Exhibit 10.1


 


DIRECTOR INDEMNITY AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT (the “Agreement”)
is made and entered into as of
                                , 2010
between MPM Acquisition Corp., a Delaware
corporation (“MAC”) and
                  
(“Indemnitee”). Capitalized terms
not immediately defined in the text hereof are defined in Section 13
hereof.


 


WITNESSETH THAT:


 


WHEREAS,
highly competent persons have become more reluctant to serve 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,
the Bylaws and Certificate of Incorporation of MAC require indemnification of
the officers and directors of MAC. 
Indemnitee may also be entitled to indemnification pursuant to the
General Corporation Law of the State of Delaware (“DGCL”).  The Bylaws and
Certificate of Incorporation of MAC and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between MAC and members of the
board of directors of MAC (the “Board”),
officers and other persons with respect to indemnification;


 


WHEREAS,
it is reasonable, prudent and necessary for MAC contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law;


 


WHEREAS,
this Agreement is a supplement to and in furtherance of the Bylaws and
Certificate of Incorporation of MAC and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder; and


 


WHEREAS, Indemnitee
does not regard the protection available under MAC’s Bylaws and Certificate of
Incorporation and insurance as adequate in the present circumstances, and MAC
desires to indemnify Indemnitee to the fullest extent permitted by applicable
law given Indemnitee’s service to MAC as a member of the Board; and


 


NOW, THEREFORE, in consideration of Indemnitee’s service as a director
of MAC, the parties hereto agree as follows:


 


1.             Indemnity of Indemnitee.  MAC shall hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, as such may be amended from
time to time.  In furtherance of the
foregoing indemnification, and without limiting the generality thereof:


 


(a)           Proceedings Other Than
Proceedings by or in the Right of MAC.  Indemnitee shall be entitled to the rights of
indemnification provided in this Section l(a) if, by reason of
his Corporate Status (as hereinafter defined), the Indemnitee is, or is
threatened to be made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right of MAC.  Pursuant to this Section 1(a), Indemnitee
shall be indemnified against


 

















 


all Expenses (as hereinafter defined), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any claim, issue or matter
therein, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of MAC, and
with respect to any criminal Proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful.


 


(b)           Proceedings by or in the
Right of MAC.  Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(b) if,
by reason of his Corporate Status, the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding brought by or in the right of
MAC.  Pursuant to this Section 1(b), Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by
the Indemnitee, or on the Indemnitee’s behalf, in connection with such
Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of MAC; provided,
however, if applicable law so provides, no indemnification against such
Expenses shall be made in respect of any claim, issue or matter in such
Proceeding as to which Indemnitee shall have been adjudged to be liable to MAC
unless and to the extent that the Court of Chancery of the State of Delaware
shall determine that such indemnification may be made.


 


(c)           Indemnification for Expenses
of a Party Who is Wholly or Partly Successful.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a party to and is successful, on the merits or otherwise, in any Proceeding, he
shall be indemnified to the maximum extent permitted by law, as such may be
amended from time to time, against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.  If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, MAC shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved claim, issue
or matter.  For purposes of this
Section and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.


 


(d)           If one or more venture
capital funds affiliated with MPM Capital (an “Appointing
Stockholder”) is, or is threatened to be made, a party to or a
participant in any Proceeding relating to or arising by reason of Appointing
Stockholder’s position as the sole stockholder of, or sole lender to, the Company,
or Appointing Stockholder’s appointment of or affiliation with Indemnitee or
any other director, including without limitation any alleged misappropriation
of a Company asset or corporate opportunity, any claim of misappropriation or
infringement of intellectual property relating to the Company, any alleged
false or misleading statement or omission made by the Company (or on its
behalf) or its employees or agents, or any allegation of inappropriate control
or influence over the Company or its Board members, officers, equity holders or
debt holders, then the Appointing Stockholder will be entitled to
indemnification hereunder for Expenses to the same extent as Indemnitee, and
the terms of this Agreement as they relate to procedures for indemnification of
Indemnitee and advancement of Expenses shall apply to any such indemnification
of Appointing Stockholder.  The Company and Indemnitee agree that
the Appointing Stockholder is an express third party beneficiary of the terms
of this Section 1(d).


 

















 


2.             Additional Indemnity.  In addition to, and without regard to any
limitations on, the indemnification provided for in Section 1 of
this Agreement, MAC shall and hereby does indemnify and hold harmless
Indemnitee against all Expenses, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding (including a Proceeding by or in the right of the
Company), including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of Indemnitee.  The only limitation that shall exist upon MAC’s
obligations pursuant to this Agreement shall be that MAC shall not be obligated
to make any payment to Indemnitee that is finally determined (under the
procedures, and subject to the presumptions, set forth in Sections 6 and
7 hereof) to be unlawful.


 


3.             Contribution.


 


(a)           Whether or not the
indemnification provided in Sections 1 and 2 hereof is available,
in respect of any threatened, pending or completed action, suit or proceeding
in which MAC is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), MAC shall pay, in the first instance, the entire
amount of any judgment or settlement of such action, suit or proceeding without
requiring Indemnitee to contribute to such payment and MAC hereby waives and
relinquishes any right of contribution it may have against Indemnitee. MAC
shall not enter into any settlement of any action, suit or proceeding in which
MAC is jointly liable with Indemnitee (or would be if joined in such action,
suit or proceeding) unless such settlement provides for a full and final
release of all claims asserted against Indemnitee.


 


(b)           Without diminishing or
impairing the obligations of MAC 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 in any threatened, pending or completed
action, suit or proceeding in which MAC is jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), MAC shall contribute to
the amount of Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by MAC and all officers, directors
or employees of MAC, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, from the transaction or events
from which such action, suit or proceeding arose; provided, however,
that the proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by reference to the
relative fault of MAC and all officers, directors or employees of MAC other
than Indemnitee who are jointly liable with Indemnitee (or would be if joined
in such action, suit or proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the transaction or events that resulted in such
expenses, judgments, fines or settlement amounts, as well as any other
equitable considerations which the applicable law may require to be
considered.  The relative fault of MAC
and all officers, directors or employees of MAC, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.


 

















 


(c)           MAC shall fully indemnify
and hold Indemnitee harmless from any claims of contribution which may be
brought by officers, directors or employees of MAC, other than Indemnitee, who
may be jointly liable with Indemnitee.


 


(d)           To the fullest extent
permissible under applicable law, if the indemnification provided for in this
Agreement is unavailable to Indemnitee for any reason whatsoever, MAC, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating
to an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by MAC and Indemnitee
as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of MAC (and its directors,
officers, employees and agents) and Indemnitee in connection with such
event(s) and/or transaction(s).


 


4.             Indemnification for Expenses
of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a witness, or is made
(or asked) to respond to discovery requests, in any Proceeding to which
Indemnitee is not a party, he shall be indemnified by MAC against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.


 


5.             Advancement of Expenses.  Notwithstanding any other provision of this
Agreement, MAC shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of Indemnitee’s
Corporate Status within thirty (30) days after the receipt by MAC of a
statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding.  Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and shall include
or be preceded or accompanied by a written undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be determined
that Indemnitee is not entitled to be indemnified against such Expenses.  Any advances and undertakings to repay
pursuant to this Section 5 shall be unsecured and interest free.


 


6.             Procedures and Presumptions
for Determination of Entitlement to Indemnification.  It is the intent of this Agreement to secure
for Indemnitee rights of indemnity that are as favorable as may be permitted
under the DGCL and public policy of the State of Delaware.  Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to
whether Indemnitee is entitled to indemnification under this Agreement:


 


(a)           To obtain indemnification
under this Agreement, Indemnitee shall submit to MAC a written request,
including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification.  The Secretary of MAC shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors of
MAC in writing that Indemnitee has requested indemnification. Notwithstanding
the foregoing, any failure of Indemnitee to provide such a request to MAC, or
to provide such a request in a timely fashion, shall not relieve MAC of any
liability that it may have to Indemnitee unless, and to the extent that, such
failure actually and materially prejudices the interests of MAC.


 

















 


(b)           Upon written request by
Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof,
a determination with respect to Indemnitee’s entitlement thereto shall be made
in the specific case by one of the following four methods, which shall be at
the election of the board:  (1) by a
majority vote of the disinterested directors of MAC, even though less than a
quorum, (2) by a committee of disinterested directors of MAC designated by
a majority vote of the disinterested directors of MAC, even though less than a
quorum, (3) if there are no disinterested directors or if the
disinterested directors so direct, by independent legal counsel in a written
opinion to the Board of Directors of MAC a copy of which shall be delivered to
the Indemnitee, or (4) if so directed by the Board of Directors of MAC, by
the stockholders of MAC.  For purposes
hereof, disinterested directors are those members of the board of directors of
MAC who are not parties to the action, suit or proceeding in respect of which
indemnification is sought by Indemnitee.


 


(c)           If the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 6(b) hereof, the Independent Counsel shall be selected
as provided in this Section 6(c). 
The Independent Counsel shall be selected by the Board of Directors of
MAC.  Indemnitee may, within 10 days
after such written notice of selection shall have been given, deliver to MAC a
written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent
Counsel” as defined in Section 13 of this Agreement, and
the objection shall set forth with particularity the factual basis of such
assertion.  Absent a proper and timely
objection, the person so selected shall act as Independent Counsel.  If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. 
If, within 20 days after submission by Indemnitee of a written request
for indemnification pursuant to Section 6(a) hereof, no
Independent Counsel shall have been selected and not objected to, either MAC or
Indemnitee may petition the Court of Chancery of the State of Delaware or other
court of competent jurisdiction for resolution of any objection which shall
have been made by the Indemnitee to the selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by the court or
by such other person as the court shall designate, and the person with respect
to whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 6(b) hereof.  MAC shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof, and
MAC shall pay all reasonable fees and expenses incident to the procedures of
this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed.


 


(d)           In making a determination
with respect to entitlement to indemnification hereunder, the person or persons
or entity making such determination shall presume that Indemnitee is entitled
to indemnification under this Agreement. 
Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion by clear and convincing evidence.  Neither the failure of MAC (including by its
directors or independent legal counsel) to have made a determination prior to
the commencement of any action pursuant to this Agreement that indemnification
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by MAC (including by its
directors or independent legal counsel) that Indemnitee has not met such
applicable standard of


 

















 


conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.


 


(e)           Indemnitee shall be deemed
to have acted in good faith if Indemnitee’s action is based on the records or
books of account of the Enterprise (as hereinafter defined), including
financial statements, or on information supplied to Indemnitee by the officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made
to the Enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Enterprise.  In addition, the knowledge and/or actions, or
failure to act, of any director, officer, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. 
Whether or not the foregoing provisions of this Section 6(e) are
satisfied, it shall in any event be presumed that Indemnitee has at all times
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of MAC. 
Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion by clear and convincing evidence.


 


(f)            If the person, persons or
entity empowered or selected under Section 6 to determine whether Indemnitee
is entitled to indemnification shall not have made a determination within sixty
(60) days after receipt by MAC of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law; provided, however, that such 60-day
period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making such determination
with respect to entitlement to indemnification in good faith requires such
additional time to obtain or evaluate documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this Section 6(f) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 6(b) of this Agreement
and if (A) within fifteen (15) days after receipt by MAC of the request
for such determination, the Board of Directors or the Disinterested Directors,
if appropriate, resolve to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held within seventy-five
(75) days after such receipt and such determination is made thereat, or (B) a
special meeting of stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such meeting is held for
such purpose within sixty (60) days after having been so called and such
determination is made thereat.


 


(g)           Indemnitee shall cooperate
with the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination.  Any Independent Counsel,
member of the Board of Directors of MAC or stockholder of MAC shall act
reasonably and in good faith in making a determination regarding the Indemnitee’s
entitlement to indemnification under this Agreement.  Any costs or expenses (including attorneys’
fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by MAC
(irrespective of the


 

















 


determination as to Indemnitee’s entitlement to indemnification) and
MAC hereby indemnifies and agrees to hold Indemnitee harmless therefrom.


 


(h)           MAC acknowledges that a
settlement or other disposition short of final judgment may be successful if it
permits a party to avoid expense, delay, distraction, disruption and
uncertainty.  In the event that any
action, claim or proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits or otherwise in such action, suit or
proceeding.  Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.


 


(i)            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
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of MAC or,
with respect to any criminal Proceeding, that Indemnitee had reasonable cause
to believe that his conduct was unlawful.


 


7.             Remedies of Indemnitee.


 


(a)           In the event that (i) a
determination is made pursuant to Section 6 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement,
(ii) advancement of Expenses is not timely made pursuant to Section 5
of this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(b) of this
Agreement within 90 days after receipt by MAC of the request for
indemnification, (iv) payment of indemnification is not made pursuant to
this Agreement within ten (10) days after receipt by MAC of a written
request therefor or (v) payment of indemnification is not made within ten
(10) days after a determination has been made that Indemnitee is entitled
to indemnification or such determination is deemed to have been made pursuant
to Section 6 of this Agreement, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of Indemnitee’s entitlement to such
indemnification.  Indemnitee shall
commence such proceeding seeking an adjudication within 180 days following the
date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 7(a). 
MAC shall not oppose Indemnitee’s right to seek any such adjudication.


 


(b)           In the event that a
determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 7 shall be conducted
in all respects as a de novo trial on the merits, and Indemnitee shall not be
prejudiced by reason of the adverse determination under Section 6(b).


 


(c)           If a determination shall
have been made pursuant to Section 6(b) of this Agreement that
Indemnitee is entitled to indemnification, MAC shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 7,
absent (i) a misstatement by Indemnitee of a material fact, or an omission
of a material fact necessary to


 

















 


make Indemnitee’s misstatement not materially misleading in connection
with the application for indemnification, or (ii) a prohibition of such
indemnification under applicable law.


 


(d)           In the event that
Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of his rights under, or to recover damages for breach of, this
Agreement, or to recover under any directors’ and officers’ liability insurance
policies maintained by MAC, MAC shall pay on his behalf, in advance, any and
all expenses (of the types described in the definition of Expenses in Section 13
of this Agreement) actually and reasonably incurred by him in such judicial
adjudication, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of expenses or insurance
recovery.


 


(e)           MAC shall be precluded from
asserting in any judicial proceeding commenced pursuant to this Section 7
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court that MAC is bound by all
the provisions of this Agreement.  MAC
shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by MAC of a written request
therefore) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advance of Expenses from MAC under
this Agreement or under any directors’ and officers’ liability insurance
policies maintained by MAC, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of Expenses or
insurance recovery, as the case may be.


 


(f)            Notwithstanding anything in
this Agreement to the contrary, no determination as to entitlement to
indemnification under this Agreement shall be required to be made prior to the
final disposition of the Proceeding.


 


8.             Non-Exclusivity; Survival of
Rights; Insurance; Primacy of Indemnification; Subrogation.


 


(a)           The rights of
indemnification as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under
applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a
vote of stockholders, a resolution of directors of MAC, 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 in his Corporate Status prior to such amendment, alteration or
repeal.  To the extent that a change in
the DGCL, whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under  the Certificate of Incorporation, 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.


 


(b)           To the extent that MAC maintains
an insurance policy or policies providing liability insurance for directors,
officers, employees, or agents or fiduciaries of MAC


 

















 


or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that such person serves at the
request of MAC, 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 director, officer, employee, agent or fiduciary under such policy
or policies.  If, at the time of the
receipt of a notice of a claim pursuant to the terms hereof, MAC has director
and officer liability insurance in effect, MAC shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. MAC 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 proceeding in accordance
with the terms of such policies.


 


(c)           The Company hereby
acknowledges that Indemnitee has certain rights to indemnification, advancement
of expenses and/or insurance provided by MPM Capital and certain of its
affiliates (collectively, the “Fund Indemnitors”).  The Company hereby agrees (i) that it is
the indemnitor of first resort (i.e., its obligations to Indemnitee are primary
and any obligation of the Fund Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall be required to advance the full amount of
expenses incurred by Indemnitee and shall be liable for the full amount of all
Expenses, judgments, penalties, fines and amounts paid in settlement to the
extent legally permitted and as required by the terms of this Agreement and the
Certificate of Incorporation or Bylaws of the Company (or any other agreement
between the Company and Indemnitee), without regard to any rights Indemnitee
may have against the Fund Indemnitors, and, (iii)  that it irrevocably
waives, relinquishes and releases the Fund Indemnitors from any and all claims
against the Fund Indemnitors for contribution, subrogation or any other
recovery of any kind in respect thereof. 
The Company further agrees that no advancement or payment by the Fund
Indemnitors on behalf of Indemnitee with respect to any claim for which
Indemnitee has sought indemnification from the Company shall affect the
foregoing and the Fund Indemnitors shall have a right of contribution and/or be
subrogated to the extent of such advancement or payment to all of the rights of
recovery of Indemnitee against the Company. 
The Company and Indemnitee agree that the Fund Indemnitors are express
third party beneficiaries of the terms of this Section 8(c).


 


(d)           Except as provided in
paragraph (c) above, in the event of any payment under this Agreement, MAC
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee (other than against the Fund Indemnitors), who shall
execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable MAC to
bring suit to enforce such rights.


 


(e)           Except as provided in
paragraph (c) above, MAC shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.


 


(f)            Except as provided in
paragraph (c) above, MAC’s obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of MAC as a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification or
advancement of expenses from such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise.


 

















 


9.             Exception to Right of
Indemnification. Notwithstanding any provision in this Agreement,
MAC shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:


 


(a)           for which payment has
actually been made to or on behalf of Indemnitee under any insurance policy or
other indemnity provision, except with respect to any excess beyond the amount
paid under any insurance policy or other indemnity provision; provided, that
the foregoing shall not affect the rights of Indemnitee or Fund Indemnitors set
forth in Section 8(c) above; or


 


(b)           for an accounting of profits
made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of MAC within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law; or


 


(c)           in connection with any
Proceeding (or any part of any Proceeding) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
MAC or its directors, officers, employees or other indemnitees, unless
(i) the Board of Directors of MAC authorized the Proceeding (or any part
of any Proceeding) prior to its initiation or (ii) MAC provides the indemnification,
in its sole discretion, pursuant to the powers vested in MAC under applicable
law.


 


10.           Duration of Agreement.  All agreements and obligations of MAC
contained herein shall continue during the period Indemnitee is an officer or
director of MAC (or is or was serving at the request of MAC as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise) and shall continue thereafter so long as Indemnitee
shall be subject to any Proceeding (or any proceeding commenced under Section 7
hereof) by reason of his Corporate Status, whether or not he is acting or
serving in any such capacity at the time any liability or expense is incurred
for which indemnification can be provided under this Agreement.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of MAC), assigns, spouses, heirs, executors and personal and legal
representatives. At the request of Indemnitee at any time prior to June 1,
2011, MAC shall require any subsidiary that prior to June 1, 2011 owned
assets that comprise more that 50% of the combined assets of MAC and all of its
subsidiaries to be bound by this agreement to the same extent as MAC.


 


11.           Security.  To the extent requested by Indemnitee and
approved by the Board of Directors of MAC, MAC may at any time and from time to
time provide security to Indemnitee for MAC’s obligations hereunder through an
irrevocable bank line of credit, funded trust or other collateral.  Any such security, once provided to
Indemnitee, may not be revoked or released without the prior written consent of
the Indemnitee.


 

















 


12.           Enforcement.         Except as set
forth in the MAC By-laws and/or Certificate of Incorporation, this Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the
subject matter hereof.  The Company shall
not seek from a court, or agree to, a “bar order” which would have the effect
of prohibiting or limiting the Indemnitee’s rights to receive advancement of
expenses under this Agreement.


 


13.           Definitions.  For purposes of this Agreement:


 


(a)           “Corporate Status” describes the status of a person who is or
was a director, officer, employee, agent or fiduciary of MAC or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving at the express written request of
MAC.


 


(b)           “Disinterested Director” means a director of MAC who is not and
was not a party to the Proceeding in respect of which indemnification is sought
by Indemnitee.


 


(c)           “Enterprise” shall mean MAC and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
that Indemnitee is or was serving at the express written request of MAC as a
director, officer, employee, agent or fiduciary.


 


(d)           “Expenses” shall include all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding, or responding to, or objecting to, a request to
provide discovery in any Proceeding. 
Expenses also shall include Expenses incurred in connection with any
appeal resulting from any Proceeding and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed receipt of
any payments under this Agreement, including without limitation the premium,
security for, and other costs relating to any cost bond, supersede as bond, or
other appeal bond or its equivalent. 
Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.


 


(e)           “Independent Counsel” means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent:  (i) MAC or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either MAC or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.  MAC shall
pay the reasonable fees of the Independent Counsel referred to above and to
fully indemnify such counsel against any and all Expenses, claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.


 

















 


(f)            “Proceeding” includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of MAC or otherwise
and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of
his or her Corporate Status, by reason of any action taken by him or of any
inaction on his part while acting in his or her Corporate Status; in each case
whether or not he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided
under this Agreement; including one pending on or before the date of this
Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7
of this Agreement to enforce his rights under this Agreement.


 


14.           Severability.  The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.  Further, the invalidity
or unenforceability of any provision hereof as to either Indemnitee or Appointing
Stockholder shall in no way affect the validity or enforceability of any
provision hereof as to the other. 
Without limiting the generality of the foregoing, this Agreement is
intended to confer upon Indemnitee and Appointing Stockholder indemnification
rights to the fullest extent permitted by applicable laws.  In the event any provision hereof conflicts
with any applicable law, such provision shall be deemed modified, consistent
with the aforementioned intent, to the extent necessary to resolve such
conflict.


 


15.           Modification and Waiver.  No supplement, modification, termination or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto.  No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.


 


16.           Notice By Indemnitee.  Indemnitee agrees promptly to notify MAC in
writing upon being served with or otherwise receiving any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification covered
hereunder.  The failure to so notify MAC
shall not relieve MAC of any obligation which it may have to Indemnitee under
this Agreement or otherwise unless and only to the extent that such failure or
delay materially prejudices MAC.


 


17.           Notices.  All notices and other communications given or
made pursuant to this Agreement shall be in writing and shall be deemed effectively
given:  (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient, and if not so
confirmed, then on the next business day, (c) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt.  All communications
shall be sent:


 


(a)           To Indemnitee at the address
set forth below Indemnitee signature hereto.


 


(b)           To MAC at:


 

















 


c/o MPM Asset Management LLC   

200 Clarendon Street, 54th Floor       

Boston, MA  02116


 


or to such other address as may have been furnished to Indemnitee by
MAC or to MAC by Indemnitee, as the case may be.


 


18.           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.  This Agreement may also be executed and
delivered by facsimile signature and in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


19.           Headings.  The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


20.           Governing 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 parties 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 Chancery
Court of the State of Delaware (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) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (iv) 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.


 


SIGNATURE
PAGE TO FOLLOW


 

















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.


 


	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  MPM
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


[Indemnity Agreement]