INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement, dated
[__________], is made between GT Biopharma, Inc., a Delaware
corporation (the “Company”),
and [__________] (the “Indemnitee”).
RECITALS
A.
The Company desires to attract and retain the services of talented
and experienced individuals, such as Indemnitee, to serve as
directors and officers of the Company and its subsidiaries and
wishes to indemnify its directors and officers to the maximum
extent permitted by law;
B.
The Company and Indemnitee recognize that corporate litigation in
general has subjected directors and officers to expensive
litigation risks;
C. Section 145 of the General Corporation Law
of Delaware, under which the Company is organized
(“Section 145”),
empowers the Company to indemnify its directors and officers by
agreement and to indemnify persons who serve, at the request of the
Company, as the directors and officers of other corporations or
enterprises, and expressly provides that the indemnification
provided by Section 145 is not exclusive;
D. Section 145(g) allows for the purchase of
management liability (“D&O”)
insurance by the Company, which in theory can cover asserted
liabilities without regard to whether they are indemnifiable or
not;
E.
Individuals considering service or presently serving expect to be
extended market terms of indemnification commensurate with their
position, and that entities such as Company will endeavor to
maintain appropriate D&O insurance; and
F.
In order to induce Indemnitee to serve or continue to serve as a
director or officer of the Company and/or one or more subsidiaries
of the Company, the Company and Indemnitee enter into this
Agreement.
AGREEMENT
NOW,
THEREFORE, 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, limited liability company,
employee benefit plan, nonprofit entity, 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 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) A “Change in
Control” shall be deemed
to have occurred if (i) any “person,” as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange
Act”), other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or
becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing a majority of the total
voting power represented by the Company’s then outstanding
voting securities, (ii) during any period of two consecutive
years, individuals who at the beginning of such period constituted
the Board, together with any new directors whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination was
previously so approved, cease for any reason to constitute a
majority of the Board, (iii) the stockholders of the Company
approve a merger or consolidation or a sale of all or substantially
all of the Company’s assets with or to another entity, other
than a merger, consolidation or asset sale that would result in the
holders of the Company’s outstanding voting securities
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least a majority of the total voting
power represented by the voting securities of the Company or such
surviving or successor entity outstanding immediately thereafter,
or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company.
(d) “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 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.
(e) “Proceeding”
means any threatened, pending, or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether formal or
informal, civil, criminal, administrative, or investigative,
including, but not limited to, any such investigation or proceeding
instituted by or on behalf of the Corporation or its Board of
Directors, in which Indemnitee is or reasonably may be involved as
a party or target, that is associated with Indemnitee’s being
an Agent of the Corporation.
(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. Indemnitee has served,
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 Indemnitee currently serves as
an Agent of the Company, so long as 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 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
or other service by Indemnitee, or otherwise mandate any specific
length of past or future service to avail Indemnitee of the
provisions of Section 4 below.
3. Liability
Insurance.
(a) Maintenance of D&O
Insurance. The Company hereby
covenants and agrees that, so long as Indemnitee shall continue to
serve as an Agent of the Company and thereafter so long as
Indemnitee shall be subject to any possible Proceeding by reason of
the fact that 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 insurance (“D&O
Insurance”) in reasonable
amounts from established and reputable insurers, as more fully
described below. In the event of a Change in Control, the Company
shall, as set forth in Section (c) below, either: (i) maintain
such D&O Insurance for six years; or (ii) purchase a six-year
tail for such D&O Insurance.
(b) Rights and
Benefits. In all policies of
D&O Insurance, Indemnitee shall qualify as an insured in such a
manner as to provide 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 Indemnitee is
such an independent director; of the Company’s
non-independent directors if Indemnitee is not an independent
director; of the Company’s officers if Indemnitee is an
officer of the Company; or of the Company’s key employees, if
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 at all,
or of any type, terms, or amount, 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 so as to provide an insufficient or unreasonable benefit;
Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company; or the Company is to be acquired and a
tail policy of reasonable terms and duration can be purchased for
pre-closing acts or omissions by Indemnitee.
4. Mandatory
Indemnification. Subject to the
terms of this Agreement:
(a) Third Party
Actions. If 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 Indemnitee is or was an Agent
of the Company, or by reason of anything done or not done by
Indemnitee in any such capacity, the Company shall indemnify
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 Indemnitee in connection with
the investigation, defense, settlement or appeal of such
Proceeding.
(b) Derivative
Actions. If 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 Indemnitee is or was an Agent of the Company, or by
reason of anything done or not done by Indemnitee in any such
capacity, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
such Proceeding, provided Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company.
(c) Actions where
Indemnitee is Deceased. If
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
Indemnitee is or was an Agent of the Company, or by reason of
anything done or not done by Indemnitee in any such capacity, and
if, prior to, during the pendency of or after completion of such
Proceeding Indemnitee is deceased, the Company shall indemnify
Indemnitee’s heirs, executors and administrators against all
Expenses and liabilities of any type whatsoever to the extent
Indemnitee would have been entitled to indemnification pursuant to
this Agreement were Indemnitee still alive.
(d) Limitations.
Notwithstanding the foregoing provisions of Sections 4(a), 4(b),
and 4(c) hereof, but subject to the exception set forth in
Section 13 which shall control, the Company shall not be
obligated to indemnify the Indemnitee for Expenses or liabilities
of any type whatsoever for which payment (and the Company’s
indemnification obligations under this Agreement shall be reduced
by such payment) is actually made to or on behalf of Indemnitee, by
the Company or otherwise, under a corporate insurance policy, or
under a valid and enforceable indemnity clause, right, by-law, or
agreement; and, in the event the Company has previously made a
payment to Indemnitee for an Expense or liability 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, Indemnitee shall
return to the Company the amounts subsequently received by the
Indemnitee from such other source of
indemnification.
(e) D&O Insurance
Carveout. Capitalized terms in
this subsection not defined in this Agreement are defined in the
Company’s current D&O Insurance policy. In relevant part,
the D&O Insurance presently maintained by the Company states
that the Insurer shall pay Loss of any Insured Person
arising from a Claim first made during the Policy Period against
such Insured Person for a Wrongful Act, if the Company has not indemnified the Insured
Person for such Loss. It is the intention of the parties
hereto that the indemnification provided by this Agreement does not
apply to any Loss covered by the Insurer in any D&O Insurance
policy, provided that the indemnification under this Agreement
shall apply to any such Loss that the Insurer fails to pay for any
reason, including expiration of the D&O Insurance policy,
failure to provide notice(s) required by the D&O Insurance
Policy, or disputes concerning coverage under the D&O Insurance
Policy.
(f) Witness. In
the event that Indemnitee is not a party or threatened to be made a
party to a Proceeding, but is subpoenaed (or given a written
request to be interviewed by a government authority) in such a
Proceeding by reason of the fact that the Indemnitee is or was an
Agent of the Company, or by reason of anything witnessed or
allegedly witnessed by the Indemnitee in that capacity, the Company
shall indemnify the Indemnitee against all actually and reasonably
incurred out of pocket costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and
related disbursements), actually and reasonably incurred by
Indemnitee in responding to such subpoena or written request for an
interview. As a condition to this right, Indemnitee must provide
notice of such subpoena or request to the Company within 14 days of
Indemnitee’s actual receipt thereof (this notice condition
shall control over Section 6(a), which shall not apply to this
Section 4(g)).
5. Mandatory Advancement
of Expenses.
(a)
Subject to the terms of this Agreement and following notice
pursuant to Section 6(a) below, the Company shall advance all
Expenses reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any Proceeding to
which Indemnitee is a party or is threatened to be made a party by
reason of the fact that Indemnitee is or was an Agent of the
Company upon receipt satisfactory documentation supporting such
Expenses. By execution of this Agreement, Indemnitee agrees to
repay the amount advanced only in the event and to the extent that
it shall ultimately be determined that Indemnitee is not entitled
to indemnification by the Company to the extent set forth in this
agreement or under Delaware law. Such advances are intended to be
an obligation of the Company to Indemnitee hereunder and shall in
no event be deemed to be a personal loan. Such advancement of
Expenses shall otherwise be unsecured and without regard to
Indemnitee’s ability to repay. The advances to be made
hereunder shall be paid by the Company to Indemnitee within 30 days
following delivery of a written request therefore by Indemnitee to
the Company, along with such documentation and information as is
reasonably available to the claimant and is reasonably necessary to
determine whether and to what extent the claimant is entitled to
advancement (which shall include without limitation detailed
invoices for legal services). The Company shall discharge its
advancement duty by, at its option, (a) paying such Expenses
on behalf of Indemnitee, (b) advancing to Indemnitee funds in
an amount sufficient to pay such Expenses, or (c) reimbursing
Indemnitee for Expenses already paid by Indemnitee. In the event
that the Company fails to pay Expenses as incurred by Indemnitee as
required by this paragraph, Indemnitee may seek mandatory
injunctive relief (including without limitation specific
performance) from any court having jurisdiction to require the
Company to pay Expenses as set forth in this paragraph. If
Indemnitee seeks mandatory injunctive relief pursuant to this
paragraph, it shall not be a defense to enforcement of the
Company’s obligations set forth in this paragraph that
Indemnitee has an adequate remedy at law for damages.
(b) Undertakings. Indemnitee
shall qualify for advances upon the execution and delivery to the
Company of this Agreement, which constitutes an undertaking whereby
Indemnitee promises to repay any amounts advances in the event
there shall be a final determination that Indemnitee is not
entitled to indemnification by the Company.
6. Notice and Other
Indemnification Procedures.
(a) Notice by
Indemnitee. Promptly after
receipt by Indemnitee of notice of the commencement of or the
threat of commencement of any Proceeding, Indemnitee shall, if
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.
Notwithstanding the foregoing, any failure of Indemnitee to provide
such a notice to the Company, or to provide such a notice in a
timely fashion, shall not relieve the Company of any liability that
it may have to Indemnitee unless, and to the extent that, such
failure actually and materially prejudices the interests of the
Company.
(b) Insurance.
If the Company receives notice pursuant to Section 6(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 Indemnitee, the Company shall be entitled to
assume the defense of such Proceeding, with counsel selected by the
Company and approved by Indemnitee (which approval shall not be
unreasonably withheld), upon the delivery to Indemnitee of written
notice of the Company’s 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 Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding, provided that (i) Indemnitee
shall have the right to employ his or her own counsel in any such
Proceeding at Indemnitee’s expense; and (ii) 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 Indemnitee at the
expense of the Company; (B) Indemnitee shall have reasonably
concluded based on the written advice of Indemnitee’s legal
counsel that there may be a conflict of interest between the
Company and 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. In addition to all the
requirements above, if the Company has D&O Insurance, or
other insurance, with a panel counsel requirement that may cover
the matter for which indemnity is claimed by Indemnitee, then
Indemnitee shall use such panel counsel or other counsel approved
by the insurers, unless there is an actual conflict of interest
posed by representation by all such counsel, or unless and to the
extent Company waives such requirement in writing. Indemnitee
and its counsel shall provide reasonable cooperation with such
insurer on request of the Company.
(d) Notice to
Indemnitee. Promptly after
receipt by the Company of notice of the commencement of or the
threat of commencement of any Proceeding, the Company shall, if the
Company believes that Indemnitee may be a party to or otherwise
affected by such Proceeding, notify Indemnitee in writing of the
commencement or threat of commencement thereof.
7. 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 Indemnitee with respect to Proceedings or
claims initiated or brought voluntarily by 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 specifically to establish or enforce a right to
indemnification under this Agreement or any other statute or law or
otherwise;
(b) Fees on
Fees. To indemnify Indemnitee
for any Expenses incurred by Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this
Agreement, to the extent Indemnitee is not successful in such a
Proceeding;
(c) Unauthorized
Settlements. To indemnify
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 Indemnitee for Expenses associated with any Proceeding
related to, or the payment of profits made from the purchase and
sale (or sale and purchase) by Indemnitee of securities of the
Company within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law (provided, however, that the Company
must advance Expenses for such matters as otherwise permissible
under this Agreement); or
(e) Payments Contrary to
Law. To indemnify or advance
Expenses to Indemnitee for which payment is prohibited by
applicable law.
8. Non-Exclusivity.
The provisions for indemnification and advancement of Expenses set
forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may have under any provision of law, the
Company’s Certificate of Incorporation or Bylaws, the vote of
the Company’s stockholders or disinterested directors, other
agreements, or otherwise, both as to action in Indemnitee’s
official capacity and as to action in another capacity while
occupying Indemnitee’s position as an Agent of the Company.
However, this Agreement replaces any prior contractual
indemnification agreement between Indemnitee and Company (including
when operating under a different name). Indemnitee’s rights
hereunder shall continue after Indemnitee has ceased acting as an
Agent of the Company and shall inure to the benefit of the heirs,
executors and administrators of Indemnitee.
9. 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 5 hereof, provided that the
required documents have been tendered to the Company) that
Indemnitee is not entitled to indemnification because of the
limitations set forth in Sections 4 and 8
hereof.
10. 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 any corporate
insurance policy or any other indemnity agreement covering
Indemnitee, who shall execute all documents reasonably 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 Indemnitee’s costs and
expenses of doing so), including without limitation by assigning
all such rights to the Company or its designee to the extent of
such indemnification or advancement of Expenses. The
Company’s obligation to indemnify or advance expenses under
this Agreement shall be reduced by any amount Indemnitee has
collected from such other source, and in the event that Company has
fully paid such indemnity or expenses, Indemnitee shall return to
the Company any amounts subsequently received from such other
source of indemnification. With regard to Fund Indemnitors,
however, Section 12 shall control over this
section.
11. Primacy of
Indemnification. The Company
hereby acknowledges that 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 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 Indemnitee is secondary and excess,
(ii) it shall advance the full amount of expenses incurred by
Indemnitee and shall be liable for the full amount of all expenses,
judgments, penalties, fines and amounts paid in settlement by or on
behalf of Indemnitee, to the extent legally permitted and as
required by any Indemnity Arrangement, without regard to any rights
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 relating to any Indemnity
Arrangement. The Company further agrees that no advancement or
indemnification payment by any Fund Indemnitor on behalf of
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 Indemnitee against the Company.
The Company and Indemnitee agree that the Fund Indemnitors are
express third party beneficiaries of the terms of this
Section 11. The Company, on its own behalf and on behalf of
its insurers to the extent allowed by the policies, waives
subrogation rights against Indemnitee.
12. 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 the same manner and to the same extent that the
Company would be required to perform if no such succession had
taken place.
13. Interpretation of
Agreement. It is understood
that the parties hereto intend this Agreement to be interpreted and
enforced so as to provide indemnification to Indemnitee to the
fullest extent permitted by law, including those circumstances in
which indemnification would otherwise be
discretionary.
14. 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.
15. 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. In
the event of any change after the date of this Agreement in any
applicable law that expands the right of a Delaware corporation to
indemnify a member of an Agent in the same capacity as Indemnitee,
it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits afforded by such change. Any
narrowing change in any applicable law, however, shall have no
effect on the rights and obligations under this Agreement other
than as may be required by law.
16. 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.
17. 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.
18. 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.
[Signature page follows.]
The
parties hereto have entered into this Indemnification Agreement,
including the undertaking contained herein, effective as of the
date first above written.
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Indemnitee:
_________________________________________
Address:
_________________________________________
_________________________________________
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By:
Name:
Title:
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