INDEMNITY AGREEMENT
Exhibit 10.1
This Indemnity Agreement, dated as of , 20___, is made by and between Reply!
Inc., a Delaware corporation (the “Company”), and (the
“Indemnitee”).
RECITALS
A. The Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees and other agents, the cost of such
insurance and the general reductions in the coverage of such insurance;
B. The Company and Indemnitee recognize the substantial increase in corporate litigation in
general, subjecting directors, officers, employees and other agents to expensive litigation risks
at the same time as the availability and coverage of liability insurance has been severely limited;
C. The Company desires to attract and retain the services of talented and experienced
individuals, such as Indemnitee, to serve as directors, officers, employees and agents of the
Company and its subsidiaries and wishes to indemnify its directors, officers, employees and other
agents to the maximum extent permitted by law;
D. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized (“Section 145”), empowers the Company to indemnify its directors, officers,
employees and agents by agreement and to indemnify persons who serve, at the request of the
Company, as the directors, officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Section 145 is not exclusive; and
E. In order to induce Indemnitee to serve or continue to serve as a director, officer,
employee or agent of the Company and/or one or more subsidiaries of the Company free from undue
concern for claims for damages arising out of or related to such services to the Company and/or one
or more subsidiaries of the Company, the Company has determined and agreed to enter into this
Agreement with Indemnitee.
AGREEMENT
NOW, THEREFORE, the Indemnitee and the Company hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) “Agent” means any person who is or was a director, officer, employee or other
agent of the Company or a subsidiary of the Company; or is or was serving at the request of, for
the convenience of, or to represent the interests of the Company or a subsidiary of the Company as
a director, officer, employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise; or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the Company or a
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subsidiary of the Company, or was a director, officer, employee or agent of another enterprise
at the request of, for the convenience of, or to represent the interests of such predecessor
corporation.
(b) “Board” means the Board of Directors of the Company.
(c) “Expenses” shall include all out-of-pocket costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and related disbursements), actually and
reasonably incurred by the Indemnitee in connection with either the investigation, defense or
appeal of a Proceeding or establishing or enforcing a right to indemnification under this
Agreement, or Section 145 or otherwise; provided, however, that “Expenses” shall not include any
judgments, fines, ERISA excise taxes or penalties, or amounts paid in settlement of a Proceeding.
(d) “Independent Counsel” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of corporation law and neither currently is, nor
in the past five years has been, retained to represent: (i) the Company or the Indemnitee in any
matter material to either such party or (ii) any other party to or witness in the proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement.
(e) “Proceeding” means any threatened, pending, or completed action, suit or other
proceeding, whether civil, criminal, administrative, or investigative.
(f) “Subsidiary” means any corporation of which more than 50% of the outstanding
voting securities is owned directly or indirectly by the Company, by the Company and one or more
other subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an
Agent of the Company, at its will (or under separate agreement, if such agreement exists), in the
capacity the Indemnitee currently serves as an Agent of the Company, so long as the Indemnitee is
duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws
of the Company or any subsidiary of the Company or until such time as the Indemnitee tenders his or
her resignation in writing; provided, however, that nothing contained in this Agreement is intended
to create any right to continued employment by the Indemnitee.
3. Liability Insurance.
(a) Maintenance of D&O Insurance. The Company hereby covenants and agrees that, so
long as the Indemnitee shall continue to serve as an Agent of the Company and thereafter so long as
the Indemnitee shall be subject to any possible Proceeding by reason of the fact that the
Indemnitee was an Agent of the Company, the Company, subject to Section 3(c), shall promptly obtain
and maintain in full force and effect directors’ and officers’ liability
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insurance (“D&O Insurance”) in reasonable amounts from established and reputable
insurers, as more fully described below.
(b) Rights and Benefits. In all policies of D&O Insurance, the Indemnitee shall
qualify as an insured in such a manner as to provide the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company’s independent directors (as defined by
the insurer) if the Indemnitee is such an independent director; of the Company’s non-independent
directors if the Indemnitee is not an independent director; of the Company’s officers if the
Indemnitee is an officer of the Company; or of the Company’s key employees, if the Indemnitee is
not a director or officer but is a key employee.
(c) Limitation on Required Maintenance of D&O Insurance. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company
determines in good faith that: such insurance is not reasonably available; the premium costs for
such insurance are disproportionate to the amount of coverage provided; the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit; the Indemnitee is
covered by similar insurance maintained by a subsidiary of the Company; the Company is to be
acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or
omissions by the Indemnitee; or the Company is to be acquired and D&O Insurance will be maintained
by the acquirer that covers pre-closing acts and omissions by the Indemnitee.
4. Mandatory Indemnification. Subject to the terms of this Agreement:
(a) Third Party Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in the right of the
Company) by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason
of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify
the Indemnitee against all Expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement)
actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of such Proceeding, provided the Indemnitee acted in good faith and in a
manner the 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
his or her conduct was unlawful.
(b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company by reason of the
fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not
done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all
Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of such Proceeding, provided the Indemnitee acted in good faith and
in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification under this Section 4(b) shall be made in respect to any
claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to
the Company by a court of competent jurisdiction unless and only to the extent that the Delaware
Court of Chancery or the court in which such Proceeding was brought shall
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determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such
amounts which the Delaware Court of Chancery or such other court shall deem proper.
(c) Actions where Indemnitee is Deceased. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any Proceeding by reason of the fact that the
Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the
Indemnitee in any such capacity, and if, prior to, during the pendency of or after completion of
such Proceeding the Indemnitee is deceased, the Company shall indemnify the Indemnitee’s heirs,
executors and administrators against all Expenses and liabilities of any type whatsoever to the
extent the Indemnitee would have been entitled to indemnification pursuant to this Agreement were
the Indemnitee still alive.
(d) Certain Terminations. The termination of any Proceeding or of any claim, issue,
or matter therein by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself create a presumption that the Indemnitee did not act in good faith and in a
manner which the 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 the Indemnitee had
reasonable cause to believe that the Indemnitee’s conduct was unlawful.
(e) Limitations. Notwithstanding the foregoing, the Company shall not be obligated to
indemnify the Indemnitee for Expenses or liabilities of any type whatsoever for which payment is
actually made to or on behalf of the Indemnitee under an insurance policy, or under a valid and
enforceable indemnity clause, by-law or agreement.
5. Indemnification for Expenses in a Proceeding in Which the Indemnitee is Wholly or
Partly Successful.
(a) Successful Defense. Notwithstanding any other provisions of this Agreement, to
the extent the Indemnitee has been successful, on the merits or otherwise, in defense of any
Proceeding (including, without limitation, an action by or in the right of the Company) in which
the Indemnitee was a party by reason of the fact that the Indemnitee is or was an Agent of the
Company at any time, the Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by or on behalf of the Indemnitee in connection with the investigation, defense
or appeal of such Proceeding.
(b) Partially Successful Defense. Notwithstanding any other provisions of this
Agreement, to the extent that the Indemnitee is a party to or a participant in any Proceeding
(including, without limitation, an action by or in the right of the Company) in which the
Indemnitee was a party by reason of the fact that the Indemnitee is or was an Agent of the Company
at any time and is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify the Indemnitee against
all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection with
each successfully resolved claim, issue or matter.
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(c) Dismissal. For purposes of this section and without limitation, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.
6. Mandatory Advancement of Expenses. Subject to the terms of this Agreement and
following notice pursuant to Section 7(a) below, the Company shall advance all Expenses reasonably
incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of
any Proceeding to which the Indemnitee is a party or is threatened to be made a party by reason of
the fact that the Indemnitee is or was an Agent of the Company (unless there has been a final
determination that the Indemnitee is not entitled to indemnification for such Expenses) upon
receipt of (i) an undertaking by or on behalf of the Indemnitee to repay the amount advanced in the
event that it shall ultimately be determined that the Indemnitee is not entitled to indemnification
by the Company and (ii) satisfactory documentation supporting such Expenses. Such advances are
intended to be an obligation of the Company to the Indemnitee hereunder and shall in no event be
deemed to be a personal loan. The advances to be made hereunder shall be paid by the Company to
the Indemnitee within twenty (20) days following delivery of a written request therefor by the
Indemnitee to the Company.
7. Notice and Other Indemnification Procedures.
(a) Notice by Indemnitee. Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any Proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company in writing of the commencement or threat of commencement
thereof.
(b) Insurance. If the Company receives notice pursuant to Section 7(a) hereof of the
commencement of a Proceeding that may be covered under D&O Insurance then in effect, the Company
shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with
the procedures set forth in the respective policies.
(c) Defense. In the event the Company shall be obligated to pay the Expenses of any
Proceeding against the Indemnitee, the Company shall be entitled to assume the defense of such
Proceeding, with counsel selected by the Company and approved by the Indemnitee (which approval
shall not be unreasonably withheld), upon the delivery to the Indemnitee of written notice of its
election so to do. After delivery of such notice, and the retention of such counsel by the
Company, the Company will not be liable to the Indemnitee under this Agreement for any fees of
counsel subsequently incurred by the Indemnitee with respect to the same Proceeding, provided that
(i) the Indemnitee shall have the right to employ his or her own counsel in any such Proceeding at
the Indemnitee’s expense; and (ii) the Indemnitee shall have the right to employ his or her own
counsel in any such Proceeding at the Company’s expense if (A) the Company has authorized the
employment of counsel by the Indemnitee at the expense of the Company, (B) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed
counsel to assume the defense of such Proceeding.
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8. Right to Indemnification.
(a) Right to Indemnification. In the event that Section 5(a) is inapplicable, the
Company shall indemnify the Indemnitee pursuant to this Agreement unless, and except to the extent
that, it shall have been determined by one of the methods listed in Section 8(b) that the
Indemnitee has not met the applicable standard of conduct required to entitle the Indemnitee to
such indemnification.
(b) Determination of Right to Indemnification. A determination of the Indemnitee’s
right to indemnification hereunder shall be made at the election of the Board by (i) a majority
vote of directors who are not parties to the Proceeding for which indemnification is being sought,
even though less than a quorum, or by a committee consisting of directors who are not parties to
the Proceeding for which indemnification is being sought, who, even though less than a quorum, have
been designated by a majority vote of the disinterested directors, or (ii) if there are no such
disinterested directors or if the disinterested directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to the Indemnitee.
(c) Submission for Decision. As soon as practicable, and in no event later than
thirty (30) days after the Indemnitee’s written request for indemnification, the Board shall select
the method for determining the Indemnitee’s right to indemnification. The Indemnitee shall
cooperate with the person or persons or entity making such determination with respect to the
Indemnitee’s right to indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the Indemnitee and reasonably
necessary to such determination. Any Independent Counsel, member of the Board or stockholder of
the Company shall act reasonably and in good faith in making a determination regarding the
Indemnitee’s entitlement to indemnification under this Agreement.
(d) Application to Court. If (i) the claim for indemnification or advancement of
Expenses is denied, in whole or in part, (ii) no disposition of such claim is made by the Company
within ninety (90) days after the request therefor, (iii) the advancement of Expenses is not timely
made pursuant to Section 6 of this Agreement or (iv) payment of indemnification is not made
pursuant to Section 5 of this Agreement, the Indemnitee shall have the right to apply to the
Delaware Court of Chancery, the court in which the Proceeding is or was pending or any other court
of competent jurisdiction, for the purpose of enforcing the Indemnitee’s right to indemnification
(including the advancement of Expenses) pursuant to this Agreement.
(e) Expenses Related to the Enforcement or Interpretation of this Agreement. The
Company shall indemnify the Indemnitee against all reasonable Expenses incurred by the Indemnitee
in connection with any hearing or proceeding under this Section 8 involving the Indemnitee and
against all reasonable Expenses incurred by the Indemnitee in connection with any other proceeding
between the Company and the Indemnitee involving the interpretation or enforcement of the rights of
the Indemnitee under this Agreement, unless a court of competent jurisdiction finds that each of
the claims and/or defenses of the Indemnitee in any such proceeding was frivolous or made in bad
faith.
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9. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to the
Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, with a reasonable allocation where appropriate, unless (i) such
indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the
Board, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to
the powers vested in the Company under the General Corporation Law of Delaware or (iv) the
Proceeding is brought to establish or enforce a right to indemnification under this Agreement or
any other statute or law or otherwise as required under Section 145 in advance of a final
determination;
(b) Lack of Good Faith. To indemnify the Indemnitee for any Expenses incurred by the
Indemnitee with respect to any Proceeding instituted by the Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such Proceeding was not made in good faith or was frivolous;
(c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a Proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld;
(d) Claims Under Section 16(b). To indemnify the Indemnitee for Expenses and the
payment of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of
securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of
1934, as amended, or similar provisions of state statutory law or common law; or
(e) Payments Contrary to Law. To indemnify or advance Expenses to the Indemnitee for
which payment is prohibited by applicable law.
10. Non-Exclusivity. The provisions for indemnification and advancement of Expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to action in the Indemnitee’s official capacity and as to action in another capacity while
occupying the Indemnitee’s position as an Agent of the Company, and the Indemnitee’s rights
hereunder shall continue after the Indemnitee has ceased acting as an Agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of the Indemnitee.
11. Permitted Defenses. It shall be a defense to any action for which a claim for
indemnification is made under this Agreement (other than an action brought to enforce a claim for
Expenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered to
the Company) that the Indemnitee is not entitled to indemnification because of the limitations set
forth in Sections 4 and 9 hereof. Neither the failure of the Company (including its
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Board of Directors) or an Independent Counsel to have made a determination prior to the
commencement of such enforcement action that indemnification of the Indemnitee is proper in the
circumstances, nor an actual determination by the Company (including its Board of Directors) or an
Independent Counsel that such indemnification is improper, shall be a defense to the action or
create a presumption that the Indemnitee is not entitled to indemnification under this Agreement or
otherwise.
12. Subrogation. In the event the Company is obligated to make a payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery under an insurance policy or any other indemnity agreement covering the Indemnitee, who
shall execute all documents required and take all action that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights (provided that
the Company pays the Indemnitee’s costs and expenses of doing so), including without limitation by
assigning all such rights to the extent of such indemnification or advancement of Expenses.
13. Primacy of Indemnification. The Company hereby acknowledges that the Indemnitee
may have certain rights to indemnification, advancement of expenses or liability insurance provided
by a third-party investor and certain of its affiliates (collectively, the “Fund Indemnitors”).
The Company hereby agrees that (i) it is the indemnitor of first resort, i.e., its obligations to
the Indemnitee under this Agreement and any indemnity provisions set forth in its Certificate of
Incorporation, Bylaws or elsewhere (collectively, “Indemnity Arrangements”) are primary, and any
obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same
expenses or liabilities incurred by the Indemnitee is secondary and excess, (ii) it shall advance
the full amount of expenses incurred by the Indemnitee and shall be liable for the full amount of
all expenses, judgments, penalties, fines and amounts paid in settlement by or on behalf of the
Indemnitee, to the extent legally permitted and as required by any Indemnity Arrangement, without
regard to any rights the Indemnitee may have against the Fund Indemnitors, and (iii) it irrevocably
waives, relinquishes and releases the Fund Indemnitors from any claims against the Fund Indemnitors
for contribution, subrogation or any other recovery of any kind arising out of or relating to any
Indemnity Arrangement. The Company further agrees that no advancement or indemnification payment
by any Fund Indemnitor on behalf of the Indemnitee shall affect the foregoing, and the Fund
Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights
of recovery of the Indemnitee against the Company. The Company and the Indemnitee agree that the
Fund Indemnitors are express third party beneficiaries of the terms of this Section 13.
14. Survival of Rights.
(a) All agreements and obligations of the Company contained herein shall continue during the
period Indemnitee is an Agent of the Company and shall continue thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed Proceeding by reason of
the fact that Indemnitee was serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Company, expressly to assume and agree to perform this Agreement in
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the same manner and to the same extent that the Company would be required to perform if no
such succession had taken place.
15. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the
fullest extent permitted by law, including those circumstances in which indemnification would
otherwise be discretionary.
16. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 15 hereof.
17. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless it is in a writing signed by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
18. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a) upon delivery if
delivered by hand to the party to whom such notice or other communication shall have been directed,
(b) if mailed by certified or registered mail with postage prepaid, return receipt requested, on
the third business day after the date on which it is so mailed, (c) one business day after the
business day of deposit with a nationally recognized overnight delivery service, specifying next
day delivery, with written verification of receipt, or (d) on the same day as delivered by
confirmed facsimile transmission if delivered during business hours or on the next successive
business day if delivered by confirmed facsimile transmission after business hours. Addresses for
notice to either party shall be as shown on the signature page of this Agreement, or to such other
address as may have been furnished by either party in the manner set forth above.
19. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. This Agreement is intended to be an
agreement of the type contemplated by Section 145 (f) of the General Corporation Law of Delaware.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which together shall constitute
one and the same Agreement. Only one such counterpart signed by the party against whom enforcement
is sought needs to be produced to evidence the existence of this Agreement.
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The parties hereto have entered into this Indemnity Agreement effective as of the date first
above written.
Indemnitee:
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The Company: | |||
| REPLY! INC. | ||||
Address:
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By: | |||
| Title: | ||||
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