telephone charges, postage, delivery service fees, and all other disbursements or expenses ofthe types customarily incurred in connection with prosecuting, defending, preparing to prosecute ordefend, investigating, being or preparing to be a witness in, or otherwise participating in, aProceeding. Expenses also include (i) Expenses incurred in connection with any appeal resultingfrom any Proceeding, including without limitation the premium, security for, and other costsrelating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) forpurposes of Section 12(b), Expenses incurred by Indemnitee in connection with the interpretation,enforcement or defense of Indemnitee’s rights under this Agreement or under any directors’ andofficers’ liability insurance policies maintained by the Company. Expenses, however, shall notinclude amounts paid in settlement by Indemnitee or the amount of judgments, penalties or finesagainst Indemnitee.          (f) “***Independent Counsel***” means a law firm, or a partner or member of a law firm, that isexperienced in matters of corporation law and neither presently is, nor in the past five years hasbeen, retained to represent (i) the Company or Indemnitee in any matter material to either suchparty (other than as Independent Counsel with respect to matters concerning Indemnitee under thisAgreement, or other indemnitees under similar indemnification agreements), or (ii) any other partyto the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding theforegoing, the term “***Independent Counsel***” shall not include any person who, under the applicablestandards of professional conduct then prevailing, would have a conflict of interest inrepresenting either the Company or Indemnitee in an action to determine Indemnitee’s rights underthis Agreement.          (g) “***Proceeding***” means any threatened, pending or completed action, suit, arbitration,mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearingor proceeding, whether brought in the right of the Company or otherwise and whether of a civil,criminal, administrative or investigative nature, including any appeal therefrom and includingwithout limitation any such Proceeding pending as of the date of this Agreement, in whichIndemnitee was, is or will be involved as a party, a potential party, a non-party witness orotherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company,(ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s part while acting asa director or officer of the Company, or (iii) the fact that he or she is or was serving at therequest of the Company as a director, trustee, general partner, managing member, officer, employee,agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving insuch capacity at the time any liability or Expense is incurred for which indemnification oradvancement of expenses can be provided under this Agreement.          (h) Reference to “***other enterprises***” shall include employee benefit plans; references to“***fines***” shall include any excise taxes assessed on a person with respect to any employee benefitplan; references to “***serving at the request of the Company***” shall include any service as adirector, officer, employee or agent of the Company which imposes duties on, or involves servicesby, such director, officer, employee or agent with respect to an employee benefit plan, itsparticipants or beneficiaries; and a person who acted in good faith and in a manner he or shereasonably believed to be in the best interests of the participants and beneficiaries of anemployee benefit plan shall be deemed to have acted in a manner “***not opposed to the best interestsof the Company***” as referred to in this Agreement.     2. **Indemnity in Third-Party Proceedings.**The Company shall indemnify Indemnitee in accordancewith the provisions of this Section 2 if, by reason of his or her Corporate Status, Indemnitee is,or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceedingby or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2,Indemnitee shall be
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indemnified to the fullest extent permitted by applicable law against all Expenses, judgments,fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his orher behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemniteeacted in good faith and in a manner he or she reasonably believed to be in or not opposed to thebest interests of the Company and, with respect to any criminal Proceeding, had no reasonable causeto believe that his or her conduct was unlawful.     3. **Indemnity in Proceedings by or in the Right of the Company.**The Company shall indemnifyIndemnitee in accordance with the provisions of this Section 3 if, by reason of his or herCorporate Status, Indemnitee is, or is threatened to be made, a party to or a participant in anyProceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to thisSection 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable lawagainst all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf inconnection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in goodfaith and in a manner he or she reasonably believed to be in or not opposed to the best interestsof the Company. No indemnification for Expenses shall be made under this Section 3 in respect ofany claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged by acourt of competent jurisdiction to be liable to the Company, unless and only to the extent that theDelaware Court of Chancery or any court in which the Proceeding was brought shall determine uponapplication that, despite the adjudication of liability but in view of all the circumstances of thecase, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as theDelaware Court of Chancery or such other court shall deem proper. Anything in this Agreement tothe contrary notwithstanding, if the Indemnitee, by reason of the Indemnitee’s Corporate Status, isor was, or is or was threatened to be made, a party to any Proceeding by or in the right of theCompany to procure a judgment in its favor, then the Company shall not indemnify the Indemnitee forany judgment, fines, or amounts paid in settlement to the Company in connection with suchProceeding.     4. **Indemnification for Expenses of a Party Who is Wholly or Partly Successful.**To the extentthat Indemnitee, by reason of his or her Corporate Status, is a party to or a participant in and issuccessful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or mattertherein, the Company shall indemnify Indemnitee against all Expenses actually and reasonablyincurred by Indemnitee or on Indemnitee’s behalf in connection therewith. To the extent permittedby applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, onthe merits or otherwise, in defense of one or more but less than all claims, issues or matters insuch Proceeding, the Company shall indemnify Indemnitee against all Expenses actually andreasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfullyresolved claim, issue or matter. For purposes of this section, the termination of any claim, issueor matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be asuccessful result as to such claim, issue or matter.     5. **Indemnification for Expenses of a Witness.**To the extent that Indemnitee is, by reason ofhis or her Corporate Status, a witness, or is or was made (or asked) to respond to discoveryrequests, in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified tothe fullest extent permitted by applicable law against all Expenses actually and reasonablyincurred by Indemnitee or on Indemnitee’s behalf in connection therewith.     6. **Additional Indemnification.**          (a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnifyIndemnitee to the fullest extent permitted by applicable law if Indemnitee, by reason of his or herCorporate
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Status, is, or is threatened to be made, a party to or a participant in any Proceeding(including a Proceeding by or in the right of the Company to procure a judgment in its favor)against all Expenses, judgments, fines and amounts paid in settlement actually and reasonablyincurred by Indemnitee or on his or her behalf in connection with the Proceeding or any claim,issue or matter therein.          (b) For purposes of Section 6(a), the meaning of the phrase “***to the fullest extent permittedby applicable law***” shall include, but not be limited to:               (i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplatesadditional indemnification by agreement, or the corresponding provision of any amendment to orreplacement of the DGCL; and               (ii) the fullest extent authorized or permitted by any amendments to or replacements of theDGCL adopted after the date of this Agreement that increase the extent to which a corporation mayindemnify its officers and directors.     7. **Exclusions.**Notwithstanding any provision in this Agreement, the Company shall not beobligated under this Agreement to make any indemnity in connection with any Proceeding (or any partof any Proceeding):          (a) for which payment has actually been made to or on behalf of Indemnitee under any statute,insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyondthe amount paid, and except as may otherwise be agreed between the Company, on the one hand, andIndemnitee or another indemnitor of Indemnitee, on the other;          (b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the SecuritiesExchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law orcommon law, if Indemnitee is held liable therefor (including pursuant to any settlementarrangements);          (c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-basedor equity-based compensation or of any profits realized by Indemnitee from the sale of securitiesof the Company, as required in each case under the Securities Exchange Act of 1934, as amended(including any such reimbursements that arise from an accounting restatement of the Companypursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “***Sarbanes-Oxley Act***”), or thepayment to the Company of profits arising from the purchase and sale by Indemnitee of securities inviolation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor(including pursuant to any settlement arrangements);          (d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)initiated by Indemnitee against the Company or its directors, officers, employees, agents or otherindemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevantpart of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, inits sole discretion, pursuant to the powers vested in the Company under applicable law, (iii)otherwise authorized in Section 12(b) or (iv) otherwise required by applicable law; or          (e) if prohibited by applicable law.
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     8. **Advances of Expenses.**The Company shall advance the Expenses incurred by Indemnitee inconnection with any Proceeding in which Indemnitee is, or is threatened to be made, a party to or aparticipant in by reason of Indemnitee’s Corporate Status, and such advancement shall be made assoon as reasonably practicable, but in any event no later than 60 days, after the receipt by theCompany of a written statement or statements from Indemnitee requesting such advances from time totime (which shall include invoices received by Indemnitee in connection with such Expenses orotherwise reasonably evidence the Expenses incurred by Indemnitee, but, in the case of invoices inconnection with legal services, any references to legal work performed or to expenditure made thatwould cause Indemnitee to waive any privilege accorded by applicable law shall not be included withthe invoice). Advances shall be unsecured and interest free and made without regard to Indemnitee’sability to repay such advances. Indemnitee hereby undertakes to repay any advance to the extentthat it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.This Section 8 shall not apply to the extent advancement is prohibited by law and shall not applyto any Proceeding for which indemnity is not permitted under this Agreement, but shall apply to anyProceeding referenced in Section 7(b) or 7(c) prior to a determination that Indemnitee is notentitled to be indemnified by the Company.     9. **Procedures for Notification and Defense of Claim.**          (a) Indemnitee shall notify the Company in writing upon being served with or otherwisereceiving any summons, citation, subpoena, complaint, indictment or other document relating to anyProceeding or any matter which may be subject to indemnification covered hereunder with respect towhich Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonablypracticable following the receipt by Indemnitee thereof. The written notification to the Companyshall include, in reasonable detail, a description of the nature of the Proceeding and the factsunderlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve theCompany from any liability which it may have to Indemnitee hereunder or otherwise than under thisAgreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee ofany rights, except to the extent that such failure or delay materially prejudices the Company.          (b) If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof,the Company has directors’ and officers’ liability insurance in effect, the Company shall giveprompt notice of the commencement of the Proceeding to the insurers in accordance with theprocedures set forth in the applicable policies. The Company shall thereafter take all reasonablynecessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amountspayable as a result of such Proceeding in accordance with the terms of such policies.          (c) In the event the Company may be obligated to make any indemnity in connection with aProceeding, the Company shall be entitled to assume the defense of such Proceeding with counselapproved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery toIndemnitee of written notice of its election to do so. After delivery of such notice, approval ofsuch counsel by Indemnitee and the retention of such counsel by the Company, the Company will notbe liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemniteewith respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of anysuch Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’scounsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company,(ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflictof interest between the Company and Indemnitee in the conduct of any such defense such thatIndemnitee needs to be separately represented, (iii) the Company is not financially or legally
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able to perform its indemnification obligations or (iv) the Company shall not have retained,or shall not continue to retain, such counsel to defend such Proceeding. The Company shall have theright to conduct such defense as it sees fit in its sole discretion. Regardless of any provision inthis Agreement, Indemnitee shall have the right to employ counsel in any Proceeding at Indemnitee’spersonal expense. The Company shall not be entitled, without the consent of Indemnitee, to assumethe defense of any claim brought by or in the right of the Company.          (d) Indemnitee shall give the Company such information and cooperation in connection with theProceeding as may be reasonably appropriate.          (e) The Company shall not be liable to indemnify Indemnitee for any settlement of anyProceeding (or any part thereof) without the Company’s prior written consent, which shall not beunreasonably withheld.     10. **Procedures upon Application for Indemnification.**          (a) To obtain indemnification, Indemnitee shall submit to the Company a written request,including therein or therewith such documentation and information as is reasonably available toIndemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee isentitled to indemnification following the final disposition of the Proceeding. The Company shall,promptly after receipt of such a request for indemnification, advise the board of directors thatIndemnitee has requested indemnification. Any delay in providing the request will not relieve theCompany from its obligations under this Agreement, except to the extent such failure isprejudicial.          (b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), adetermination with respect to Indemnitee’s entitlement thereto shall be made in the specific case(A) by a majority vote of the Disinterested Directors, even though less than a quorum of theCompany’s board of directors, (B) by a committee of Disinterested Directors designated by amajority vote of the Disinterested Directors, even though less than a quorum of the Company’s boardof directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directorsso direct, by Independent Counsel in a written opinion to the Company’s board of directors, a copyof which shall be delivered to Indemnitee or (D) if so directed by the Company’s board ofdirectors, by the stockholders of the Company. If the determination of entitlement toindemnification is to be made by Independent Counsel pursuant to this Section 10(b), theIndependent Counsel shall be selected by the Board of Directors and approved by Indemnitee. Uponfailure of the Board of Directors to so select, or upon the failure of Indemnitee to so approve,such Independent Counsel shall be selected by the Court of Chancery of the State of Delaware orsuch other person or body as the Indemnitee and the Company may agree in writing. If the personmaking such determination shall determine that Indemnitee is entitled to indemnification as to part(but not all) of the application for indemnification, such person shall reasonably pro-rate suchpart of indemnification among such claims, issues or matters. If it is so determined thatIndemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten daysafter such determination. Indemnitee shall cooperate with the person, persons or entity making thedetermination with respect to Indemnitee’s entitlement to indemnification, including providing tosuch person, persons or entity upon reasonable advance request any documentation or informationthat is not privileged or otherwise protected from disclosure and that is reasonably available toIndemnitee and reasonably necessary to such determination. Any costs or expenses (includingattorneys’ fees and disbursements) reasonably incurred by Indemnitee in so cooperating with theperson, persons or entity making such determination shall be borne by the Company, to the fullestextent permitted by applicable law.
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     11. **Presumptions and Effect of Certain Proceedings.**          (a) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,order, settlement or conviction, or upon a plea of *nolo contendere*or its equivalent, shall not(except as otherwise expressly provided in this Agreement) of itself create a presumption thatIndemnitee did not act in good faith and in a manner which he or she reasonably believed to be inor not opposed to the best interests of the Company or, with respect to any criminal Proceeding,that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.          (b) For purposes of any determination of good faith, Indemnitee shall be deemed to have actedin good faith to the extent Indemnitee relied in good faith on (i) the records or books of accountof the Enterprise, including financial statements, (ii) information supplied to Indemnitee by theofficers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for theEnterprise or its board of directors or counsel selected by any committee of the board of directorsor (iv) information or records given or reports made to the Enterprise by an independent certifiedpublic accountant, an appraiser, investment banker or other expert selected with reasonable care bythe Enterprise or its board of directors or any committee of the board of directors. The provisionsof this Section 11(b) shall not be deemed to be exclusive or to limit in any way the othercircumstances in which Indemnitee may be deemed to have met the applicable standard of conduct setforth in this Agreement.          (c) Neither the knowledge, actions nor failure to act of any other director, officer,agent or employee of the Enterprise shall be imputed to Indemnitee for purposes of determining theright to indemnification under this Agreement.          (d) Indemnitee shall cooperate with the person, persons or entity making suchdetermination with respect to Indemnitee’s entitlement to indemnification, including providing tosuch person, persons or entity upon reasonable advance request any documentation or informationwhich is not privileged or otherwise protected from disclosure and which is reasonably available toIndemnitee and reasonably necessary to such determination. Any Independent Counsel or member ofthe Board of Directors shall act reasonably and in good faith in making a determination regardingthe Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses(including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with theperson, persons or entity making such determination shall be borne by the Company (irrespective ofthe determination as to Indemnitee’s entitlement to indemnification) and the Company herebyindemnifies and agrees to hold Indemnitee harmless therefrom.          (e) The Company acknowledges that a settlement or other disposition short of final judgmentmay be successful if it permits a party to avoid expense, delay, distraction, disruption anduncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in anymanner other than by adverse judgment against Indemnitee (including, without limitation, settlementof such action, claim or proceeding with or without payment of money or other consideration) itshall be presumed that Indemnitee has been successful on the merits or otherwise in suchProceeding. Anyone seeking to overcome this presumption shall have the burden of proof and theburden of persuasion by clear and convincing evidence.     12. **Remedies of Indemnitee.**          (a) Subject to Section 12(d), in the event that (i) a determination is made pursuant toSection 10 of this Agreement that Indemnitee is not entitled to indemnification under thisAgreement,
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(ii) advancement of Expenses is not timely made pursuant to Section 8 or 12(b) of this Agreement,(iii) no determination of entitlement to indemnification shall have been made pursuant to Section10 of this Agreement within 90 days after the later of the receipt by the Company of the requestfor indemnification or the final disposition of the Proceeding, (iv) payment of indemnificationpursuant to this Agreement is not made (A) within ten days after a determination has been made thatIndemnitee is entitled to indemnification or (B) with respect to indemnification pursuant toSections 4, 5 and 12(b) of this Agreement, within 30 days after receipt by the Company of a writtenrequest therefor, or (v) the Company or any other person or entity takes or threatens to take anyaction to declare this Agreement void or unenforceable, or institutes any litigation or otheraction or proceeding designed to deny, or to recover from, Indemnitee the benefits provided orintended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication bya court of competent jurisdiction of his or her entitlement to such indemnification or advancementof Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration withrespect to his or her entitlement to such indemnification or advancement of Expenses, to beconducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the AmericanArbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or anaward in arbitration within 180 days following the date on which Indemnitee first has the right tocommence such proceeding pursuant to this Section 12(a); *provided, however,*that the foregoingclause shall not apply in respect of a proceeding brought by Indemnitee to enforce his or herrights under Section 4 of this Agreement. The Company shall not oppose Indemnitee’s right to seekany such adjudication or award in arbitration in accordance with this Agreement.          (b) Neither (i) the failure of the Company, its board of directors, any committee or subgroupof the board of directors, Independent Counsel or stockholders to have made a determination thatindemnification of Indemnitee is proper in the circumstances because Indemnitee has met theapplicable standard of conduct, nor (ii) an actual determination by the Company, its board ofdirectors, any committee or subgroup of the board of directors, Independent Counsel or stockholdersthat Indemnitee has not met the applicable standard of conduct, shall be a defense to the action orcreate a presumption that Indemnitee has or has not met the applicable standard of conduct. In theevent that a determination shall have been made pursuant to Section 10 of this Agreement thatIndemnitee is not entitled to indemnification, any judicial proceeding or arbitration commencedpursuant to this Section 12 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. Inconnection with any determination (including a determination by the Court of Chancery of the Stateof Delaware (or other court of competent jurisdiction)) with respect to entitlement toindemnification hereunder, the Company shall, to the fullest extent not prohibited by law, have theburden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as thecase may be, and any decision that Indemnitee is not entitled to indemnification or advancement ofExpenses must be supported by clear and convincing evidence.          (c) To the fullest extent permissible under applicable law, the Company shall indemnifyIndemnitee against all Expenses that are incurred by Indemnitee in connection with any action forindemnification or advancement of Expenses from the Company under this Agreement or under anydirectors’ and officers’ liability insurance policies maintained by the Company to the extentIndemnitee is successful in such action, and, if requested by Indemnitee, shall (as soon asreasonably practicable, but in any event no later than 60 days, after receipt by the Company of awritten request therefor) advance such Expenses to Indemnitee, subject to the provisions of Section8.          (d) Notwithstanding anything in this Agreement to the contrary, no determination as toentitlement to indemnification shall be required to be made prior to the final disposition of theProceeding.
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     13. **Contribution.**          (a) To the fullest extent permissible under applicable law, whether or not the indemnificationprovided in Sections 2, 3, 4, or 6 hereof is available, in respect of any threatened, pending orcompleted Proceeding in which the Company is jointly liable with Indemnitee (or would be if joinedin such Proceeding), the Company shall pay, in the first instance, the entire amount of anyjudgment or settlement of such Proceeding without requiring Indemnitee to contribute to suchpayment, and the Company hereby waives and relinquishes any right of contribution it may haveagainst Indemnitee. The Company shall not enter into any settlement of any Proceeding in which theCompany is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless suchsettlement provides for a full and final release of all claims asserted against Indemnitee.          (b) To the fullest extent permissible under applicable law, without diminishing or impairingthe obligations of the Company set forth in the preceding subparagraph, if, for any reason,Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement inany threatened, pending or completed Proceeding in which the Company is jointly liable withIndemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amountof Expenses, judgments, fines, liabilities and amounts paid in settlement actually incurred andpaid or payable by Indemnitee in proportion to the relative benefits received by the Company andall officers, directors or employees of the Company, other than Indemnitee, who are jointly liablewith Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on theother hand, from the transaction from which such Proceeding arose; provided, however, that theproportion determined on the basis of relative benefit may, to the extent necessary to conform tolaw, be further adjusted by reference to the relative fault of the Company and all officers,directors or employees of the Company, other than Indemnitee, who are jointly liable withIndemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on theother hand, in connection with the events that resulted in such expenses, judgments, fines,liabilities or settlement amounts, as well as any other equitable considerations which the law mayrequire to be considered. The relative fault of the Company and all officers, directors oremployees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or wouldbe if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall bedetermined by reference to, among other things, the degree to which their actions were motivated byintent to gain personal profit or advantage, the degree to which their liability is primary orsecondary and the degree to which their conduct is active or passive.          (c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claimof contribution brought by officers, directors or employees of the Company, other than Indemnitee,who may be jointly liable with Indemnitee.          (d) To the fullest extent permissible under applicable law, if the indemnification providedfor in this Agreement is unavailable to Indemnitee, the Company, in lieu of indemnifyingIndemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses,judgments, fines or amounts paid or to be paid in settlement, in connection with any claim relatingto an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonablein light of all of the circumstances of such Proceeding in order to reflect (i) the relativebenefits received by the Company and Indemnitee as a result of the events and transactions givingrise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its otherdirectors, officers, employees and agents) in connection with such events and transactions.
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     14. **Non-exclusivity.**The rights of indemnification and to receive advancement of Expenses asprovided by this Agreement shall not be deemed exclusive of any other rights to which Indemniteemay at any time be entitled under applicable law, the Company’s certificate of incorporation orbylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. To theextent that a change in Delaware law, whether by statute or judicial decision, permits greaterindemnification or advancement of Expenses than would be afforded currently under the Company’scertificate of incorporation and bylaws and this Agreement, it is the intent of the parties heretothat Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change,subject to the restrictions expressly set forth herein or therein. Except as expressly set forthherein, no right or remedy herein conferred is intended to be exclusive of any other right orremedy, and every other right and remedy shall be cumulative and in addition to every other rightand remedy given hereunder or now or hereafter existing at law or in equity or otherwise. Except asexpressly set forth herein, the assertion or employment of any right or remedy hereunder, orotherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.Notwithstanding anything in this Agreement to the contrary, the indemnification and contributionprovided for in this Agreement will remain in full force and effect regardless of any investigationmade by or on behalf of Indemnitee or Indemnitee’s agents.     15. **Primary Responsibility.**The Company acknowledges that Indemnitee may have certain rightsto indemnification and advancement of expenses provided by the fund and/or certain affiliatesthereof with whom Indemnitee may be affiliated (collectively, the “***Secondary Indemnitors***”). TheCompany agrees that, as between the Company and the Secondary Indemnitors, the Company is primarilyresponsible for amounts required to be indemnified or advanced under the Company’s certificate ofincorporation or bylaws or this Agreement and any obligation of the Secondary Indemnitors toprovide indemnification or advancement for the same amounts is secondary to those Companyobligations. The Company waives any right of contribution or subrogation against the SecondaryIndemnitors with respect to the liabilities for which the Company is primarily responsible underthis Section 15. In the event of any payment by the Secondary Indemnitors of amounts otherwiserequired to be indemnified or advanced by the Company under the Company’s certificate ofincorporation or bylaws or this Agreement, the Secondary Indemnitors shall be subrogated to theextent of such payment to all of the rights of recovery of Indemnitee for indemnification oradvancement of expenses under the Company’s certificate of incorporation or bylaws or thisAgreement or, to the extent such subrogation is unavailable and contribution is found to be theapplicable remedy, shall have a right of contribution with respect to the amounts paid. TheSecondary Indemnitors are express third-party beneficiaries of the terms of this Section 15.     16. **No Duplication of Payments.**Subject to the provisions of Section 15 above, the Companyshall not be liable under this Agreement to make any payment of amounts otherwise indemnifiablehereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee hasotherwise actually received payment for such amounts under any insurance policy, contract,agreement or otherwise.     17. **Insurance.**To the extent that the Company maintains an insurance policy or policiesproviding liability insurance for directors, trustees, general partners, managing members,officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shallbe covered by such policy or policies to the same extent as the most favorably-insured personsunder such policy or policies in a comparable position.     18. **Subrogation.**In the event of any payment under this Agreement, the Company shall besubrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shallexecute all
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papers required and take all action necessary to secure such rights, including execution ofsuch documents as are necessary to enable the Company to bring suit to enforce such rights.     19. **Services to the Company.**Indemnitee agrees to serve as a director or officer of theCompany or, at the request of the Company, as a director, trustee, general partner, managingmember, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee isduly elected or appointed or until Indemnitee tenders his or her resignation or is removed fromsuch position. Indemnitee may at any time and for any reason resign from such position (subject toany other contractual obligation or any obligation imposed by operation of law), in which event theCompany shall have no obligation under this Agreement to continue Indemnitee in such position. ThisAgreement shall not be deemed an employment contract between the Company (or any of itssubsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that anyemployment with the Company (or any of its subsidiaries or any Enterprise) is at will, andIndemnitee may be discharged at any time for any reason, with or without cause, with or withoutnotice, except as may be otherwise expressly provided in any executed, written employment contractbetween Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existingformal severance policies adopted by the Company’s board of directors or, with respect to serviceas a director or officer of the Company, the Company’s certificate of incorporation or bylaws orthe DGCL. No such document shall be subject to any oral modification thereof.     20. **Duration.**This Agreement shall continue until and terminate upon the later of (a) tenyears after the date that Indemnitee shall have ceased to serve as a director or officer of theCompany or as a director, trustee, general partner, managing member, officer, employee, agent orfiduciary of any other Enterprise, as applicable; or (b) one year after the final termination ofany Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rightsof indemnification or advancement of Expenses hereunder and of any proceeding commenced byIndemnitee pursuant to Section 12 of this Agreement relating thereto.     21. **Successors.**This Agreement shall be binding upon the Company and its successors andassigns, including any direct or indirect successor by purchase, merger, consolidation or otherwiseto all or substantially all of the business or assets of the Company, and shall inure to thebenefit of Indemnitee and Indemnitee’s heirs, executors and administrators.     22. **Severability.**Nothing in this Agreement is intended to require or shall be construed asrequiring the Company to do or fail to do any act in violation of applicable law. The Company’sinability, pursuant to court order or other applicable law, to perform its obligations under thisAgreement shall not constitute a breach of this Agreement. If any provision or provisions of thisAgreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) thevalidity, legality and enforceability of the remaining provisions of this Agreement (includingwithout limitation, each portion of any section of this Agreement containing any such provisionheld to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)shall not in any way be affected or impaired thereby and shall remain enforceable to the fullestextent permitted by law; (ii) such provision or provisions shall be deemed reformed to the extentnecessary to conform to applicable law and to give the maximum effect to the intent of the partieshereto; and (iii) to the fullest extent possible, the provisions of this Agreement (including,without limitation, each portion of any section of this Agreement containing any such provisionheld to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)shall be construed so as to give effect to the intent manifested thereby.
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     23. **Enforcement.**The Company expressly confirms and agrees that it has entered into thisAgreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serveas a director or officer of the Company, and the Company acknowledges that Indemnitee is relyingupon this Agreement in serving as a director or officer of the Company.     24. **Entire Agreement.**This Agreement constitutes the entire agreement between the partieshereto with respect to the subject matter hereof and supersedes all prior agreements andunderstandings, oral, written and implied, between the parties hereto with respect to the subjectmatter hereof; *provided*, *however*, that this Agreement is a supplement to and in furtherance of theindemnification provided in the Company’s certificate of incorporation and bylaws and applicablelaw.     25. **Modification and Waiver.**No supplement, modification or amendment to this Agreement shallbe binding unless executed in writing by the parties hereto. No amendment, alteration or repeal ofthis Agreement shall adversely affect any right of Indemnitee under this Agreement in respect ofany action taken or omitted by such Indemnitee in his or her Corporate Status prior to suchamendment, alteration or repeal. No waiver of any of the provisions of this Agreement shallconstitute or be deemed a waiver of any other provision of this Agreement nor shall any waiverconstitute a continuing waiver.     26. **Notices.**All notices and other communications required or permitted hereunder shall be inwriting and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile orelectronic mail or otherwise delivered by hand, messenger or courier service addressed:          (a) if to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail address asshown on the signature page of this Agreement or in the Company’s records, as may be updated inaccordance with the provisions hereof; or          (b) if to the Company, to the attention of the Chief Executive Officer or Chief FinancialOfficer of the Company at c/o Peter Jakes, Willkie Farr & Gallagher LLP, 787 Seventh Ave., NewYork, NY 10019 or at such other current address as the Company shall have furnished to theInvestors.     Each such notice or other communication shall for all purposes of this Agreement be treated aseffective or having been given (i) if delivered by hand, messenger or courier service, whendelivered (or if sent *via*a nationally-recognized overnight courier service, freight prepaid,specifying next-business-day delivery, one business day after deposit with the courier), (ii) ifsent *via*mail, at the earlier of its receipt or five days after the same has been deposited in aregularly-maintained receptacle for the deposit of the United States mail, addressed and mailed asaforesaid, or (iii) if sent *via*facsimile, upon confirmation of facsimile transfer or, if sent *via*electronic mail, when directed to the relevant electronic mail address, if sent during normalbusiness hours of the recipient, or if not sent during normal business hours of the recipient, thenon the recipient’s next business day.     27. **Applicable Law and Consent to Jurisdiction.**This Agreement and the legal relations amongthe parties shall be governed by, and construed and enforced in accordance with, the laws of theState of Delaware, without regard to its conflict of laws rules. Except with respect to anyarbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company andIndemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arisingout of or in connection with this Agreement shall be brought only in the Delaware Court ofChancery, and not in any other state or federal court in the United States of America or any courtin any other country, (ii) consent to submit to the exclusive jurisdiction
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of the Delaware Court of Chancery for purposes of any action or proceeding arising out of orin connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subjectto service of process in the State of Delaware, The Corporation Trust Company, Wilmington, Delawareas its agent in the State of Delaware as such party’s agent for acceptance of legal process inconnection with any such action or proceeding against such party with the same legal force andvalidity as if served upon such party personally within the State of Delaware, (iv) waive anyobjection to the laying of venue of any such action or proceeding in the Delaware Court ofChancery, and (v) waive, and agree not to plead or to make, any claim that any such action orproceeding brought in the Delaware Court of Chancery has been brought in an improper orinconvenient forum.     28. **Counterparts.**This Agreement may be executed in one or more counterparts, each of whichshall for all purposes be deemed to be an original but all of which together shall constitute oneand the same Agreement. This Agreement may also be executed and delivered by facsimile signatureand in counterparts, each of which shall for all purposes be deemed to be an original but all ofwhich together shall constitute one and the same Agreement. Only one such counterpart signed by theparty against whom enforceability is sought needs to be produced to evidence the existence of thisAgreement.     29. **Captions.**The headings of the paragraphs of this Agreement are inserted for convenienceonly and shall not be deemed to constitute part of this Agreement or to affect the constructionthereof.(*signature page follows*)
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     The parties are signing this Indemnification Agreement as of the date stated in theintroductory sentence.     **COMPANY**     **CLOVIS ONCOLOGY, INC.**     /s/ Patrick J. Mahaffy    (*Signature*)     Patrick J. Mahaffy    (*Print name*)     President and Chief Executive Officer    (*Title*)     **INDEMNITEE**     /s/ Brian G. Atwood    (*Signature*)     Brian G. Atwood    (*Print name*)       (*Street address*)       (*City, State and ZIP*)*Clovis Oncology, Inc. — Indemnification Agreement*