INTRALINKS HOLDINGS, INC. INDEMNIFICATION AGREEMENT
AGREEMENT, by and between IntraLinks
Holdings, Inc., a Delaware corporation, and IntraLinks, Inc., a Delaware
corporation, jointly and severally (together, the “Company,” which term shall
include, where appropriate, any entity controlled directly or indirectly by the
Company), and __________________________ (the "Indemnitee").
WITNESSETH:
WHEREAS, the Indemnitee is a director
and/or officer of the Company.
WHEREAS, highly competent persons have
become more reluctant to serve publicly-held corporations as directors or in
other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of
the corporation.
WHEREAS, in recognition of Indemnitee's
need for substantial protection against personal liability in order to enhance
Indemnitee's continued service to the Company in an effective manner and
Indemnitee's reliance on the provisions of the Company's Certificate of
Incorporation ("Certificate of Incorporation") and the Company's Bylaws (the
"Bylaws") requiring indemnification of the Indemnitee to the fullest extent
permitted by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such Certificate of Incorporation and
Bylaws will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Certificate of Incorporation or Bylaws or any
change in the composition of the Company's Board of Directors or acquisition
transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement.
WHEREAS, the Certificate of
Incorporation, the Bylaws and the General Corporation Law of the State of
Delaware ("DGCL") expressly provide that the indemnification provisions set
forth therein are not exclusive and thereby contemplate that contracts may be
entered into between the Company and members of the board of directors, officers
and other persons with respect to indemnification.
WHEREAS, it is reasonable, prudent and
necessary for the Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free
from undue concern that they will not be so indemnified.
WHEREAS, this Agreement is a supplement
to and in furtherance of the Certificate of Incorporation and Bylaws and any
resolutions adopted pursuant thereto and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
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NOW, THEREFORE, in consideration of the
premises and of Indemnitee agreeing to serve or continuing to serve the Company
directly or, at its request, with another enterprise, and intending to be
legally bound hereby, the parties hereto agree as follows:
Section 1. Basic Indemnification
Agreement. (a) In the event Indemnitee was, 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, a Claim (as defined in Section 9(b)
herein)by reason of (or arising in part out of) an Indemnifiable Event (as
defined in Section 9(d) herein), the Company shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any event no later
than 30 days after written demand is presented to the Company, against any and
all Expenses (as defined in Section 9(c) herein), judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection therewith) of such Claim actually and
reasonably incurred by or on behalf of Indemnitee in connection with such Claim
and any federal, state, local or foreign taxes imposed on Indemnitee as a result
of the actual or deemed receipt of any payments under this
Agreement. If requested by Indemnitee in writing, the Company shall
advance (within ten business days of such written request) any and all Expenses
to Indemnitee (an "Expense Advance"). Notwithstanding anything in
this Agreement to the contrary, and except as provided in Section 3, prior
to a Change of Control (as defined in Section 9(a) herein), Indemnitee shall not
be entitled to indemnification pursuant to this Agreement in connection with any
Claim (i) 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 such Claim; or (ii) made on account of Indemnitee's conduct which constitutes
a breach of Indemnitee's duty of loyalty to the Company or its stockholders or
is an act or omission not in good faith or which involves intentional misconduct
or a knowing violation of the law;
or (iii) 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
(the “Exchange Act”).
(b) Notwithstanding
the foregoing, (i) the indemnification obligations of the Company under
Section 1(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
special independent counsel referred to in Section 2 hereof is involved)
that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an Expense Advance pursuant
to Section 1(a) shall be subject to the condition that the Company receives
an undertaking 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 Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced legal proceedings in
the Court of Chancery of the State of Delaware (the "Delaware Court") 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 Company 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 Company for Expense Advances shall be unsecured and
no interest shall be charged thereon. If there has not 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, the Reviewing Party shall be the
special independent counsel referred to in Section 2 hereof. 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 in the Delaware Court seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee.
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Section 2. Change in
Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved
by two- thirds or more of the Company'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 indemnity payments and
Expense Advances under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from special
independent counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed) and who has not
otherwise performed services for the Company within the last five years (other
than in connection with such matters) or for Indemnitee. In the event
that Indemnitee and the Company are unable to agree on the selection of the
special independent counsel, such special independent counsel shall be selected
by lot from among at least five law firms with offices in the State of Delaware
having more than fifty attorneys, having a rating of "av" or better in the then
current Martindale Xxxxxxx Law Directory and having attorneys which specialize
in corporate law. Such selection shall be made in the presence of
Indemnitee (and his legal counsel or either of them, as Indemnitee may
elect). Such counsel, among other things, shall, within 90 days of
its retention, render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of the
special independent counsel referred to above and to fully indemnify 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.
Section 3. Indemnification for
Additional Expenses. The Company shall indemnify Indemnitee
against any and all expenses (including attorneys' fees) and, if requested by
Indemnitee in writing, shall (within ten business days of such written request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any Claim asserted against or action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement, the Bylaws or Certificate of
Incorporation now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be. The Indemnitee
shall qualify for advances solely upon the execution and delivery to the Company
of an undertaking providing that the Indemnitee undertakes to repay the advance
to the extent that it is ultimately determined that the Indemnitee is not
entitled to be indemnified by the Company.
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Section 4. Partial Indemnity,
Etc. If Indemnitee is entitled under any provisions of this
Agreement to indemnification by the Company of some or a portion of the
Expenses, liabilities, judgments, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of 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 has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in part
to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith. In connection with any
determination by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be on the Company
to establish that Indemnitee is not so entitled.
Section 5. No
Presumption. For purposes of this Agreement, the termination
of any action, suit or proceeding by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief.
Section 6. Notification and Defense of
Claim. Within 30 days after receipt by Indemnitee of notice of
the commencement of a Claim which may involve an Indemnifiable Event, Indemnitee
will, if a claim in respect thereof is to be made against the Company under this
Agreement, submit to the Company a written notice identifying the proceeding,
but the omission so to notify the Company will not relieve it from any liability
which it may have to Indemnitee under this Agreement unless the Company is
materially prejudiced by such lack of notice. With respect to any
such Claim as to which Indemnitee notifies the Company of the commencement
thereof:
(a) the
Company will be entitled to participate therein at its own expense;
(b) except
as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume
the defense thereof, with counsel satisfactory to Indemnitee. After
notice from the Company to Indemnitee of its election to assume the defense
thereof, the Company will not be liable to Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by Indemnitee in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ
its own counsel in such action, suit or proceeding, but the fees and expenses of
such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and the Indemnitee in the conduct of
the defense of such action, or (iii) the Company shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of
any claim brought by or on behalf of the Company or as to which Indemnitee shall
have made the conclusion provided for in clause (ii) above; and
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(c) the
Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any
manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold or delay their consent to any proposed
settlement.
Section 7. Non-exclusivity,
Etc. The rights of Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Certificate of Incorporation,
the Bylaws, the DGCL, any agreement, a vote of the stockholders, a resolution of
directors or otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee acting on behalf of the Company and at the request of the
Company prior to such amendment, alteration or repeal. To the extent
that a change in the DGCL (whether by statute or judicial decision), the
Certificate of Incorporation or the Bylaws permits greater indemnification by
agreement than would be afforded currently under the Certificate of
Incorporation, the Bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
Section 8. Liability
Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any Company
director or officer. If, at the time the Company receives notice from
any source of a Claim as to which Indemnitee is a party or a participant (as a
witness or otherwise), the Company has director and officer liability insurance
in effect, the Company shall give prompt notice of such Proceeding to the
insurers in accordance with the procedures set forth in the respective
policies. The Company 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.
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Section 9. Certain
Definitions.
(a) Change
in Control: shall be deemed to have occurred if:
(i) before
the Company has a class of securities registered under Section 12 of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"):
(A) the
Company, or any material subsidiary of the Company, is merged, consolidated or
reorganized into or with another corporation or other legal person (an
"Acquiring Person") or securities of the Company are exchanged for securities of
an Acquiring Person, and as a result of such merger, consolidation,
reorganization or exchange less than a majority of the combined voting power of
the then outstanding securities of the Acquiring Person immediately after such
transaction are held, directly or indirectly, in the aggregate by the holders of
Voting Securities immediately prior to such transaction;
(B) the
Company, or any material subsidiary of the Company, in any transaction or series
of related transactions, sells or otherwise transfers all or substantially all
of its assets to an Acquiring Person, and less than a majority of the combined
voting power of the then outstanding securities of the Acquiring Person
immediately after such sale or transfer are held, directly or indirectly, in the
aggregate by the holders of Voting Securities immediately prior to such sale or
transfer;
(C) during
any period of two consecutive years, individuals who at the beginning of any
such period constitute the directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination
for election by the Company's stockholders, of each director of the Company
first elected during such period was approved by a unanimous vote of the
directors of the Company then still in office who were directors of the Company
at the beginning of any such period;
(D) the
Company and its subsidiaries, in any transaction or series of related
transactions, sells or otherwise transfers business operations that generated
two thirds or more of the consolidated revenues (determined on the basis of the
Company's four most recently completed fiscal quarters) of the Company and its
subsidiaries immediately prior thereto; or
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(E) any other transaction or series of related transactions
occur that have substantially the effect of the transactions specified in any of
the preceding clauses in this paragraph (i); or
(ii) after
the Company has a class of securities registered under Section 12 of the
Exchange Act:
(A) any
person, as that term is used in Section 13(d) and Section 14(d)(2) of
the Exchange Act, becomes, is discovered to be, or files a report on
Schedule 13D or 14D-1 (or any successor schedule, form or report)
disclosing that such person is a beneficial owner (as defined in Rule 13d-3
under the Exchange Act or any successor rule or regulation), directly or
indirectly, of securities of the Company representing 20% or more of the total
voting power of the Company's then outstanding Voting Securities (unless such
person becomes such a beneficial owner in connection with the initial public
offering of the Company);
(B) individuals
who, as of the consummation date of the Company's initial public offering,
constitute the Board of Directors of the Company cease for any reason to
constitute at least a majority of the Board of Directors of the Company, unless
any such change is approved by a unanimous vote of the members of the Board of
Directors of the Company in office immediately prior to such
cessation;
(C) the
Company, or any material subsidiary of the Company, is merged, consolidated or
reorganized into or with an Acquiring Person or securities of the Company are
exchanged for securities of an Acquiring Person, and immediately after such
merger, consolidation, reorganization or exchange less than a majority of the
combined voting power of the then outstanding securities of the Acquiring Person
immediately after such transaction are held, directly or indirectly, in the
aggregate by the holders of Voting Securities immediately prior to such
transaction;
(D) the
Company, or any material subsidiary of the Company, in any transaction or series
of related transactions, sells or otherwise transfers all or substantially all
of its assets to an Acquiring Person, and less than a majority of the combined
voting power of the then outstanding securities of the Acquiring Person
immediately after such sale or transfer is held, directly or indirectly, in the
aggregate by the holders of Voting Securities immediately prior to such sale or
transfer;
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(E) the
Company and its subsidiaries, in any transaction or series of related
transactions, sells or otherwise transfers business operations that generated
two thirds or more of the consolidated revenues (determined on the basis of the
Company's four most recently completed fiscal quarters) of the Company and its
subsidiaries immediately prior thereto;
(F) the
Company files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act disclosing that a change in control of
the Company has or may have occurred or will or may occur in the future pursuant
to any then existing contract or transaction; or
(G) any
other transaction or series of related transactions occur that have
substantially the effect of the transactions specified in any of the preceding
clauses in this paragraph (ii).
Notwithstanding the provisions of
Section 9(a)(ii)(A) or 9(a)(ii)(D), unless otherwise determined in a
specific case by majority vote of the Board of Directors of the Company, a
Change of Control shall not be deemed to have occurred for purposes of this
Agreement solely because (i) the Company, (ii) an entity in which the
Company directly or indirectly beneficially owns 50% or more of the voting
securities or (iii) any Company sponsored employee stock ownership plan, or
any other employee benefit plan of the Company, either files or becomes
obligated to file a report or a proxy statement under or in response to
Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or
any successor schedule, form or report or item therein) under the Exchange Act,
disclosing beneficial ownership by it of shares of stock of the Company, or
because the Company reports that a Change in Control of the Company has or may
have occurred or will or may occur in the future by reason of such beneficial
ownership.
(b) Claim: any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any inquiry, hearing or investigation whether conducted
by the Company or any other party, whether civil, criminal, administrative,
investigative or other.
(c) Expenses: include
attorneys' fees and all other costs, fees, expenses and obligations of any
nature whatsoever paid or incurred in connection with investigating, defending,
being a witness in or participating in (including appeal), or preparing to
defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(d) Indemnifiable
Event: any event or occurrence (whether before or after the date
hereof) related to the fact that Indemnitee is or was a director, officer,
employee, consultant, agent or fiduciary of or to the Company, or is or was
serving at the request of the Board of Directors as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
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(e) Reviewing
Party: (i) the Company's Board of Directors (provided that a
majority of directors are not parties to the particular Claim for which
Indemnitee is seeking indemnification) or (ii) any other person or body
appointed by the Company's Board of Directors, who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or
(iii) if there has been a Change in Control, the special independent
counsel referred to in Section 2 hereof.
(f) Voting
Securities: any securities of the Company which vote generally in the
election of directors.
Section 10. Amendments, Termination and
Waiver. No supplement, modification, amendment or termination
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.
Section 11. Entire
Agreement. This Agreement constitutes the entire
agreement between the Company and the Indemnitee pertaining to the subject
matter hereof, and any and all other written or oral agreements relating to the
subject matter hereof (which shall not include the Certificate of Incorporation
or the Bylaws) existing between the Company and the Indemnitee are expressly
canceled.
Section 12. Subrogation. In
the event of 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 shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
Section 13. No Duplication of
Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under insurance
policy, Certificate of Incorporation or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 14. Binding Effect,
Etc. This Agreement shall be 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
and/or assets of the Company, spouse, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless
of whether Indemnitee continues to serve as a director or officer (or in one of
the capacities enumerated in Section 9(d) hereof) of the Company or of any
other enterprise at the Board of Director's request.
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Section 15. Severability. The
provisions of this Agreement shall be severable in 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.
Section 16. Applicable Law and Consent
to Jurisdiction. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws
rules. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Delaware Court and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) appoint, irrevocably, to the extent
such party is not a resident of the State of Delaware, Corporation Service
Company, 0000 Xxxxxxxxxxx Xxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000 as its agent in the State of Delaware as such party's agent for
acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (v)
waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
Section 17. 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.
[Signature
Page Follows]
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This
Indemnification Agreement is effective as of ________________, the date of
approval by the Board of Directors.
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The
Company:
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By:
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Name
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Title
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INTRALINKS,
INC.
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By:
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Name
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Title
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Acknowledged
and Agreed:
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By:
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Indemnitee
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