EX-10.39 Form of Indemnification Agreement






Exhibit 10.39




INDEMNIFICATION AGREEMENT




     THIS
INDEMNIFICATION AGREEMENT, is made and entered into as of the ___ day of ___, 2008,
between Terremark Worldwide, Inc., a Delaware corporation (the “Company”), and __________________
(the “Indemnitee”).



Recitals





	 	A.	 	The Company and/or its subsidiaries desires to retain the services of the
Indemnitee as __________________, [and a Director] of the Company.
	 
	 	B.	 	As a condition to the Indemnitee’s agreement to serve the Company as such, the
Indemnitee requires that he be indemnified from liability to the fullest extent
permitted by law.
	 
	 	C.	 	The Company is willing to indemnify the Indemnitee to the fullest extent
permitted by law in order to retain the services of the Indemnitee.





Agreement




     NOW, THEREFORE, for and in consideration of the mutual premises and covenants contained
herein, the Company and the Indemnitee agree as follows:



          Section 1. MANDATORY INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY OR IN THE
RIGHT OF THE COMPANY. Subject to Section 4 hereof, the Company shall indemnify and hold
harmless the Indemnitee from and against any and all claims, damages, expenses (including
attorneys’ fees), judgments, penalties, fines (including excise taxes assessed with respect to an
employee benefit plan), amounts paid in settlement and all other liabilities actually and
reasonably incurred or paid by him in connection with the investigation, defense, prosecution,
settlement or appeal of any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise (other than an action by or in the
right of the Company) and to which the Indemnitee was or is a party or is threatened to be made a
party by reason of the fact that the Indemnitee is or was an officer, director, stockholder,
employee or agent of the Company, or is or was serving at the request of the Company as an officer,
director, partner, trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of anything done or not done by the
Indemnitee in any such capacity or capacities, provided that the Indemnitee acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the Company,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.




          Section 2. MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. Subject to Section 4 hereof, the Company shall indemnify and hold harmless the
Indemnitee from and against any and all expenses (including attorneys’ fees) actually and
reasonably incurred or paid by him in connection with the investigation, defense, prosecution,
settlement or appeal of any threatened, pending or completed action, suit or proceeding by or in
the right of the Company to procure a judgment in its favor, whether civil, criminal,
administrative, investigative or otherwise, and to which the Indemnitee was or is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or was an officer,
director, stockholder, employee or agent of the Company, or is or was serving at the request of the
Company as an officer, director, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of
anything done or not done by the Indemnitee in any such capacity or capacities, provided that (i)
the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and (ii) no indemnification shall be made under this Section
2 in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to
be liable to
the Company for misconduct in the performance of his duty to the Company unless and only to
the extent that the court in which such action, suit or proceeding was brought (or any other court
of competent jurisdiction) shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.




 









 








          Section 3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF NEGLIGENCE.
The Company shall reimburse the Indemnitee for any expenses (including attorneys’ fees) and amounts
paid in settlement actually and reasonably incurred or paid by him in connection with the
investigation, defense, settlement or appeal of any action or suit described in Section 2 hereof
that results in an adjudication that the Indemnitee was liable for negligence, gross negligence or
recklessness (but not willful misconduct) in the performance of his duty to the Company; provided,
however, that the Indemnitee acted in good faith and in a manner he believed to be in the best
interests of the Company.




          Section 4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
Sections 1 and 2 hereof (unless ordered by a court) and any reimbursement made under Section 3
hereof shall be made by the Company only as authorized in the specific case upon a determination
(the “Determination”) that indemnification or reimbursement of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct set forth in
Section 1, 2 or 3 hereof, as the case may be. Subject to Sections 5.6, 5.7, 5.8 and 8 of this
Agreement, the Determination shall be made in the following order of preference:




               (a) first, by the Company’s Board of Directors (the “Board”) by majority vote or consent of
directors (“Disinterested Directors”) who are not, at the time of the Determination, named parties
to such action, suit or proceeding, even though such Disinterested Directors may be less than a
quorum; or




               (b) next, if the majority vote or consent of the Disinterested Directors cannot be obtained,
by majority vote or consent of a committee duly designated by such Disinterested Directors
consisting solely of two or more Disinterested Directors, even though such Disinterested Directors
may be less than a quorum; or




               (c) next, if such a committee cannot be designated, by any independent legal counsel (who may
be any outside counsel regularly employed by the Company); or




               (d) next, if such legal counsel determination cannot be obtained, by vote or consent of the
holders of a majority of the Company’s Common Stock that are represented in person or by proxy at a
meeting called for such purpose.




          4.1 No Presumptions. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not act in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.




          4.2 Benefit Plan Conduct. The Indemnitee’s conduct with respect to an employee
benefit plan for a purpose he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan shall be deemed to be conduct that the Indemnitee reasonably believed to
be not opposed to the best interests of the Company.




          4.3 Reliance as Safe Harbor. For purposes of any Determination hereunder, the
Indemnitee shall be deemed to have acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is
based on (i) the records or books of account of the Company or another enterprise, including
financial statements, (ii)




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information supplied to him by the officers of the Company or another enterprise in the course
of their duties, (iii) the advice of legal counsel for the Company or another enterprise, or (iv)
information or records given or reports made to the Company or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with reasonable care by the
Company or another enterprise. The term “another enterprise” as used in this Section 4.3 shall
mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which the Indemnitee is or was serving at the request of the Company as an officer,
director, partner, trustee, employee or agent. The provisions of this Section 4.3 shall not be
deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in Sections 1, 2 or 3 hereof, as
the case may be.




          4.4 Success on Merits or Otherwise. Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in Section 1 or 2 hereof, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection with the investigation, defense,
settlement or appeal thereof. For purposes of this Section 4.4, the term “successful on the merits
or otherwise” shall include, but not be limited to, (i) any termination, withdrawal or dismissal
(with or without prejudice) of any claim, action, suit or proceeding against the Indemnitee without
any express finding of liability or guilt against him, (ii) the expiration of 120 days after the
making of any claim or threat of an action, suit or proceeding without the institution of the same
and without any promise or payment made to induce a settlement, or (iii) the settlement of any
action, suit or proceeding under Section 1, 2 or 3 hereof pursuant to which the Indemnitee pays
less than $25,000.




          4.5 Partial Indemnification or Reimbursement. If the Indemnitee is entitled under any
provision of this Agreement to indemnification and/or reimbursement by the Company for some or a
portion of the claims, damages, expenses (including attorneys’ fees), judgments, fines or amounts
paid in settlement by the Indemnitee in connection with the investigation, defense, settlement or
appeal of any action specified in Section 1, 2 or 3 hereof, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify and/or reimburse the Indemnitee for the portion
thereof to which the Indemnitee is entitled. The party or parties making the Determination shall
determine the portion (if less than all) of such claims, damages, expenses (including attorneys’
fees), judgments, fines or amounts paid in settlement for which the Indemnitee is entitled to
indemnification and/or reimbursement under this Agreement.




          4.6 Limitations on Indemnification. No indemnification pursuant to Section 1 or 2
hereof shall be paid by the Company if a judgment (after exhaustion of all appeals) or other final
adjudication determines that the Indemnitee’s actions, or omissions to act, were material to the
cause of action so adjudicated and constitute:




               (a) a violation of criminal law, unless the Indemnitee had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was unlawful;




               (b) a transaction from which the Indemnitee derived an improper personal benefit within the
meaning of the Delaware General Corporation Law;




               (c) in the event that the Indemnitee is a director of the Company, a circumstance under which
the liability provisions of Section 174 of the Delaware General Corporation Law are applicable; or




               (d) willful misconduct or conscious disregard for the best interests of the Company in a
proceeding by or in the right of the Company to procure a judgment in its favor or in a proceeding
by or in the right of a stockholder of the Company.




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          4.7 Costs. All costs of making the Determination required by Section 4 hereof shall
be borne solely by the Company, including, but not limited to, the costs of legal counsel, proxy
solicitations and judicial determinations. The Company shall also be solely responsible for paying
(i) all reasonable expenses incurred by the Indemnitee to enforce this Agreement, including, but
not limited to, the costs incurred by the Indemnitee to obtain court-ordered indemnification
pursuant to Section 8 hereof, regardless of the outcome of any such application or proceeding, and
(ii) all costs of defending any suits or proceedings challenging payments to the Indemnitee under
this Agreement.




          Section 5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN SATISFIED.




          5.1 Timing of the Determination. The Company shall use its best efforts to make the
Determination contemplated by Section 4 hereof promptly. In addition, the Company agrees:




               (a) if the Determination is to be made by the Board or a committee thereof, such Determination
shall be made not later than 30 days after a written request for a Determination (a “Request”) is
delivered to the Company by the Indemnitee;




               (b) if the Determination is to be made by independent legal counsel, such Determination shall
be made not later than 45 days after a Request is delivered to the Company by the Indemnitee; and




               (c) if the Determination is to be made by the stockholders of the Company, such Determination
shall be made not later than 120 days after a Request is delivered to the Company by the
Indemnitee.



The failure to make a Determination within the above-specified time period shall constitute a
Determination approving full indemnification or reimbursement of the Indemnitee. Notwithstanding
anything herein to the contrary, a Determination may be made in advance of (i) the Indemnitee’s
payment (or incurring) of expenses with respect to which indemnification or reimbursement is
sought, and/or (ii) final disposition of the action, suit or proceeding with respect to which
indemnification or reimbursement is sought.




          5.2 Reasonableness of Expenses. The evaluation and finding as to the reasonableness
of expenses incurred by the Indemnitee for purposes of this Agreement shall be made (in the
following order of preference) within 30 days after the Indemnitee’s delivery to the Company of a
Request that includes a reasonable accounting of expenses incurred:




               (a) first, by the Board by majority vote or consent of the Disinterested Directors, even
though such Disinterested Directors may be less than a quorum; or




               (b) next, if such a quorum cannot be obtained, by majority vote or consent of a committee duly
designated by the Disinterested Directors, consisting solely of two or more Disinterested
Directors, even though such Disinterested Directors may be less than a quorum; or




               (c) next, if such a committee cannot be designated, by any independent legal counsel (who may
be any outside counsel regularly employed by the Company);



provided, however, that if a determination as to reasonableness of expenses is not made under any
of the foregoing subsections (a), (b) and (c), such determination shall be made, not later than 120
days after the Indemnitee’s delivery of such Request, by vote or consent of the holders of a
majority of the Company’s Common Stock that are represented in person or by proxy at a meeting
called for such purpose.




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All expenses shall be considered reasonable for purposes of this Agreement if the finding
contemplated by this Section 5.3 is not made within the prescribed time. The finding required by
this Section 5.3 may be made in advance of the payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.




          5.3 Payment of Indemnified Amount. Immediately following a Determination that the
Indemnitee has met the applicable standard of conduct set forth in Section 1, 2 or 3 hereof, as the
case may be, and the finding of reasonableness of expenses contemplated by Section 5.3 hereof, or
the passage of time prescribed for making such determination(s), the Company shall pay to the
Indemnitee in cash the amount to which the Indemnitee is entitled to be indemnified and/or
reimbursed, as the case may be, without further authorization or action by the Board; provided,
however, that the expenses for which indemnification or reimbursement is sought have actually been
incurred by the Indemnitee.




          5.4 Stockholder Vote on Determination. Notwithstanding the provisions of Section 145
of the Delaware General Corporation Law, the Indemnitee and any other stockholder who is a party to
the proceeding for which indemnification or reimbursement is sought shall be entitled to vote on
any Determination to be made by the Company’s stockholders, including a Determination made pursuant
to Section 5.7 hereof. In addition, in connection with each meeting at which a stockholder
Determination will be made, the Company shall solicit proxies that expressly include a proposal to
indemnify or reimburse the Indemnitee. Any Company proxy statement relating to a proposal to
indemnify or reimburse the Indemnitee shall not include a recommendation against indemnification or
reimbursement.




          5.5 Selection of Independent Legal Counsel. If the Determination required under
Section 4 is to be made by independent legal counsel, such counsel shall be selected by the
Indemnitee with the approval of the Board, which approval shall not be unreasonably withheld. The
fees and expenses incurred by counsel in making any Determination (including Determinations
pursuant to Section 5.8 hereof) shall be borne solely by the Company regardless of the results of
any Determination and, if requested by counsel, the Company shall give such counsel an appropriate
written agreement with respect to the payment of their fees and expenses and such other matters as
may be reasonably requested by counsel.




          5.6 Right of Indemnitee to Appeal an Adverse Determination by Board. If a
Determination is made by the Board or a committee thereof that the Indemnitee did not meet the
applicable standard of conduct set forth in Section 1, 2 or 3 hereof, upon the written request of
the Indemnitee and the Indemnitee’s delivery of $500 to the Company, the Company shall cause a new
Determination to be made by the Company’s stockholders at the next regular or special meeting of
stockholders. Subject to Section 8 hereof, such Determination by the Company’s stockholders shall
be binding and conclusive for all purposes of this Agreement.




          5.7 Right of Indemnitee To Select Forum For Determination. If, at any time subsequent
to the date of this Agreement, “Continuing Directors” do not constitute a majority of the members
of the Board, or there is otherwise a change in control of the Company (as contemplated by Item
403(c) of Regulation S-K), then upon the request of the Indemnitee, the Company shall cause the
Determination required by Section 4 hereof to be made by independent legal counsel selected by the
Indemnitee and approved by the Board (which approval shall not be unreasonably withheld), which
counsel shall be deemed to satisfy the requirements of clause (3) of Section 4 hereof. If none of
the legal counsel selected by the Indemnitee are willing and/or able to make the Determination,
then the Company shall cause the Determination to be made by a majority vote or consent of a Board
committee consisting solely of Continuing Directors. For purposes of this Agreement, a “Continuing
Director” means either a member of the Board at the date of this Agreement or a person nominated to
serve as a member of the Board by a majority of the then Continuing Directors.




          5.8 Access by Indemnitee to Determination. The Company shall afford to the Indemnitee
and his representatives ample opportunity to present evidence of the facts upon which the
Indemnitee relies for indemnification or reimbursement, together with other information relating to
any requested Determination. The Company shall also afford the Indemnitee the reasonable
opportunity to
include such evidence and information in any Company proxy statement relating to a stockholder
Determination.




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          5.9 Judicial Determinations in Derivative Suits. In each action or suit described in
Section 2 hereof, the Company shall cause its counsel to use its best efforts to obtain from the
Court in which such action or suit was brought (i) an express adjudication whether the Indemnitee
is liable for negligence or misconduct in the performance of his duty to the Company, and, if the
Indemnitee is so liable, (ii) a determination whether and to what extent, despite the adjudication
of liability but in view of all the circumstances of the case (including this Agreement), the
Indemnitee is fairly and reasonably entitled to indemnification.




          Section 6. SCOPE OF INDEMNITY. The actions, suits and proceedings described
in Sections 1 and 2 hereof shall include, for purposes of this Agreement, any actions that involve,
directly or indirectly, activities of the Indemnitee both in his official capacities as a Company
director or officer and actions taken in another capacity while serving as director or officer,
including, but not limited to, actions or proceedings involving (i) compensation paid to the
Indemnitee by the Company, (ii) activities by the Indemnitee on behalf of the Company, including
actions in which the Indemnitee is plaintiff, (iii) actions alleging a misappropriation of a
“corporate opportunity,” (iv) responses to a takeover attempt or threatened takeover attempt of the
Company, (v) transactions by the Indemnitee in Company securities, and (vi) the Indemnitee’s
preparation for and appearance (or potential appearance) as a witness in any proceeding relating,
directly or indirectly, to the Company. In addition, the Company agrees that, for purposes of this
Agreement, all services performed by the Indemnitee on behalf of, in connection with or related to
any subsidiary of the Company, any employee benefit plan established for the benefit of employees
of the Company or any subsidiary, any corporation or partnership or other entity in which the
Company or any subsidiary has a 5% ownership interest, or any other affiliate of the Company, shall
be deemed to be at the request of the Company.




          Section 7. ADVANCE FOR EXPENSES.




          7.1 Mandatory Advance. Expenses (including attorneys’ fees, court costs, judgments,
fines, amounts paid in settlement and other payments) incurred by the Indemnitee in investigating,
defending, settling or appealing any action, suit or proceeding described in Section 1 or 2 hereof
shall be paid by the Company in advance of the final disposition of such action, suit or
proceeding. The Company shall promptly pay the amount of such expenses to the Indemnitee, but in
no event later than 10 days following the Indemnitee’s delivery to the Company of a written request
for an advance pursuant to this Section 7, together with a reasonable accounting of such expenses.




          7.2 Undertaking to Repay. The Indemnitee hereby undertakes and agrees to repay to the
Company any advances made pursuant to this Section 7 if and to the extent that it shall ultimately
be found that the Indemnitee is not entitled to be indemnified by the Company for such amounts.




          7.3 Miscellaneous. The Company shall make the advances contemplated by this Section 7
regardless of the Indemnitee’s financial ability to make repayment, and regardless whether
indemnification of the Indemnitee by the Company will ultimately be required. Any advances and
undertakings to repay pursuant to this Section 7 shall be unsecured and interestfree.




          Section 8. COURT-ORDERED INDEMNIFICATION. Regardless whether the Indemnitee
has met the standard of conduct set forth in Section 1, 2 or 3 hereof, as the case may be, and
notwithstanding the presence or absence of any Determination whether such standards have been
satisfied, the Indemnitee may apply for indemnification (and/or reimbursement pursuant to Section 3
or 12 hereof) to the court conducting any proceeding to which the Indemnitee is a party or to any
other court of competent jurisdiction. On receipt of an application, the court, after giving any
notice the court considers necessary, may order indemnification (and/or reimbursement) if it
determines the Indemnitee is fairly and
reasonably entitled to indemnification (and/or reimbursement) in view of all the relevant
circumstances (including this Agreement).




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          Section 9. NONDISCLOSURE OF PAYMENTS. Except as expressly required by law,
neither party shall disclose any payments under this Agreement unless prior approval of the other
party is obtained. Any payments to the Indemnitee that must be disclosed shall, unless otherwise
required by law, be described only in Company proxy or information statements relating to special
and/or annual meetings of the Company’s stockholders, and the Company shall afford the Indemnitee
the reasonable opportunity to review all such disclosures and, if requested, to explain in such
statement any mitigating circumstances regarding the events reported.




          Section 10. COVENANT NOT TO SUE, LIMITATION OF ACTIONS AND RELEASE OF CLAIMS.
No legal action shall be brought and no cause of action shall be asserted by or on behalf of the
Company (or any of its subsidiaries) against the Indemnitee, his spouse, heirs, executors, personal
representatives or administrators after the expiration of two (2) years following the date the
Indemnitee ceases (for any reason) to serve as either an executive officer or director of the
Company, and any and all such claims and causes of action of the Company (or any of its
subsidiaries) shall be extinguished and deemed released unless asserted by filing of a legal action
within such twoyear period.




          Section 11. INDEMNIFICATION OF INDEMNITEE’S ESTATE. Notwithstanding any other
provision of this Agreement, and regardless whether indemnification of the Indemnitee would be
permitted and/or required under this Agreement, if the Indemnitee is deceased, the Company shall
indemnify and hold harmless the Indemnitee’s estate, spouse, heirs, administrators, personal
representatives and executors (collectively the “Indemnitee’s Estate”) against, and the Company
shall assume, any and all claims, damages, expenses (including attorneys’ fees), penalties,
judgments, fines and amounts paid in settlement actually incurred by the Indemnitee or the
Indemnitee’s Estate in connection with the investigation, defense, settlement or appeal of any
action described in Section 1 or 2 hereof. Indemnification of the Indemnitee’s Estate pursuant to
this Section 11 shall be mandatory and not require a Determination or any other finding that the
Indemnitee’s conduct satisfied a particular standard of conduct.




          Section 12. REIMBURSEMENT OF ALL LEGAL EXPENSES. Notwithstanding any other
provision of this Agreement, and regardless of the presence or absence of any Determination, the
Company promptly (but not later than 30 days following the Indemnitee’s submission of a reasonable
accounting) shall reimburse the Indemnitee for all attorneys’ fees and related court costs and
other expenses incurred by the Indemnitee (but not for judgments, penalties, fines or amounts paid
in settlement) in connection with the investigation, defense, settlement or appeal of any action
described in Section 1 or 2 hereof (including, but not limited to, the matters specified in Section
6 hereof).




          Section 13. MISCELLANEOUS.




          13.1 Notice Provision. Any notice, payment, demand or communication required or
permitted to be delivered or given by the provisions of this Agreement shall be deemed to have been
effectively delivered or given and received on the date personally delivered to the respective
party to whom it is directed, or when deposited by registered or certified mail, with postage and
charges prepaid and addressed to the parties at the respective addresses set forth below opposite
their signatures to this Agreement, or to such other address as to which notice is given.




          13.2 Entire Agreement. Except for the Company’s Articles of Incorporation, this
Agreement constitutes the entire understanding of the parties and supersedes all prior
understandings, whether written or oral, between the parties with respect to the subject matter of
this Agreement.





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          13.3 Severability of Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during the term of this
Agreement, such
provision shall be fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable provision there
shall be added automatically as a part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.




          13.4 Applicable Law. This Agreement shall be governed by and construed under the laws
of the State of Delaware.




          13.5 Execution in Counterparts. This Agreement and any amendment may be executed
simultaneously or in two or more counterparts, each of which together shall constitute one and the
same instrument.




          13.6 Cooperation and Intent. The Company shall cooperate in good faith with the
Indemnitee and use its best efforts to ensure that the Indemnitee is indemnified and/or reimbursed
for liabilities described herein to the fullest extent permitted by law.




          13.7 Amendment. No amendment, modification or alteration of the terms of this
Agreement shall be binding unless in writing, dated subsequent to the date of this Agreement, and
executed by the parties.




          13.8 Binding Effect. The obligations of the Company to the Indemnitee hereunder shall
survive and continue as to the Indemnitee even if the Indemnitee ceases to be a director, officer,
employee and/or agent of the Company. Each and all of the covenants, terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the successors to the Company and, upon
the death of the Indemnitee, to the benefit of the Indemnitee’s estate, heirs, executors,
administrators and personal representatives of the Indemnitee.




          13.9 Gender and Number. Wherever the context shall so require, all words herein in
the male gender shall be deemed to include the female or neuter gender, all singular words shall
include the plural and all plural words shall include the singular.




          13.10 Nonexclusivity. The rights of indemnification and reimbursement provided in
this Agreement shall be in addition to any rights to which the Indemnitee may otherwise be entitled
by statute, bylaw, agreement, vote of stockholders or otherwise.




          13.11 Effective Date. The provisions of this Agreement shall cover claims, actions,
suits and proceedings whether now pending or hereafter commenced and shall be retroactive to cover
acts or omissions or alleged acts or omissions which heretofore have taken place.




     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	ADDRESS:	 	THE COMPANY:
	 
	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	 


	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	ADDRESS:	 	THE INDEMNITEE:
	 
	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	 	 	 






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