall use its best efforts to interpret and apply this Agreement in a manner that maximizes the indemnification and advancement of Expenses available to Indemnitee under applicable law.

ARTICLE IX — DURATION AND SCOPE

Section 9.1 Duration. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect during the entire period that Indemnitee serves as a director of the Company and thereafter for so long as Indemnitee may be subject to any possible Claim arising from, related to, or by reason of Indemnitee's Corporate Status, regardless of whether this Agreement has been terminated by the Company or by operation of law. Without limiting the generality of the foregoing, the Company's obligations under this Agreement shall survive for the longer of (a) ten (10) years after the date on which Indemnitee ceases to serve as a director of the Company, or (b) the date of the final resolution (including the expiration of all applicable statutes of limitations and the exhaustion of all rights of appeal) of any pending or threatened Claim that is the subject of a request for indemnification or advancement of Expenses under this Agreement. This Agreement shall not be terminated, and the Company's obligations hereunder shall not be affected, by Indemnitee's resignation or removal from the Board, or by any change in Indemnitee's Corporate Status.

Section 9.2 Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor (by purchase, merger, consolidation, reorganization, or otherwise) to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee's heirs, executors, administrators, and legal representatives. The Company shall not consummate any merger, consolidation, reorganization, sale of all or substantially all assets, or other similar transaction unless and until the surviving, resulting, or acquiring entity expressly assumes and agrees, by written instrument in form and substance reasonably satisfactory to Indemnitee, to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such transaction had taken place. The Company's failure to obtain such assumption and agreement prior to the consummation of any such transaction shall constitute a breach of this Agreement and shall entitle Indemnitee to all remedies available hereunder.

ARTICLE X — GENERAL PROVISIONS

Section 10.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 10.2 Consent to Jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally (a) consents to the exclusive jurisdiction of the courts of the State of Delaware, including the Court of Chancery of the State of Delaware, and the United States District Court for the District of Delaware, for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of any such action, suit, or proceeding shall be heard and determined exclusively in such courts, (c) waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, including any objection based on the doctrine of forum non conveniens, and (d) agrees not to commence any action, suit, or proceeding arising out of or relating to this Agreement in any court other than those specified above. Each of the parties hereto consents to service of process by any means permitted by applicable law.

Section 10.3 Entire Agreement. This Agreement, together with the Company's Certificate of Incorporation and Bylaws (as each may be amended, restated, supplemented, or otherwise modified from time to time), constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, warranties, commitments, agreements, and understandings (whether oral or written) between the parties with respect to indemnification of Indemnitee in connection with Indemnitee's service as a director of the Company. No provision of this Agreement shall be interpreted as reducing or limiting the scope of any right of Indemnitee to indemnification or advancement of Expenses under the Company's Certificate of Incorporation or Bylaws.

Section 10.4 Amendment and Waiver. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument duly executed by both the Company and Indemnitee. No waiver by either party of any breach or default hereunder shall operate as a waiver of any subsequent breach or default, whether of the same or a different provision, and no single or partial exercise of any right, power, or remedy hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that either party may otherwise have at law or in equity.

Section 10.5 Severability. If any provision of this Agreement (or any portion thereof) shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, (a) such provision shall be modified by such court to the minimum extent necessary to make it valid, legal, and enforceable, and, as so modified, such provision shall be enforced as modified, and (b) the validity, legality, and enforceability of the remaining provisions of this Agreement (and each portion thereof) shall not in any way be affected or impaired thereby. The parties hereto agree that they would have entered into this Agreement regardless of any such invalidity, illegality, or unenforceability.

Section 10.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and received (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) three (3) business days after deposit in the United States mail, postage prepaid, by certified or registered mail, with return receipt requested, or (d) one (1) business day after deposit with a nationally recognized overnight courier service, specifying next-day delivery, in each case addressed to the party to be notified as follows (or at such other address as may be provided by such party by notice given in accordance with this Section 10.6):

If to the Company:

Verdana Software, Inc.

Attn: General Counsel (Sandra Mikkelsen)

1175 NW Couch Street, Suite 800 Portland, Oregon 97209

With a copy (which shall not constitute notice) to:

Langford Price & Associates LLP

Attn: Jonathan Hale

1000 SW Broadway, Suite 1600 Portland, Oregon 97205

If to Indemnitee:

Marcus Trejo c/o Pinnacle Capital Management LLC 2400 Sand Hill Road, Suite 310 Menlo Park, California 94025

With a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP

Attn: Harrison Wexford

101 Montgomery Street, Suite 3500 San Francisco, California 94104

Section 10.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (.pdf), or other electronic means (including via any electronic signature platform) shall be as effective as delivery of a manually executed counterpart, and each such counterpart shall be deemed an original for all purposes.

Section 10.8 Headings. The headings and captions contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. All references in this Agreement to articles, sections, subsections, and exhibits are references to articles, sections, subsections, and exhibits of this Agreement unless otherwise specified.

Section 10.9 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement, and in the event of an ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision hereof. As used in this Agreement, the term "including" shall mean "including, without limitation," and such term shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. References to any statute or statutory provision shall include any amendment, supplement, modification, re-enactment, or successor provision thereof. Words in the singular shall include the plural, and vice versa, and words of one gender shall include each other gender, in each case as the context requires or permits. The words "herein," "hereof," "hereunder," "hereby," and "herewith" refer to this Agreement as a whole.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the date first written above.

THE COMPANY:

VERDANA SOFTWARE, INC.

By: ________

Name: Raj Anand

Title: Chief Executive Officer & Co-Founder

Date: ________

INDEMNITEE:

________________________________________

Name: Marcus Trejo

Date: ________

EXHIBIT A

FORM OF UNDERTAKING

(to be executed in connection with requests for advancement of Expenses under Article III of the Indemnification Agreement)

Verdana Software, Inc.

Attn: General Counsel (Sandra Mikkelsen)

1175 NW Couch Street, Suite 800 Portland, Oregon 97209

Re: Undertaking Pursuant to Indemnification Agreement Dated June 25, 2022

Dear Ms. Mikkelsen:

Reference is made to that certain Indemnification Agreement, dated as of June 25, 2022 (the "Indemnification Agreement"), by and between Verdana Software, Inc., a Delaware corporation (the "Company"), and the undersigned ("Indemnitee"). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indemnification Agreement.

Indemnitee hereby requests advancement of Expenses pursuant to Article III of the Indemnification Agreement in connection with the following Claim:

Description of Claim: ________

Court/Forum (if applicable): ________

Case/Matter Number (if applicable): ________

Amount of Expenses for which advancement is sought: $________

Period covered by this request: ________

In accordance with Section 3.2 of the Indemnification Agreement and Section 145(e) of the Delaware General

CONFIDENTIAL — DRAFT — SUBJECT TO REVISION Calderwood & Harkness LLP — Matter No. 1002-00004
INDEMNIFICATION AGREEMENT
by and between
VERDANA SOFTWARE, INC. a Delaware corporation
and
MARCUS TREJO
Dated as of June 25, 2022
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of June 25, 2022, by and between Verdana Software, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company"), and Marcus Trejo, an individual (the "Indemnitee").
RECITALS
WHEREAS:
A. The Company is Verdana Software, Inc., a corporation duly incorporated and validly existing under the laws of the State of Delaware, with its principal place of business located at 1175 NW Couch Street, Suite 800, Portland, Oregon 97209, and its registered agent for service of process in the State of Delaware at c/o Cascade Systems, 1209 Orange Street, Wilmington, Delaware 19801 (Delaware Secretary of State File Number 6274913; Federal Employer Identification Number 93-1485726). The Company's Amended and Restated Certificate of Incorporation (as the same may be further amended, restated, supplemented, or otherwise modified from time to time, the "Certificate of Incorporation") and the Company's Amended and Restated Bylaws (as the same may be further amended, restated, supplemented, or otherwise modified from time to time, the "Bylaws") provide for indemnification of directors and officers of the Company to the fullest extent permitted by the Delaware General Corporation Law (as defined below);
B. Pinnacle Venture Fund II LP, a Delaware limited partnership ("Pinnacle"), is making an equity investment in the Company in the aggregate amount of Sixty Million Dollars ($60,000,000) through the purchase of shares of Series D Preferred Stock of the Company (the "Series D Preferred Stock") pursuant to that certain Series D Preferred Stock Purchase Agreement, dated as of or about the date hereof, by and among the Company, Pinnacle, and the other investors named therein (the "Purchase Agreement"). In connection with the transactions contemplated by the Purchase Agreement, the Company, Pinnacle, and certain other stockholders of the Company are entering into that certain Amended and Restated Voting Agreement (the "Voting Agreement"), pursuant to which, among other things, Pinnacle is entitled to designate one (1) member to the Company's Board of Directors (the "Board"). Following the closing of the transactions contemplated by the Purchase Agreement, the Board is to consist of seven (7) members: two (2) designees of the Company's founders, one (1) designee of Ridgeline Ventures Fund III LP, one (1) designee of Northgate Growth Partners Fund II LP, one (1) designee of Brindoval Capital Group LLC, one (1) designee of Pinnacle (the "Pinnacle Board Designee"), and one (1) independent director mutually agreed upon by the holders of a majority of the Company's common stock and a majority of the Company's preferred stock;
C. Indemnitee is Marcus Trejo, who serves as Partner and Head of Growth Equity at Pinnacle Capital Management LLC, a Delaware limited liability company (the general partner of Pinnacle Venture Fund II LP), with offices located at 2400 Sand Hill Road, Suite 310, Menlo Park, California 94025. Pinnacle has designated Indemnitee to serve as its initial representative on the Board in accordance with the terms of the Voting Agreement. If Pinnacle shall at any time designate a person other than Marcus Trejo to serve as the Pinnacle Board Designee, the Company shall enter into an indemnification agreement with such successor designee that is substantially identical to this Agreement. Indemnitee's willingness to serve as a director of the Company is expressly conditioned upon the Company's agreement to indemnify and advance Expenses (as defined below) to Indemnitee as set forth in this Agreement;
D. Section 145 of the Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code) authorizes corporations organized under the laws of the State of Delaware to indemnify their directors and officers under specified circumstances, and Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain exceptions. The Company recognizes the importance of attracting and retaining qualified individuals to serve as directors of the Company, and acknowledges that the increasing exposure of corporate directors to litigation risks and the difficulty and cost of obtaining adequate directors' and officers' liability insurance make the provision of robust, contractual indemnification rights necessary and appropriate in order to attract and retain such qualified individuals. This Agreement is intended as a supplement to, and in furtherance of, the indemnification provisions contained in the Company's Certificate of Incorporation and Bylaws and any resolutions heretofore or hereafter adopted by the Board, and shall not be deemed to limit or restrict any rights to indemnification arising thereunder;
E. In consideration of Indemnitee's agreement to serve or to continue to serve as a director of the Company, which the Company acknowledges is good and valuable consideration, the Company agrees to indemnify and advance Expenses to Indemnitee on the terms and subject to the conditions set forth in this Agreement, and Indemnitee agrees to serve or to continue to serve as a director of the Company in reliance upon the Company's covenants and agreements set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
(a) "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Change of Control" shall mean the occurrence of any of the following events:
(i) Any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) acquires, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then-outstanding securities entitled to vote generally in the election of directors;
(ii) During any period of twenty-four (24) consecutive months, individuals who at the beginning of such period constituted the Board (together with any new directors whose election by the Board or whose nomination for election by the Company's stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board;
(iii) The consummation of a merger, consolidation, reorganization, or similar corporate transaction involving the Company, or the sale, lease, exchange, or other disposition of all or substantially all of the assets of the Company (in one transaction or a series of related transactions), unless, following such transaction, the holders of the Company's voting securities outstanding immediately prior to such transaction continue to hold (in substantially the same proportions as their ownership of the Company's voting securities immediately prior to such transaction) more than fifty percent (50%) of the combined voting power of the outstanding voting securities of the surviving or acquiring entity; or
(iv) The approval by the stockholders of the Company of a plan of complete liquidation or dissolution of the Company.
(d) "Claim" shall mean any threatened, pending, or completed action, suit, proceeding, or investigation, whether civil, criminal, administrative, investigative, legislative, or of any other nature, including any arbitration, mediation, or other alternative dispute resolution proceeding, and including any appeal therefrom. The term "Claim" shall be used interchangeably with the term "Proceeding" throughout this Agreement.
(e) "Company" shall mean Verdana Software, Inc., a Delaware corporation, and any successor thereto.
(f) "Corporate Status" shall describe the status of Indemnitee as a current or former director of the Company or as a current or former director, officer, employee, agent, or fiduciary of any Enterprise.
(g) "DGCL" shall mean the Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code), as the same may be amended, supplemented, or replaced from time to time.
(h) "Disinterested Director" shall mean a director of the Company who is not and was not a party to the Claim in respect of which indemnification or advancement of Expenses is sought by Indemnitee.
(i) "Enterprise" shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent, or fiduciary. For purposes of this Agreement, service "at the request of the Company" shall include any service as a director, officer, employee, agent, or fiduciary of another entity that imposes duties on, or involves services by, Indemnitee with respect to an employee benefit plan, its participants, or its beneficiaries, and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Company" for purposes of this Agreement.
(j) "Expenses" shall mean all reasonable and actually incurred or documented attorneys' fees, retainers, court costs, transcript costs, fees of experts and witnesses, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, the premium, security for, and other costs relating to any bond (including cost of appeal bonds, attachment bonds, or similar instruments), and all other disbursements, costs, and 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, settling, or otherwise participating in a Claim. "Expenses" shall also include (i) any federal, state, local, or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, (ii) Expenses incurred in connection with any appeal resulting from any Claim, including the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (iii) excise taxes and penalties assessed on Indemnitee with respect to an employee benefit plan under the Employee Retirement Income Security Act of 1974, as amended.
(k) "Final Disposition" shall mean a final, non-appealable adjudication by a court of competent jurisdiction, whether by judgment, order, or decree.
(l) "Indemnitee" shall mean Marcus Trejo, or such successor Pinnacle Board Designee as may be substituted in accordance with the Recitals to this Agreement.
(m) "Independent Counsel" shall mean a law firm, or a member of a law firm, that is experienced in matters of Delaware corporation law and neither is, nor in the five (5) years preceding its engagement has been, retained to represent (i) the Company or any of its Affiliates, (ii) Indemnitee, or (iii) any other party to the Claim giving rise to a claim for indemnification hereunder, in any matter material to any such party (other than with respect to matters concerning the rights of Indemnitee under this Agreement or other indemnification agreements of similar import). 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 Independent Counsel as provided herein.
(n) "Losses" shall mean any and all judgments, fines, penalties, excise taxes, amounts paid in settlement (including all interest, assessments, and other charges paid or payable in connection with or in respect of any of the foregoing), and Expenses.
(o) "Pinnacle" shall mean Pinnacle Venture Fund II LP, a Delaware limited partnership.
(p) "Proceeding" shall have the meaning set forth in the definition of "Claim" above and shall be used synonymously and interchangeably with the term "Claim" throughout this Agreement.
ARTICLE II — INDEMNIFICATION
Section 2.1 Indemnification in Third-Party Proceedings. Subject to Section 8.3, the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by the DGCL as in effect on the date hereof, or as the DGCL may hereafter be amended to broaden the scope of permissible indemnification (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the DGCL permitted the Company to provide prior to such amendment), against all Losses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with any Claim (other than a Claim by or in the right of the Company within the scope of Section 2.2) in which Indemnitee is, was, or at any time becomes a party, or is threatened to be made a party, or participates as a witness or otherwise, by reason of Indemnitee's Corporate Status, or by reason of any action or inaction on the part of Indemnitee while serving in any capacity referred to in Indemnitee's Corporate Status; provided, however, that such indemnification shall be available only if Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that Indemnitee's conduct was unlawful. The scope of indemnification under this Section 2.1 shall include, without limitation, Claims brought by third parties, governmental agencies, regulators, self-regulatory organizations, and any other person or entity, in any jurisdiction, whether domestic or foreign. The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.
Section 2.2 Indemnification in Proceedings by or in the Right of the Company. Subject to Section 8.3, the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by Section 145(b) of the DGCL, against all Losses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with any Claim brought by or in the right of the Company (including any derivative action) to procure a judgment in the Company's favor, in which Indemnitee is, was, or at any time becomes a party, or is threatened to be made a party, or participates as a witness or otherwise, by reason of Indemnitee's Corporate Status, or by reason of any action or inaction on the part of Indemnitee while serving in any capacity referred to in Indemnitee's Corporate Status; provided, however, that (a) such indemnification shall be available only if Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and (b) no indemnification for Losses shall be made under this Section 2.2 in respect of any Claim as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Claim was brought, 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 such court shall deem proper. Notwithstanding the foregoing, no indemnification shall be made under this Section 2.2 for amounts paid in settlement of any Claim without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed.
Section 2.3 Indemnification for Successful Defense. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is successful, on the merits or otherwise, in defense of any Claim (or in defense of any claim, issue, or matter therein), in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith, regardless of whether Indemnitee has met the standard of conduct set forth in Section 2.1 or Section 2.2. For purposes of this Section 2.3, and without limiting the generality of the foregoing, the term "successful on the merits or otherwise" shall include, but shall not be limited to, (a) any termination, withdrawal, or dismissal (with or without prejudice) of any Claim against Indemnitee without any express finding of liability or guilt against Indemnitee, (b) the settlement of any Claim where Indemnitee is not required to make any monetary payment or to admit liability or wrongdoing, and (c) any other termination of a Claim without a finding of liability or guilt against Indemnitee.
Section 2.4 Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of the Losses actually and reasonably incurred by Indemnitee in connection with a Claim, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for such portion of the Losses to which Indemnitee is entitled. Without limiting the generality of the foregoing, if any Claim is brought against Indemnitee in Indemnitee's capacity as a director of the Company and in one or more capacities other than as a director of the Company, the Company shall indemnify Indemnitee for the portion of the Losses incurred by Indemnitee in connection with such Claim that is attributable to Indemnitee's service as a director of the Company.
Section 2.5 Indemnification for Serving as a Witness. The Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Claim to which Indemnitee is not a named party but in which Indemnitee's appearance as a witness, deponent, interviewee, or other participant is compelled or requested by reason of Indemnitee's Corporate Status, including any Claim in which Indemnitee is called to testify or to produce documents or other information in Indemnitee's capacity as a current or former director of the Company or a current or former director, officer, employee, agent, or fiduciary of an Enterprise. This right of indemnification shall be in addition to, and not in limitation of, any other right of indemnification set forth in this Agreement.
ARTICLE III — ADVANCEMENT OF EXPENSES
Section 3.1 Right to Advancement. The Company shall advance all Expenses incurred by Indemnitee in connection with any Claim within thirty (30) days after receipt by the Company of a written statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after Final Disposition of such Claim. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded by the Undertaking described in Section 3.2 (if not previously delivered). Advances shall be unsecured and interest-free. Indemnitee's right to advancement of Expenses shall include the right to advancement of Expenses incurred by Indemnitee in connection with any Claim relating to any period during which Indemnitee served as a director of the Company, regardless of when such Claim is asserted.
Section 3.2 Undertaking to Repay. In connection with any request for advancement of Expenses under this Article III, Indemnitee shall execute and deliver to the Company an undertaking substantially in the form attached hereto as Exhibit A (the "Undertaking"), pursuant to which Indemnitee shall agree to repay any amounts advanced by the Company to the extent that it is ultimately determined by Final Disposition that Indemnitee is not entitled to indemnification under this Agreement. The Undertaking shall be accepted by the Company without reference to Indemnitee's financial ability to make repayment and without any requirement for the posting of a bond, surety, or other security by Indemnitee. No other form of undertaking shall be required of Indemnitee, and the Company hereby acknowledges and agrees that the Undertaking provided for in this Section 3.2 shall be sufficient for all purposes of Section 145(e) of the DGCL.
Section 3.3 Documentation. In connection with any request for advancement of Expenses, Indemnitee shall submit to the Company reasonably detailed documentation substantiating the Expenses for which advancement is sought. Such documentation may include, but shall not be limited to, copies of invoices from counsel, expense receipts, fee statements, and other evidence of Expenses incurred; provided, however, that Indemnitee may redact from any such documentation any information that is protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection, and such redaction shall not affect Indemnitee's entitlement to advancement of Expenses hereunder. The Company shall not delay or condition the advancement of Expenses pending the Company's review or verification of Indemnitee's documentation beyond the thirty (30) day period set forth in Section 3.1.
ARTICLE IV — PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
Section 4.1 Request for Indemnification. Indemnitee shall submit a written request for indemnification to the General Counsel of the Company (currently Sandra Mikkelsen), or if no General Counsel is then serving, to the Chief Executive Officer of the Company (currently Raj Anand), specifying the Claim for which indemnification is sought, the basis upon which indemnification is claimed, and the aggregate amount of Losses incurred or expected to be incurred by Indemnitee in connection with such Claim. Such request shall be accompanied by such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine Indemnitee's entitlement to indemnification. The Company shall make a determination regarding Indemnitee's entitlement to indemnification within sixty (60) days of the Company's receipt of such request. The failure of Indemnitee to provide the Company with all requested documentation shall not affect Indemnitee's right to indemnification under this Agreement or relieve the Company of its obligations hereunder, except to the extent that the Company's ability to make the determination required by Section 4.2 is materially and adversely affected by such failure.
Section 4.2 Determination of Entitlement. The determination of Indemnitee's entitlement to indemnification under this Agreement (to the extent such determination is required by the DGCL) shall be made in the specific case by one of the following methods, as determined by the Board:
(a) By a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
(b) By a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
(c) By Independent Counsel, in a written opinion delivered to the Company and to Indemnitee; or
(d) By the stockholders of the Company.
Notwithstanding the foregoing, if a Change of Control has occurred and Indemnitee so requests in writing, the determination of Indemnitee's entitlement to indemnification shall be made by Independent Counsel selected by Indemnitee and approved by the Company, such approval not to be unreasonably withheld, conditioned, or delayed. In the event that the Company and Indemnitee are unable to agree upon the selection of Independent Counsel within twenty (20) days following Indemnitee's request, the selection of Independent Counsel shall be made by the Court of Chancery of the State of Delaware upon application by Indemnitee.
Section 4.3 Selection of Independent Counsel. In the event that a determination of Indemnitee's entitlement to indemnification is to be made by Independent Counsel pursuant to Section 4.2, the Company shall select such Independent Counsel and shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. Indemnitee may, within ten (10) business days after receipt of such notice, deliver to the Company a written objection to such selection, setting forth with specificity the reasons why the selected counsel does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(m). If Indemnitee so objects, the Company shall select a replacement Independent Counsel and give notice thereof to Indemnitee, and Indemnitee may, within five (5) business days after receipt of such further notice, object to the replacement selection in the same manner as described above. If Indemnitee objects to the replacement selection, the determination of Independent Counsel shall be made by the Court of Chancery of the State of Delaware upon application by Indemnitee or the Company. Notwithstanding the foregoing, following a Change of Control, Indemnitee shall select the Independent Counsel, subject to the Company's reasonable approval as provided in Section 4.2. In all cases, the Company shall pay the reasonable fees and expenses of Independent Counsel in connection with its services under this Article IV and shall fully indemnify such counsel against any costs, expenses, and liabilities arising out of or relating to such engagement.
Section 4.4 Presumptions Favorable to Indemnitee. In making any determination of Indemnitee's entitlement to indemnification under this Agreement, Indemnitee shall be presumed to be entitled to indemnification, and the Company (or, in the case of determination by Independent Counsel, Independent Counsel) shall have the burden of proof to overcome such presumption by clear and convincing evidence. Neither the failure of the Company (including the Board, Independent Counsel, or the stockholders) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including the Board, Independent Counsel, or the stockholders) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.
Section 4.5 Failure to Make Determination. If the Company fails to make a determination of Indemnitee's entitlement to indemnification within the sixty (60) day period specified in Section 4.1, such failure shall constitute a determination by the Company that Indemnitee is entitled to indemnification with respect to the Claim for which indemnification was sought, and the Company shall be deemed to have approved such indemnification. In such event, the Company shall promptly pay all Losses as to which indemnification was requested, and Indemnitee shall not be required to take any further action to establish entitlement to such indemnification.
ARTICLE V — REMEDIES OF INDEMNITEE
Section 5.1 Right to Adjudication. In the event that (a) a determination is made pursuant to Article IV that Indemnitee is not entitled to indemnification under this Agreement, in whole or in part, (b) advancement of Expenses is not timely made within thirty (30) days of receipt by the Company of a request for advancement in accordance with Article III, (c) no determination of Indemnitee's entitlement to indemnification shall have been made within the sixty (60) day period specified in Section 4.1 and payment of indemnification has not been made, (d) payment of indemnification is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (e) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any action, suit, proceeding, or investigation designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee under this Agreement, Indemnitee shall have the right to commence an action in the Court of Chancery of the State of Delaware, or in any other court of competent jurisdiction, to recover the unpaid amount of any indemnification or advancement of Expenses due and owing under this Agreement. It shall be a defense to any such action brought by Indemnitee (other than an action brought to enforce a claim for advancement of Expenses) that Indemnitee has not met the applicable standard of conduct set forth in the DGCL for indemnification, but the Company shall bear the burden of proving such defense by clear and convincing evidence. The Company shall not oppose Indemnitee's right to seek any such adjudication, and the Company hereby consents to the jurisdiction of the courts specified in this Section 5.1 for purposes of any such proceeding.
Section 5.2 Burden of Proof in Adjudication. In any judicial proceeding brought pursuant to Section 5.1, the Company shall bear the burden of proving, by clear and convincing evidence, that Indemnitee is not entitled to indemnification or advancement of Expenses under this Agreement, and the Company shall not be permitted to assert in any such proceeding the defense that a prior determination was made by the Board, Independent Counsel, or the Company's stockholders that Indemnitee is not entitled to indemnification, or that Indemnitee has not met any particular standard of conduct. The Court of Chancery of the State of Delaware, or such other court in which a proceeding is brought, is hereby authorized and requested to make an independent determination of Indemnitee's entitlement to indemnification, without giving any deference to any prior determination made by the Company.
Section 5.3 Expenses of Enforcement. In the event that Indemnitee is successful, in whole or in part, in any proceeding brought pursuant to Section 5.1 or otherwise to enforce Indemnitee's rights under this Agreement, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such enforcement proceeding, including attorneys' fees, court costs, expert fees, and all other costs of prosecution and appeal. For purposes of this Section 5.3, Indemnitee shall be deemed to be "successful" if Indemnitee obtains any relief, whether by judgment, order, settlement, or otherwise, that increases the amount of indemnification or advancement to which Indemnitee is entitled under any prior determination.
ARTICLE VI — DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
Section 6.1 Obligation to Maintain D&O Insurance. The Company shall obtain and maintain, at its sole cost and expense, a policy or policies of directors' and officers' liability insurance (the "D&O Policy") covering Indemnitee, with coverage terms, conditions, retentions, and limits at least as favorable as the D&O Policy in effect as of the date of this Agreement or, if no such policy is in effect as of the date hereof, a D&O Policy with commercially reasonable coverage and aggregate limits of not less than Ten Million Dollars ($10,000,000). The D&O Policy shall include coverage for the Company's indemnification obligations under this Agreement, and shall name Indemnitee as an insured thereunder. The Company shall maintain such D&O Policy (or a replacement policy or policies with substantially equivalent coverage) throughout the entire period during which Indemnitee serves as a director of the Company and shall maintain a tail or extended reporting period policy with substantially equivalent coverage for a period of not less than six (6) years following the date on which Indemnitee ceases to serve as a director of the Company. The Company shall use commercially reasonable efforts to ensure that the D&O Policy provides coverage for Claims arising out of acts, omissions, or events occurring during the period of Indemnitee's service, regardless of when such Claims are first made.
Section 6.2 Notice of Reduction or Cancellation. The Company shall provide Indemnitee with written notice at least thirty (30) days prior to (a) any material reduction in coverage under the D&O Policy, (b) any material increase in the premiums for such coverage, or (c) any cancellation or non-renewal of the D&O Policy. For purposes of this Section 6.2, a "material reduction in coverage" shall include, without limitation, any reduction in policy limits, any increase in the self-insured retention or deductible applicable to directors, any addition of exclusions that would adversely affect the scope of coverage available to Indemnitee, or any change in the definition of "insured" that would exclude Indemnitee from coverage.
Section 6.3 No Limitation by Insurance. The Company's obligations to indemnify and to advance Expenses to Indemnitee under this Agreement shall not be diminished, reduced, or otherwise affected by (a) the existence or absence of any D&O Policy, (b) the availability or unavailability of any insurance proceeds thereunder, (c) any coverage limitations or exclusions contained in any D&O Policy, or (d) any denial of coverage or reservation of rights by any insurer under any D&O Policy. In the event that the Company's D&O insurer denies coverage for any Claim or Losses for which Indemnitee is entitled to indemnification under this Agreement, the Company's obligations under this Agreement shall remain fully in effect and enforceable, and the Company shall promptly pay all amounts due hereunder without regard to such denial of coverage.
Section 6.4 Subrogation. In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against any insurer, and Indemnitee shall execute all papers required and take all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. Indemnitee shall do nothing after the date hereof to prejudice the Company's rights of subrogation.
ARTICLE VII — CERTAIN ADDITIONAL PROVISIONS
Section 7.1 No Duplication of Payments. The Company shall not be liable under this Agreement to pay any amounts otherwise indemnifiable hereunder to the extent that Indemnitee has already received payment for such amounts from any other source, including insurance proceeds under any D&O Policy, indemnification payments under the Company's Certificate of Incorporation or Bylaws, or payments under any other indemnification arrangement; provided, however, that if the total amount received by Indemnitee from all such other sources is less than the full amount of the Losses to which Indemnitee is entitled to indemnification under this Agreement, the Company shall pay the amount of the deficiency. Nothing in this Section 7.1 shall be construed to reduce or limit Indemnitee's right to receive the full amount of indemnification to which Indemnitee is entitled under this Agreement.
Section 7.2 Contribution. If the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason other than an exclusion based on Indemnitee's failure to meet the applicable standard of conduct set forth in Section 2.1 or Section 2.2 of this Agreement, then, in respect of any Claim in which the Company is jointly liable with Indemnitee (or would be if joined in such Claim), the Company shall contribute to the amount of Losses actually and reasonably incurred and paid or payable by Indemnitee in such proportion as is appropriate to reflect (a) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other hand, from the transaction or events giving rise to such Claim, and (b) the relative fault of the Company, on the one hand, and Indemnitee, on the other hand, in connection with such transaction or events, as well as any other relevant equitable considerations. The relative fault of the Company and Indemnitee shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent the circumstances resulting in such Losses. The Company and Indemnitee agree that it would not be just and equitable if contribution pursuant to this Section 7.2 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 7.2.
Section 7.3 Rights Not Exclusive. The indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under the Company's Certificate of Incorporation, the Company's Bylaws, any other agreement, any vote of stockholders, any resolution of directors, the DGCL, or otherwise, both as to action in Indemnitee's official capacity as a director of the Company and as to action in any other capacity while serving as a director of the Company. Without limiting the foregoing, the Company specifically acknowledges that Indemnitee's rights to indemnification and advancement under the Company's Amended and Restated Certificate of Incorporation (as the same may be further amended, restated, supplemented, or otherwise modified in connection with the Series D Preferred Stock issuance or otherwise) and the Company's Bylaws shall supplement the rights provided under this Agreement, and neither this Agreement nor any right hereunder shall be deemed to limit, diminish, or supersede any right to indemnification or advancement that Indemnitee may have under such other sources. To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under this Agreement, the Certificate of Incorporation, or the Bylaws, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
Section 7.4 Indemnification for Pinnacle-Related Activities. Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement shall be construed to obligate the Company to indemnify Indemnitee for any actions taken, or omissions made, solely in Indemnitee's capacity as a partner, officer, employee, or agent of Pinnacle Capital Management LLC or Pinnacle Venture Fund II LP, or any of their respective Affiliates, except to the extent that such actions or omissions also constitute service in Indemnitee's capacity as a director of the Company or as a director, officer, employee, agent, or fiduciary of an Enterprise. For the avoidance of doubt, the Company acknowledges that Indemnitee's service on the Board inherently involves activities and communications that may relate to Pinnacle's investment in the Company, and this Section 7.4 shall not be construed to exclude from indemnification any actions or omissions that fall within the scope of Indemnitee's service as a director of the Company.
Section 7.5 No Personal Liability of Directors, Officers, or Stockholders. No director, officer, employee, agent, or stockholder of the Company shall have any personal liability to Indemnitee for any breach by the Company of its obligations under this Agreement. Indemnitee's sole remedy for any breach of this Agreement by the Company shall be against the Company itself, and Indemnitee shall not have any right of recovery against any director, officer, employee, agent, or stockholder of the Company.
Section 7.6 Settlements. The Company shall not, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld, conditioned, or delayed), effect any settlement of any pending or threatened Claim in a manner that would (a) impose any monetary liability, penalty, fine, or obligation on Indemnitee, (b) impose any restriction or limitation on the conduct, activities, or business of Indemnitee, (c) require any admission of fault, culpability, wrongdoing, or violation of law by Indemnitee, or (d) adversely affect Indemnitee's reputation or standing in the business community. The Company shall promptly notify Indemnitee of any proposed settlement of any Claim that could affect Indemnitee's rights or obligations hereunder.
Section 7.7 Notice of Claims. Indemnitee shall give the Company prompt written notice upon becoming aware of any Claim for which indemnification or advancement of Expenses may be sought under this Agreement; provided, however, that the failure of Indemnitee to give such notice shall not relieve the Company of any of its obligations under this Agreement, except to the extent that the Company demonstrates that it has been materially and actually prejudiced by such failure to give timely notice. Notice shall be directed to the General Counsel of the Company (or, if no General Counsel is then serving, to the Chief Executive Officer of the Company) at the address set forth in Section 10.6. Such notice shall include a description of the nature of the Claim, the parties involved, and the factual basis upon which Indemnitee believes indemnification or advancement of Expenses is available under this Agreement.
Section 7.8 Defense of Claims. With respect to any Claim for which indemnification is sought under this Agreement:
(a) The Company shall be entitled to assume the defense of any such Claim, with counsel selected by the Company and reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of the Company's election to do so. After delivery of such notice, the Company shall not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Claim by separate counsel retained by Indemnitee, except as provided in Section 7.8(b) below. Indemnitee shall have the right to employ Indemnitee's own counsel in connection with any such Claim, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been previously authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (iii) the Company shall not, in fact, have employed counsel to assume the defense of such Claim within a reasonable period of time following receipt of notice of such Claim, in each of which cases the fees and expenses of Indemnitee's counsel shall be Expenses for purposes of this Agreement.
(b) Notwithstanding the provisions of Section 7.8(a), Indemnitee shall have the right to employ separate counsel (and the Company shall pay the reasonable fees and expenses of such separate counsel as Expenses under this Agreement) if (i) the Company's counsel has a conflict of interest that would, under the applicable standards of professional conduct, preclude such counsel from representing both the Company and Indemnitee, (ii) Indemnitee reasonably concludes, based upon advice of counsel, that there may be legal defenses available to Indemnitee that are different from, additional to, or inconsistent with those available to the Company, or (iii) following a Change of Control, Indemnitee requests separate representation. In any such case, the costs and expenses of separate counsel retained by Indemnitee shall constitute Expenses subject to indemnification and advancement under this Agreement.
(c) The Company shall not be entitled to assume the defense of any Claim brought by the Company or any of its Affiliates, or any Claim in which the Company is a complainant or plaintiff. Indemnitee shall have the right to retain counsel of Indemnitee's choosing in connection with any such Claim, and the reasonable fees and expenses of such counsel shall be Expenses under this Agreement.
ARTICLE VIII — EXCEPTIONS TO INDEMNIFICATION
Section 8.1 Actions Initiated by Indemnitee. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to indemnify or advance Expenses to Indemnitee with respect to any Claim initiated or brought voluntarily by Indemnitee against the Company or any of its directors, officers, or employees, unless (a) the Board authorized the initiation of such Claim prior to its commencement, (b) the Company provides such indemnification, in its sole and absolute discretion, pursuant to the powers vested in the Company under applicable law, or (c) the Claim is brought by Indemnitee to enforce Indemnitee's rights under this Agreement, in which case Section 5.3 shall govern the indemnification of Expenses incurred by Indemnitee in connection therewith. For purposes of this Section 8.1, a Claim shall not be deemed to have been "initiated" by Indemnitee if such Claim was commenced as a counterclaim or cross-claim by Indemnitee in response to a Claim brought against Indemnitee.
Section 8.2 Section 16(b) Liability. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to make any payment under this Agreement in respect of any Losses arising from the recovery of profits by Indemnitee pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of any applicable state or foreign statute or regulation. For the avoidance of doubt, this exception does not extend to Expenses incurred by Indemnitee in defending against any claim brought under Section 16(b), which Expenses shall remain subject to advancement and indemnification in accordance with the other provisions of this Agreement, to the extent Indemnitee is otherwise entitled thereto.
Section 8.3 Prohibited Indemnification. Notwithstanding any other provision of this Agreement, no indemnification or advancement of Expenses shall be made under this Agreement to the extent that such indemnification or advancement would be prohibited by applicable law, including the DGCL, as in effect at the time of such indemnification or advancement. In the event that any provision of this Agreement would be held to authorize indemnification or advancement of Expenses not permitted under the DGCL or other applicable law, such provision shall be deemed modified to the minimum extent necessary to render it consistent with applicable law, and, as so modified, such provision and the remainder of this Agreement shall remain in full force and effect. The Company shall use its best efforts to interpret and apply this Agreement in a manner that maximizes the indemnification and advancement of Expenses available to Indemnitee under applicable law.
ARTICLE IX — DURATION AND SCOPE
Section 9.1 Duration. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect during the entire period that Indemnitee serves as a director of the Company and thereafter for so long as Indemnitee may be subject to any possible Claim arising from, related to, or by reason of Indemnitee's Corporate Status, regardless of whether this Agreement has been terminated by the Company or by operation of law. Without limiting the generality of the foregoing, the Company's obligations under this Agreement shall survive for the longer of (a) ten (10) years after the date on which Indemnitee ceases to serve as a director of the Company, or (b) the date of the final resolution (including the expiration of all applicable statutes of limitations and the exhaustion of all rights of appeal) of any pending or threatened Claim that is the subject of a request for indemnification or advancement of Expenses under this Agreement. This Agreement shall not be terminated, and the Company's obligations hereunder shall not be affected, by Indemnitee's resignation or removal from the Board, or by any change in Indemnitee's Corporate Status.
Section 9.2 Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor (by purchase, merger, consolidation, reorganization, or otherwise) to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee's heirs, executors, administrators, and legal representatives. The Company shall not consummate any merger, consolidation, reorganization, sale of all or substantially all assets, or other similar transaction unless and until the surviving, resulting, or acquiring entity expressly assumes and agrees, by written instrument in form and substance reasonably satisfactory to Indemnitee, to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such transaction had taken place. The Company's failure to obtain such assumption and agreement prior to the consummation of any such transaction shall constitute a breach of this Agreement and shall entitle Indemnitee to all remedies available hereunder.
ARTICLE X — GENERAL PROVISIONS
Section 10.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.2 Consent to Jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally (a) consents to the exclusive jurisdiction of the courts of the State of Delaware, including the Court of Chancery of the State of Delaware, and the United States District Court for the District of Delaware, for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of any such action, suit, or proceeding shall be heard and determined exclusively in such courts, (c) waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, including any objection based on the doctrine of forum non conveniens, and (d) agrees not to commence any action, suit, or proceeding arising out of or relating to this Agreement in any court other than those specified above. Each of the parties hereto consents to service of process by any means permitted by applicable law.
Section 10.3 Entire Agreement. This Agreement, together with the Company's Certificate of Incorporation and Bylaws (as each may be amended, restated, supplemented, or otherwise modified from time to time), constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, warranties, commitments, agreements, and understandings (whether oral or written) between the parties with respect to indemnification of Indemnitee in connection with Indemnitee's service as a director of the Company. No provision of this Agreement shall be interpreted as reducing or limiting the scope of any right of Indemnitee to indemnification or advancement of Expenses under the Company's Certificate of Incorporation or Bylaws.
Section 10.4 Amendment and Waiver. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument duly executed by both the Company and Indemnitee. No waiver by either party of any breach or default hereunder shall operate as a waiver of any subsequent breach or default, whether of the same or a different provision, and no single or partial exercise of any right, power, or remedy hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that either party may otherwise have at law or in equity.
Section 10.5 Severability. If any provision of this Agreement (or any portion thereof) shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, (a) such provision shall be modified by such court to the minimum extent necessary to make it valid, legal, and enforceable, and, as so modified, such provision shall be enforced as modified, and (b) the validity, legality, and enforceability of the remaining provisions of this Agreement (and each portion thereof) shall not in any way be affected or impaired thereby. The parties hereto agree that they would have entered into this Agreement regardless of any such invalidity, illegality, or unenforceability.
Section 10.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and received (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) three (3) business days after deposit in the United States mail, postage prepaid, by certified or registered mail, with return receipt requested, or (d) one (1) business day after deposit with a nationally recognized overnight courier service, specifying next-day delivery, in each case addressed to the party to be notified as follows (or at such other address as may be provided by such party by notice given in accordance with this Section 10.6):
If to the Company:
Verdana Software, Inc.
Attn: General Counsel (Sandra Mikkelsen)
1175 NW Couch Street, Suite 800 Portland, Oregon 97209
With a copy (which shall not constitute notice) to:
Langford Price & Associates LLP
Attn: Jonathan Hale
1000 SW Broadway, Suite 1600 Portland, Oregon 97205
If to Indemnitee:
Marcus Trejo c/o Pinnacle Capital Management LLC 2400 Sand Hill Road, Suite 310 Menlo Park, California 94025
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP
Attn: Harrison Wexford
101 Montgomery Street, Suite 3500 San Francisco, California 94104
Section 10.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (.pdf), or other electronic means (including via any electronic signature platform) shall be as effective as delivery of a manually executed counterpart, and each such counterpart shall be deemed an original for all purposes.
Section 10.8 Headings. The headings and captions contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. All references in this Agreement to articles, sections, subsections, and exhibits are references to articles, sections, subsections, and exhibits of this Agreement unless otherwise specified.
Section 10.9 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement, and in the event of an ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision hereof. As used in this Agreement, the term "including" shall mean "including, without limitation," and such term shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. References to any statute or statutory provision shall include any amendment, supplement, modification, re-enactment, or successor provision thereof. Words in the singular shall include the plural, and vice versa, and words of one gender shall include each other gender, in each case as the context requires or permits. The words "herein," "hereof," "hereunder," "hereby," and "herewith" refer to this Agreement as a whole.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the date first written above.
THE COMPANY:
VERDANA SOFTWARE, INC.
By: ________
Name: Raj Anand
Title: Chief Executive Officer & Co-Founder
Date: ________
INDEMNITEE:
________________________________________
Name: Marcus Trejo
Date: ________
EXHIBIT A
FORM OF UNDERTAKING
(to be executed in connection with requests for advancement of Expenses under Article III of the Indemnification Agreement)
Verdana Software, Inc.
Attn: General Counsel (Sandra Mikkelsen)
1175 NW Couch Street, Suite 800 Portland, Oregon 97209
Re: Undertaking Pursuant to Indemnification Agreement Dated June 25, 2022
Dear Ms. Mikkelsen:
Reference is made to that certain Indemnification Agreement, dated as of June 25, 2022 (the "Indemnification Agreement"), by and between Verdana Software, Inc., a Delaware corporation (the "Company"), and the undersigned ("Indemnitee"). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indemnification Agreement.
Indemnitee hereby requests advancement of Expenses pursuant to Article III of the Indemnification Agreement in connection with the following Claim:
Description of Claim: ________
Court/Forum (if applicable): ________
Case/Matter Number (if applicable): ________
Amount of Expenses for which advancement is sought: $________
Period covered by this request: ________
In accordance with Section 3.2 of the Indemnification Agreement and Section 145(e) of the Delaware General

CONFIDENTIAL — DRAFT — SUBJECT TO REVISION Calderwood & Harkness LLP — Matter No. 1002-00004

INDEMNIFICATION AGREEMENT

MARCUS TREJO

INDEMNIFICATION AGREEMENT

RECITALS

WHEREAS:

THE COMPANY:

VERDANA SOFTWARE, INC.

INDEMNITEE:

EXHIBIT A

FORM OF UNDERTAKING

Record

Parties

Dates

Amounts