Exhibit 10.1
CAPTURA SOFTWARE, INC
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of _________,
20__, by and between Captura Software, Inc., a Delaware corporation (the
"Corporation"), and ___________ ("Indemnitee").
WHEREAS, the Corporation desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve as officers and
directors of the Corporation and to indemnify its officers and directors so as
to provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Corporation and Indemnitee hereby agree as set forth
below.
1. Certain Definitions.
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(a) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation acting in such capacity or a
corporation owned directly or indirectly by the stockholders of the Corporation
in substantially the same proportions as their ownership of stock of the
Corporation, becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Corporation representing more
than 50% of the total voting power represented by the Corporation's then
outstanding Voting Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation and any new director whose election by the Board of
Directors or nomination for election by the Corporation's stockholders was
approved by a vote of at least two thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the stockholders of the
Corporation approve a merger or consolidation of the Corporation with any other
corporation other than a merger or consolidation which would result in the
Voting Securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the total voting
power represented by the Voting Securities of the Corporation or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Corporation approve a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the Corporation of
(in one transaction or a series of related transactions) all or substantially
all of the Corporation's assets.
(b) "Claim" shall mean any threatened, pending or completed action,
suit, proceeding or alternative dispute resolution mechanism, or any hearing,
inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other.
(c) References to the "Corporation" shall include, in addition to
Captura Software, Inc., any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which Captura
Software, Inc. (or any of its wholly owned subsidiaries) is a party which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
(d) "Expenses" shall mean any and all expenses (including attorneys'
fees and all other costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, to be a witness in or to participate in, any
action, suit, proceeding, alternative dispute resolution mechanism, hearing,
inquiry or investigation), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by the Corporation, which
approval shall not be unreasonably withheld) of any Claim regarding any
Indemnifiable Event and any federal, state, local or foreign taxes imposed on
the Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement.
(e) "Expense Advance" shall mean an advance payment of Expenses to
Indemnitee pursuant to Section 3(a).
(f) "Indemnifiable Event" shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Corporation, or any subsidiary of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity.
(g) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(c) hereof,
who shall not have otherwise performed services for the Corporation or
Indemnitee within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
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(h) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee, agent or fiduciary of the Corporation which imposes duties
on, or involves services by, such director, officer, employee, agent or
fiduciary with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Agreement.
(i) "Reviewing Party" shall mean any appropriate person or body
consisting of a member or members of the Corporation's Board of Directors or any
other person or body appointed by the Board of Directors who is not a party to
the particular Claim for which Indemnitee is seeking indemnification, or
Independent Legal Counsel.
(j) "Voting Securities" shall mean any securities of the Corporation
that vote generally in the election of directors.
2. Indemnification.
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(a) Indemnification of Expenses. The Corporation shall indemnify
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Indemnitee to the fullest extent permitted by law if Indemnitee was or is or
becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, any Claim by reason of (or
arising in part out of) any Indemnifiable Event against Expenses, including all
interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses. Such payment of Expenses shall be made by the
Corporation as soon as practicable but in any event no later than five (5)
business days after written demand by Indemnitee therefor is presented to the
Corporation.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the
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obligations of the Corporation under Section 2(a) shall be subject to the
condition that the Reviewing Party shall not have determined (in a written
opinion, in any case in which the Independent Legal Counsel referred to in
Section 2(c) hereof is involved) that Indemnitee would not be permitted to be
indemnified under applicable law, and (ii) the obligation of the Corporation to
make an Expense Advance shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Corporation shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Corporation) for all such amounts theretofore paid; provided, however, that if
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Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Corporation for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee's obligation to reimburse the Corporation for
any Expense Advance shall be unsecured and no interest shall be charged thereon.
If there has not
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been a Change in Control, the Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control (other than a Change
in Control which has been approved by a majority of the Corporation's Board of
Directors who were directors immediately prior to such Change in Control), the
Reviewing Party shall be the Independent Legal Counsel. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or in
part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and the Corporation hereby consents to service of
process and to appear in any such proceeding. Absent such litigation, any
determination by the Reviewing Party shall be conclusive and binding on the
Corporation and Indemnitee.
(c) Change in Control. The Corporation agrees that if there is a
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Change in Control of the Corporation (other than a Change in Control which has
been approved by a majority of the Corporation's Board of Directors who were
directors immediately prior to such Change in Control), then with respect to all
matters thereafter arising concerning the rights of Indemnitee to payments of
Expenses and Expense Advances under this Agreement or any other agreement or
under the Corporation's Certificate of Incorporation or Bylaws as now or
hereafter in effect, Independent Legal Counsel, if desired by Indemnitee, shall
be selected by Indemnitee and approved by the Corporation (which approval shall
not be unreasonably withheld). Such counsel, among other things, shall render
its written opinion to the Corporation and Indemnitee as to whether and to what
extent Indemnitee would be permitted to be indemnified under applicable law and
the Corporation agrees to abide by such opinion. The Corporation agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. Notwithstanding any other
provision of this Agreement, the Corporation shall not be required to pay
Expenses of more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal Counsel shall
be the Independent Legal Counsel for any or all other Indemnitees unless (i) the
Corporation otherwise determines or (ii) any Indemnitee shall provide a written
statement setting forth in detail a reasonable objection to such Independent
Legal Counsel representing other Indemnitees.
(d) Mandatory Payment of Expenses. Notwithstanding any other
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provision of this Agreement other than Section 9 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim regarding any Indemnifiable Event, Indemnitee shall be indemnified against
all Expenses incurred by Indemnitee in connection therewith.
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3. Expenses; Indemnification Procedure.
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(a) Advancement of Expenses. The Corporation shall advance all
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Expenses incurred by Indemnitee. The advances to be made hereunder shall be
paid by the Corporation to Indemnitee as soon as practicable but in any event no
later than five (5) business days after written demand by Indemnitee therefor to
the Corporation. Expenses incurred in defending any proceeding may be advanced
by the Corporation prior to the final disposition of the proceeding upon receipt
of an undertaking by or on behalf of Indemnitee to repay the Expenses incurred,
if it shall be determined ultimately that Indemnitee is not entitled to be
indemnified.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
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condition precedent to Indemnitee's right to be indemnified under this
Agreement, give the Corporation notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement. Notice to the Corporation shall be directed to the Chief
Operating Officer of the Corporation at the address shown on the signature page
of this Agreement (or such other address as the Corporation shall designate in
writing to Indemnitee). In addition, Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement,
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the termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
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equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to Indemnitee's claim or create a presumption
that Indemnitee has not met any particular standard of conduct or did not have
any particular belief. In connection with any determination by the Reviewing
Party or otherwise as to whether the Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Corporation to establish that
Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
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Corporation of a notice of a Claim pursuant to Section 3(b) hereof, the
Corporation has liability insurance in effect which may cover such Claim, the
Corporation shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in the respective policies.
The Corporation shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Corporation shall be
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obligated hereunder to pay the Expenses of any Claim, the Corporation, if
appropriate, shall be entitled to assume the defense of such Claim with counsel
approved by Indemnitee (not to be unreasonably
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withheld) upon the delivery to Indemnitee of written notice of the Corporation's
election so to do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Corporation, the Corporation
will not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Claim; provided
that, (i) Indemnitee shall have the right to employ Indemnitee's separate
counsel in any such Claim at Indemnitee's expense and (ii) if (A) the employment
of separate counsel by Indemnitee has been previously authorized by the
Corporation, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnitee in the conduct of
any such defense, or (C) the Corporation shall not continue to retain such
counsel to defend such Claim, then the fees and expenses of Indemnitee's
separate counsel shall be at the expense of the Corporation.
4. Additional Indemnification Rights; Nonexclusivity.
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(a) Scope. The Corporation hereby agrees to indemnify the Indemnitee
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to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Corporation's Certificate of Incorporation, the Corporation's
Bylaws (as now or hereafter in effect) or by statute. In the event of any
change after the date of this Agreement in any applicable law, statute or rule
which expands the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, employee, agent or fiduciary, it is the intent
of the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, employee, agent or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as set forth
in Section 9(a) hereof.
(b) Nonexclusivity. The indemnification provided by this Agreement
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shall be in addition to any rights to which Indemnitee may be entitled under the
Corporation's Certificate of Incorporation, its Bylaws (as now or hereafter in
effect), any other agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware, or otherwise.
The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though Indemnitee may have ceased to serve in such capacity.
5. No Duplication of Payments. The Corporation shall not be liable under
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this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Corporation's Certificate of
Incorporation, Bylaw (as now or hereafter in effect) or otherwise) of the
amounts otherwise indemnifiable hereunder.
6. Partial Indemnification. If Indemnitee is entitled under any provision
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of this Agreement to indemnification by the Corporation for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Corporation shall nevertheless indemnify Indemnitee
for the portion of such Expenses to which Indemnitee is entitled.
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7. Mutual Acknowledgment. Both the Corporation and Indemnitee acknowledge
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that in certain instances, federal law or applicable public policy may prohibit
the Corporation from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Corporation has undertaken or may be required in the
future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a
determination of the Corporation's right under public policy to indemnify
Indemnitee.
8. Liability Insurance. To the extent the Corporation maintains liability
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insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Corporation's directors, if Indemnitee is a director; or of the
Corporation's officers, if Indemnitee is not a director of the Corporation but
is an officer; or of the Corporation's key employees, agents or fiduciaries, if
Indemnitee is not an officer or director but is a key employee, agent or
fiduciary.
9. Exceptions. Notwithstanding any other provision of this Agreement, the
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Corporation shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for acts,
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omissions or transactions from which Indemnitee may not be indemnified under
applicable law.
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses
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to Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except (i) with respect to actions or
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other agreement or insurance policy or under the
Corporation's Certificate of Incorporation or Bylaws now or hereafter in effect
relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board
of Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the Delaware General Corporation Law,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses
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incurred by the Indemnitee with respect to any proceeding instituted by
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.
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses
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and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
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10. Period of Limitations. No legal action shall be brought and no cause
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of action shall be asserted by or in the right of the Corporation against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Corporation shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however, that if any shorter
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period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
11. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Corporation), spouses, heirs
and personal and legal representatives. The Corporation shall require and cause
any successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Corporation, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer, employee, agent or fiduciary (as applicable) of
the Corporation or of any other enterprise at the Corporation's request.
13. Attorneys' Fees. In the event that any action is instituted by
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Indemnitee under this Agreement or under any liability insurance policies
maintained by the Corporation to enforce or interpret any of the terms hereof or
thereof, Indemnitee shall be entitled to be paid all Expenses incurred by
Indemnitee with respect to such action, regardless of whether Indemnitee is
ultimately successful in such action, and shall be entitled to the advancement
of Expenses with respect to such action, unless as a part of such action a court
of competent jurisdiction over such action determines that each of the material
assertions made by Indemnitee as a basis for such action was not made in good
faith or was frivolous. In the event of an action instituted by or in the name
of the Corporation under this Agreement to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred
by Indemnitee in defense of such action (including costs and expenses incurred
with respect to Indemnitee's counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action, unless as a part of such action a court having jurisdiction over
such action determines that each of Indemnitee's material defenses to such
action was made in bad faith or was frivolous.
14. Notice. All notices, requests, demands and other communications under
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this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently
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modified by written notice.
15. Consent to Jurisdiction. The Corporation and Indemnitee each hereby
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irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be severable in
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the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. Choice of Law. This Agreement shall be governed by and its provisions
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construed and enforced in accordance with the laws of the State of Delaware as
applied to contracts between Delaware residents entered into and to be performed
entirely within the State of Delaware.
18. Subrogation. In the event of payment under this Agreement, the
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Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination or
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cancellation of this Agreement shall be effective unless it is in writing signed
by both the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.
20. Integration and Entire Agreement. This Agreement sets forth the
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entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.
21. No Construction as Employment Agreement. Nothing contained in this
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Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Corporation or any of its subsidiaries or affiliated entities.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
CAPTURA SOFTWARE, INC.
a Delaware corporation
By:_____________________________________
Title:__________________________________
0000 0/xx/ Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
AGREED TO AND ACCEPTED
INDEMNITEE:
_________________________
[address]
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