EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Agreement (this "Agreement") is made and entered into as of the ___
day of _________, 200_, by and between SPSS Inc., a Delaware corporation (the
"Company"), and _______________ ("Indemnitee").
WHEREAS, it is in the best interests of the Company to retain and attract
as directors and officers the most competent persons available;
WHEREAS, the Board of Directors of the Company (the "Board") believes that
highly competent persons are becoming more reluctant to serve publicly-held
corporations as directors or officers unless they are provided with adequate
protection against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of the corporation; and
WHEREAS, in order to induce Indemnitee to continue to provide services to
the Company as a [DIRECTOR][OFFICER] thereof and to provide increased certainty
to Indemnitee of substantial protection against personal liability, the Board
has determined that it is reasonable, prudent and in the best interests of the
Company for the Company to obligate itself contractually to indemnify Indemnitee
and advance expenses to Indemnitee to the fullest extent permitted by applicable
law; and
WHEREAS, Indemnitee is willing to continue to serve the Company on the
condition that Indemnitee receive the rights and benefits set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein and for certain good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) "Act" means the Delaware General Corporation Law, as amended from time
to time.
(b) "Change of Control" means any one or more of the following: (i) the
accumulation, by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of
greater than fifty percent (50%) of the shares of the then outstanding common
stock of the Company, (ii) a merger or consolidation of the Company in which the
Company does not survive as an independent public company, (iii) a sale of all
or substantially all of the assets of the Company, (iv) a triggering event under
that certain Amended and Restated Rights Agreement, dated as of August 31, 2004,
by and between the Company and Computershare Investor Services, LLC or any
amendment, restatement or replacement thereof, (v) a liquidation or dissolution
of the Company, or (vi) a change in the composition of the Board, not previously
endorsed by the Board existing as of the date of this Agreement or the
directors' endorsed successors, as a result of which fewer than a majority of
the directors are Incumbent Directors; provided, however, that the following
acquisitions shall not constitute a Change of Control for the purposes of this
Agreement: (i) any acquisitions of
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common stock or securities convertible into common stock directly from the
Company, or (ii) any acquisition of common stock or securities convertible into
common stock by any employee benefit plan (or related trust) sponsored or
maintained by the Company.
(c) "Disinterested Director" means a director of the Company who is not a
party to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) "Expenses" shall include attorneys' fees and all other costs,
retainers, filing fees, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, excise taxes, printing and binding
costs, telephone charges, postage, delivery service fees, disbursements and
expenses of any nature whatsoever paid or incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(e) "Incumbent Directors" are directors who either (A) are directors of the
Company as of the date of this Agreement, or (B) are nominated for election to
the Board by the Nominating Committee of the Board and endorsed by the Board
existing as of the date of this Agreement or the directors' endorsed successors.
(e) "Indemnitee's Corporate Status" means the fact that Indemnitee is or
was a director, officer, employee, agent or fiduciary of the Company or of any
other corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving at
the request of the Company.
(f) "Independent Counsel" means a law firm, or an attorney, selected in
accordance with the provisions of Section 7(c) hereof, who is experienced in
matters of corporate law and shall not have otherwise performed services for the
Company or Indemnitee or any other party to the Proceeding giving rise to a
claim for indemnification hereunder in the last five years. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's rights under this Agreement or who has been
sanctioned or censured for ethical violations of applicable standards of
professional conduct.
(g) "Proceeding" includes any claim, action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative.
(h) "Voting Securities" means any securities of the Company that vote
generally in the election of directors of the Company.
SECTION 2. INDEMNIFICATION - GENERAL. The Company shall indemnify and
advance Expenses to Indemnitee as provided in this Agreement and to the fullest
extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may thereafter from time to time permit. To the
extent permitted by law, if the Act (whether by statute or judicial decision)
permits greater indemnity than the indemnity set forth herein, or if any
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amendment is made to the Act expanding the indemnity permissible under Delaware
law, the indemnity obligations contained herein automatically shall be expanded,
without the necessity of action on the part of any party, to the extent
necessary to provide to Indemnitee the fullest indemnity permissible under
Delaware law.
SECTION 3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. The Company shall indemnify Indemnitee in the event that Indemnitee was
or is a party or is threatened to be made a party to any threatened, pending or
completed Proceeding (other than a Proceeding by or in the right of the Company)
by reason of Indemnitee's Corporate Status, against Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by Indemnitee or
on Indemnitee's behalf in connection with such Proceeding or any claim, issue or
matter therein, if 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, and, with respect to any criminal Proceeding, had no reasonable cause
to believe that Indemnitee's conduct was unlawful. With respect to Proceedings
relating to employee benefit plans of the Company, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the interest of
the participants and beneficiaries of such employee benefit plan, Indemnitee
shall be deemed to have acted in a manner not opposed to the best interests of
the Company.
SECTION 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Indemnitee in the event that Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed Proceeding
by or in the right of the Company to procure a judgment in its favor by reason
of Indemnitee's Corporate Status, against Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with the defense
or settlement of such Proceeding if 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. Notwithstanding the foregoing, no indemnification
against such Expenses shall be made in respect of any claim, issue or matter as
to which Indemnitee shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery or the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement in
connection with a Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is successful on the merits or
otherwise in any Proceeding referred to in Section 3 or Section 4 hereof, or in
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection therewith.
SECTION 6. ADVANCEMENT OF EXPENSES. The Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding referred to
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in Section 3 or Section 4 hereof within twenty (20) days after the receipt by
the Company of a written statement or statements from Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay all
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Company against such Expenses.
SECTION 7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that Indemnitee
has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 7(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case: (i) if a Change of Control shall have occurred, by
Independent Counsel (unless Indemnitee shall request that such determination be
made by the Board or the stockholders, in which case such determination shall be
made by the person or persons or in the manner provided for in clauses (ii) or
(iii) of this Section 7(b)) in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee; (ii) if a Change of Control shall not have
occurred, (A) by a majority vote of Disinterested Directors, even though less
than a quorum or (B) by a committee of Disinterested Directors designated by a
majority vote of Disinterested Directors, even though less than a quorum or (C)
if there are no 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 Indemnitee or (D) by the stockholders of the
Company; or (iii) as provided in Section 8(b) hereof; and, if it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within twenty (20) days after such determination. Indemnitee shall
cooperate with the persons making such determination with respect to
Indemnitee's entitlement to indemnification, including providing to such persons
upon reasonable advance request any documentation or information which is
reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the persons making
such determination shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the Company
hereby indemnifies Indemnitee against such Expenses.
(c) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 7(b) hereof, the Independent
Counsel shall be selected as provided in this Section 7(c). If a Change of
Control shall not have occurred, the Independent Counsel shall be selected by
the Board, and the Company shall give written notice to Indemnitee advising
Indemnitee of the identity of the Independent Counsel so selected. If a Change
of Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board, in which event the preceding
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sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within seven (7) days
after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 1 hereof, and the objection shall set forth with
particularity the factual basis of such assertion. If such written objection is
made, the Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without merit.
If, within twenty (20) days after submission by Indemnitee of a written request
for indemnification pursuant to Section 7(a) hereof, no Independent Counsel
shall have been selected and not objected to, either the Company or Indemnitee
may petition the Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection which shall have been
made by the Company or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the Court shall designate, and the
person with respect to whom an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 7(b) hereof. The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 7(b) hereof, and the Company shall pay all reasonable fees and
expenses incident to the procedures of this Section 7(c), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section
9(a)(iii) hereof, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
SECTION 8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 7(a) hereof,
and the Company shall have the burden of proof to overcome that presumption in
connection with the making by any persons of any determination contrary to that
presumption.
(b) If the persons empowered or selected under Section 7 hereof to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within ninety (90) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statements not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such ninety (90) day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the persons making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto; and provided, further, that the foregoing
provisions of this Section 8(b) shall not apply
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(i) if the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 7(b) hereof and if (A) within thirty (30) days
after receipt by the Company of the request for such determination the Board has
resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75)
days after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within thirty (30) days after such receipt for
the purpose of making such determination, such meeting is held for such purpose
within sixty (60) days after having been so called and such determination is
made thereat, or (ii) if the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 7(b) hereof.
(c) It shall be a defense to any action brought by Indemnitee against the
Company to enforce this Agreement (other than an action brought to enforce a
claim for Expenses incurred in defending a Proceeding in advance of its final
disposition where the required undertaking has been tendered to the Company)
that Indemnitee has not met the standards of conduct that make it permissible
under the Act for the Company to indemnify Indemnitee for the amount claimed.
Neither the failure of the persons empowered or selected under Section 7 hereof
to have made a determination prior to the commencement of such action that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct set forth in the Act, nor an actual
determination by the persons empowered or selected under Section 7 hereof that
Indemnitee had not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.
(d) The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee's conduct was unlawful.
SECTION 9. REMEDIES OF INDEMNITEE. (a) In the event that (i) a
determination is made pursuant to Section 7 hereof that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement of Expenses
is not timely made pursuant to Section 6 hereof, (iii) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 7(b) hereof and such determination shall not have been made and
delivered in a written opinion within ninety (90) days after receipt by the
Company of the request for indemnification or (iv) payment of indemnification is
not made within twenty (20) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Section 7 or Section 8 hereof, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware, or
in any other court of competent jurisdiction, determining whether Indemnitee is
entitled to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at Indemnitee's option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 9(a). The
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Company shall not oppose Indemnitee's right to seek any such adjudication or
award in arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 7 hereof that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 9 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. In
any judicial proceeding or arbitration commenced pursuant to this Section 9 the
Company shall have the burden of proving that on the merits Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made
pursuant to Section 7 or Section 8 hereof that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 9, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statements not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 9 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication of or an award in arbitration to enforce Indemnitee's
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the
Company against, any and all expenses (of the types described in the definition
of Expenses in Section 1 hereof) actually and reasonably incurred by Indemnitee
in such judicial adjudication or arbitration, but only if Indemnitee prevails
therein. If it shall be determined in such judicial adjudication or arbitration
that Indemnitee is entitled to receive part but not all of the indemnification
or advancement or expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately
prorated.
SECTION 10. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of the rights of
Indemnitee under Article 9 or any other Article or section of the Restated
Certificate of Incorporation of the Company (as it may be amended from time to
time) or any other rights to which Indemnitee may at any time be entitled under
applicable law, the By-laws of the Company, any agreement, any policy of
insurance, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or termination of this Agreement or any provision hereof
shall be effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in Indemnitee's Corporate Status prior to such
amendment, alteration or termination.
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(b) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 11. DURATION OF AGREEMENT. This Agreement shall continue in effect
and shall survive the termination of Indemnitee's Corporate Status. This
Agreement shall be binding upon the Company and its successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company) and shall inure to the benefit of Indemnitee and Indemnitee's heirs,
executors, administrators and personal and legal representatives.
SECTION 12. SEVERABILITY. If any provision (including any provision within
a single section, paragraph or sentence) of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION 13. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this Agreement, except as
provided in Section 9(e) hereof, prior to a Change of Control Indemnitee shall
not be entitled to indemnification or advancement of Expenses pursuant to this
Agreement with respect to any Proceeding, or any claim, issue or matter therein,
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of the
Proceeding.
SECTION 14. IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
SECTION 15. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
SECTION 16. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing 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.
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SECTION 17. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
SECTION 18. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and received by the party to whom said
notice or other communication shall have been directed, upon such delivery and
receipt, (ii) sent by facsimile or other wire transmission (receipt confirmed),
on the date of transmission or (iii) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If to Indemnitee, to:
[INSERT NAME]
SPSS Inc.
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: _____________
(b) If to the Company to:
SPSS Inc.
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Office of the Secretary
Facsimile: _____________
or such other address as may have been furnished to Indemnitee by the Company or
to the Company by Indemnitee, as the case may be.
SECTION 19. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
without giving effect to the principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SPSS INC.
By
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Name:
----------------------------------
Title:
---------------------------------
INDEMNITEE
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[INSERT NAME]
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