a5915319-ex1033.htm


    Exhibit
10.33

    


    ARIAD
PHARMACEUTICALS, INC.

    


    INDEMNITY
AGREEMENT

    


    THIS INDEMNITY AGREEMENT (this
“Agreement”) is made as of [DATE], by and
between ARIAD Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
[NAME]
(“Indemnitee”).

    


    RECITALS

    


    WHEREAS, highly competent
persons have become more reluctant to serve publicly-held corporations as
directors or in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation.

    


    WHEREAS, the Board of
Directors of the Company (the “Board”) has determined that, in order to attract
and retain qualified individuals, the Company will attempt to maintain on an
ongoing basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities. Although the
furnishing of such insurance has been a customary and widespread practice among
U.S.-based corporations and other business enterprises, the Company believes
that, given current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more exclusions.
At the same time, directors, officers and other persons in service to
corporations or business enterprises are being increasingly subjected to
expensive and time-consuming litigation relating to, among other things, matters
that traditionally would have been brought only against the Company or business
enterprise itself. The Restated Certificate of Incorporation (the “Charter”) and
Amended and Restated Bylaws (the “Bylaws”) of the Company require
indemnification of the officers and directors of the Company. Indemnitee may
also be entitled to indemnification pursuant to applicable provisions of the
Delaware General Corporation Law (“DGCL”). The Charter, the Bylaws 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
the Company and members of the board of directors, officers and other persons in
order to protect such persons against claims and expenses arising from their
services on behalf of the Company.

    


    WHEREAS, the uncertainties
relating to such insurance and to indemnification have increased the difficulty
of attracting and retaining such persons.

    


    WHEREAS, the Board has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future.

    


    WHEREAS, it is reasonable,
prudent and necessary for the Company contractually to obligate itself to
indemnify, hold harmless, exonerate and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be so protected against liabilities.

    


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

    


    WHEREAS, Indemnitee does not
regard the protection available under the Charter, Bylaws and liability
insurance as adequate in the present circumstances, and may not be willing to
serve as an officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity.

    


    NOW, THEREFORE, in
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    TERMS AND
CONDITIONS

    


    1. SERVICES TO THE
COMPANY.  Indemnitee will agree to serve or to continue to
serve as an officer or director of the Company for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his
resignation.  Nothing contained in this Agreement shall be construed
as giving Indemnitee any right to be retained in the employ of the Company or
any of its subsidiaries or affiliated entities.

    


    2. DEFINITIONS.  As
used in this Agreement:

    


    (a)
References to “agent” shall mean any individual who is or was a director,
officer, or employee of the Company or a Subsidiary of the Company or other
individual authorized by the Company to act for the Company, to include such
individual serving in such capacity as a director, officer, employee, fiduciary
or other official of another corporation, partnership, limited liability
company, joint venture, trust or other Enterprise at the request of, for the
convenience of, or to represent the interests of the Company or a Subsidiary of
the Company.

    


    (b) The
terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set
forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in
effect on the date hereof.

    


    (c) A
“Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:

    


    (i)
Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined voting power of the
Company’s then outstanding securities entitled to vote generally in the election
of directors, unless (1) the change in the relative Beneficial Ownership of the
Company’s securities by any Person results solely from a reduction in the
aggregate number of outstanding shares of securities entitled to vote generally
in the election of directors, or (2) such acquisition was approved in advance by
the Continuing Directors (as defined below) and such acquisition would not
constitute a Change in Control under part (iii) of this definition;

    


    (ii)
Change in Board of Directors. Individuals who, as of the date hereof, constitute
the Board, and any new director whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least two
thirds of the directors then still in office who were directors on the date
hereof or whose nomination for election was previously so approved
(collectively, the “Continuing Directors”), cease for any reason to constitute
at least a majority of the members of the Board;

    


    (iii)
Corporate Transactions. The effective date of a reorganization, merger or
consolidation of the Company (a “Business Combination”), in each case, unless,
immediately following such Business Combination: (1) all or substantially all of
the Persons who were the Beneficial Owners of securities entitled to vote
generally in the election of directors immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 51% of the
combined voting power of the then outstanding securities of the Company entitled
to vote generally in the election of directors resulting from such Business
Combination (including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more Subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination, of the securities entitled to vote generally in the election of
directors; (2) no Person (excluding any corporation resulting from such Business
Combination) is the Beneficial Owner, directly or indirectly, of 15% or more of
the combined voting power of the then outstanding securities entitled to vote
generally in the election of directors of such corporation except to the extent
that such ownership existed prior to such Business Combination; and (3) at least
a majority of the Board of Directors of the corporation resulting from such
Business Combination were Continuing Directors at the time of the execution of
the initial agreement, or of the action of the Board of Directors, providing for
such Business Combination;

    


    (iv)
Liquidation. The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements for the sale
or disposition by the Company of all or substantially all of the Company’s
assets (or, if such approval is not required, the decision by the Board to
proceed with such a liquidation, sale, or disposition in one transaction or a
series of related transactions); or

     

    
      
         

      

      
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    (v) Other
Events. There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act, whether or not the Company is then subject to such reporting
requirement.

    


    (d)
“Corporate Status” describes the status of an individual who is or was a
director, officer, trustee, general partner, managing member, fiduciary,
employee or agent of the Company or of any other Enterprise that such individual
is or was serving at the request of the Company.

    


    (e)
“Delaware Court” shall mean the Court of Chancery of the State of
Delaware.

    


    (f)
“Disinterested Director” shall mean a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification is sought by
Indemnitee.

    


    (g)
“Enterprise” shall mean the Company and any other corporation, constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger to which the Company (or any of its wholly owned
subsidiaries) is a party, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or

    agent.

    


    (h)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.

    


    (i)
“Expenses” shall include all direct and indirect costs, fees and expenses of any
type or nature whatsoever, including, without limitation, all attorneys’ fees
and costs, retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, fees of private investigators and professional advisors,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, fax transmission charges, secretarial services and all
other disbursements, obligations or expenses in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, settlement or appeal of, or otherwise participating in, a
Proceeding, including, without limitation, reasonable compensation for time
spent by the Indemnitee for which he or she is not otherwise compensated by the
Company or any third party.  Expenses also shall include Expenses
incurred in connection with any appeal resulting from any Proceeding, including
without limitation the principal, premium, security for, and other costs
relating to any cost bond, supersedeas 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.

    


    (j)
“Independent Counsel” shall mean a law firm or a member of a law firm with
significant experience in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements); or (ii) any other party
to the Proceeding (as defined below) 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 the Company or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.

    


    (k)
References to “fines” shall include any excise tax assessed on Indemnitee with
respect to any employee benefit plan; references to “serving at the request of
the Company” shall include any service as a director, officer, employee, agent
or fiduciary of the Company which imposes duties on, or involves services by,
such director, officer, employee, agent or fiduciary with respect to an employee
benefit plan, its participants or beneficiaries; and if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan, Indemnitee
shall be deemed to have acted in a manner “not opposed to the best interests of
the Company” as referred to in this Agreement.

     

    
      
         

      

      
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    (l) The
term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of
the Exchange Act as in effect on the date hereof; provided, however, that
“Person” shall exclude: (i) the Company; (ii) any Subsidiary of the Company;
(iii) any employment benefit plan of the Company or of a Subsidiary or of any
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company;
and (iv) any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of a Subsidiary or of a corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.

    


    (m) A
“Potential Change in Control” shall be deemed to have occurred if: (i) the
Company enters into an agreement or arrangement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any Person or the Company
publicly announces an intention to take or consider taking actions which if
consummated would constitute a Change in Control; (iii) any Person who is or
becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing five percent (5%) or more of the combined voting power of
the Company’s then outstanding securities entitled to vote generally in the
election of directors increases his Beneficial Ownership of such securities by
five percent (5%) or more over the percentage so owned by such Person on the
date hereof unless such acquisition was approved in advance by the Board; or
(iv) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.

    


    (n) The
term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, mediation, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil (including intentional or unintentional tort
claims), criminal, administrative or investigative nature, in which Indemnitee
was, is, will or might be involved as a party or otherwise by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Company,
by reason of any action (or failure to act) taken by him or of any action (or
failure to act) on his part while acting as a director, officer, employee or
agent of the Company, or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of any other Enterprise, in each
case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement, or advancement of
expenses can be provided under this Agreement.

    


    (o) The
term “Subsidiary,” with respect to any Person, shall mean any corporation or
other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by that
Person.

    


    (p) In
connection with any merger or consolidation, references to the “Company” shall
include not only the resulting or surviving company, but also any constituent
company or constituent of a constituent company, which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents.  The intent of this
provision is that a person who is or was a director of such constituent company
after the date hereof or is or was serving at the request of such constituent
company as a director, officer, employee, trustee or agent of another company,
partnership, joint venture, trust, employee benefit plan or other Enterprise
after the date hereof, shall stand in the same position under this Agreement
with respect to the resulting or surviving company as the person would have
under this Agreement with respect to such constituent company if its separate
existence had continued.

    


    3. INDEMNITY IN THIRD-PARTY
PROCEEDINGS.  The Company shall indemnify, hold harmless and
exonerate Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee was, is, or is threatened to be made, a party to or a participant (as
a witness or otherwise) in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this
Section 3, Indemnitee shall be indemnified, held harmless and exonerated against
all Expenses, judgments, liabilities, fines, penalties and amounts paid in
settlement (including, without limitation, all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties and amounts paid in settlement) actually and
reasonably incurred by Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company and, in the case of a criminal Proceeding, had
no reasonable cause to believe that his conduct was unlawful.

     

    
      
         

      

      
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    4. INDEMNITY IN PROCEEDINGS BY OR IN
THE RIGHT OF THE COMPANY.  The Company shall indemnify, hold
harmless and exonerate Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a
participant (as a witness or otherwise) in any Proceeding by or in the right of
the Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified, held harmless and exonerated against all
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification, hold harmless
or exoneration for Expenses shall be made under this Section 4 in respect of any
claim, issue or matter as to which Indemnitee shall have been finally adjudged
by a court to be liable to the Company, unless and only to the extent that any
court in which the Proceeding was brought or the Delaware Court shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification, to be held harmless or to exoneration.

    


    5. INDEMNIFICATION FOR EXPENSES OF A
PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.  Notwithstanding any
other provisions of this Agreement, to the extent that Indemnitee is a party to
(or a participant in) and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in whole or in
part, the Company shall indemnify, hold harmless and exonerate Indemnitee
against all Expenses actually and reasonably incurred by him 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, the Company shall indemnify, hold
harmless and exonerate Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. If the Indemnitee is not wholly successful in such
Proceeding, the Company also shall indemnify, hold harmless and exonerate
Indemnitee against all Expenses reasonably incurred in connection with a claim,
issue or matter related to any claim, issue, or matter on which the Indemnitee
was successful. 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.

    


    6. 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 in any Proceeding to which Indemnitee is not a party, he or she shall
be indemnified, held harmless and exonerated against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith.

    


    7. ADDITIONAL INDEMNIFICATION, AND
EXONERATION RIGHTS.

    


    (a)
Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall
indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or
threatened to be made a party to 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, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with
or in respect of such Expenses, judgments, fines, penalties and amounts paid in
settlement) actually and reasonably incurred by Indemnitee in connection with
the Proceeding. No indemnification, hold harmless or exoneration rights shall be
available under this Section 7(a) on account of Indemnitee’s conduct which
constitutes a breach of Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the law.

    


    (b)
Notwithstanding any limitation in Sections 3, 4, 5 or 7(a), the Company shall
indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or
threatened to be made a party to 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, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with
or in respect of such Expenses, judgments, fines, penalties and amounts paid in
settlement) actually and reasonably incurred by Indemnitee in connection with
the Proceeding.

    


    
      
         

      

      
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    8. CONTRIBUTION IN THE EVENT OF JOINT
LIABILITY.

    


    (a) To the
fullest extent permissible under applicable law, if the indemnification, hold
harmless and/or exoneration rights provided for in this Agreement are
unavailable to Indemnitee in whole or in part for any reason whatsoever, the
Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee,
shall pay, in the first instance, the entire amount incurred by Indemnitee,
whether for judgments, liabilities, fines, penalties, amounts paid or to be paid
in settlement and/or for Expenses, in connection with any Proceeding without
requiring Indemnitee to contribute to such payment, and the Company hereby
waives and relinquishes any right of contribution it may have at any time
against Indemnitee.

    


    (b) The
Company shall not enter into any settlement of any Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such
Proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.

    


    (c) The
Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee
from any claims for contribution which may be brought by officers, directors or
employees of the Company other than Indemnitee who may be jointly liable with
Indemnitee.

    


    9.
EXCLUSIONS.  Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any
indemnification, hold harmless or exoneration payment:

    


    (a) in
connection with any claim made against Indemnitee for which payment has actually
been received by or on behalf of Indemnitee under any insurance policy or other
indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement, other
indemnity provision or otherwise;

    


    (b) in
connection with any claim made against Indemnitee for an accounting of profits
made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company within the meaning of Section 16(b) of the Exchange
Act or similar provisions of state statutory law or common law; or

    


    (c) except
as otherwise provided in Sections 14(e)-(f) hereof, prior to a Change in
Control, 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 the Company or its directors,
officers, employees or other indemnitees, unless (i) the Board authorized the
Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such
payment arises in connection with any mandatory counterclaim or cross-claim that
the Indemnitee asserts against the Company or its directors, officers, employees
or other indemnitees or any affirmative defense Indemnitee raises, or (iii) the
Company provides the indemnification, hold harmless or exoneration payment, in
its sole discretion, pursuant to the powers vested in the Company under
applicable law.

     

     

     

     

     

    
 

    
      
         

      

      
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    10. ADVANCES OF EXPENSES; DEFENSE OF
CLAIM.

    


    (a)
Notwithstanding any provision of this Agreement to the contrary, and to the
fullest extent permitted by applicable law, the Company shall advance the
Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be
incurred by Indemnitee within three months) in connection with any Proceeding
within ten (10) days after the receipt by the Company of a statement or
statements requesting such advances from time to time, whether prior to or after
final disposition of any Proceeding. Advances shall be unsecured and interest
free. Advances shall be made without regard to Indemnitee’s ability to repay the
Expenses and without regard to Indemnitee’s ultimate entitlement to be
indemnified, held harmless or exonerated under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing a Proceeding to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. The Indemnitee shall qualify for advances, to the fullest
extent permitted by applicable law, solely upon the execution and delivery to
the Company of an undertaking providing that the Indemnitee undertakes to repay
the advance to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company under the provisions of this
Agreement, the Charter, the Bylaws of the Company, applicable law or otherwise.
This Section 10(a) shall not apply to any claim made by Indemnitee for which an
indemnification, hold harmless or exoneration payment is excluded pursuant to
Section 9.

    


    (b) The
Company will be entitled to participate in the Proceeding at its own
expense.

    


    (c) The
Company shall not settle any action, claim or Proceeding (in whole or in part)
which would impose any Expense, judgment, fine, penalty or limitation on the
Indemnitee without the Indemnitee’s prior written consent.

    


    11. PROCEDURE FOR NOTIFICATION AND
APPLICATION FOR INDEMNIFICATION.

    


    (a)
Indemnitee agrees to notify promptly the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification, hold harmless or exoneration rights, or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to the Indemnitee under
this Agreement, or otherwise.

    


    (b)
Indemnitee may deliver to the Company a written application to indemnify, hold
harmless or exonerate Indemnitee in accordance with this
Agreement.  Such application(s) may be delivered from time to time and
at such time(s) as Indemnitee deems appropriate in Indemnitee’s sole discretion.
Following such a written application for indemnification by Indemnitee, the
Indemnitee’s entitlement to indemnification shall be determined according to
Section 12(a) of this Agreement.

     

    
      
         

      

      
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12. PROCEDURE UPON APPLICATION FOR
INDEMNIFICATION.

    


    (a) A
determination, if required by applicable law, with respect to Indemnitee’s
entitlement to indemnification shall be made in the specific case by one of the
following methods, which shall be at the election of Indemnitee: (i) by a
majority vote of the Disinterested Directors, even though less than a quorum of
the Board or (ii) by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee. The Company promptly will advise
Indemnitee in writing with respect to any determination that Indemnitee is or is
not entitled to indemnification, including, without limitation, a description of
any reason or basis for which indemnification has been denied. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination. Indemnitee shall
reasonably cooperate with the Person or Persons making such determination with
respect to Indemnitee’s entitlement to indemnification, including, without
limitation, providing to such Person or Persons 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 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 the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.

    


    (b) In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel
shall be selected as provided in this Section 12(b). The Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so selected and
certifying that the Independent Counsel so selected meets the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement. If the
Independent Counsel is selected by the Board, the Company shall give written
notice to Indemnitee advising him of the identity of the Independent Counsel so
selected and certifying that the Independent Counsel so selected meets the
requirements of “Independent Counsel” as defined in Section 2 of this Agreement.
In either event, Indemnitee or the Company, as the case may be, may, within ten
(10) days after such written notice of selection shall have been received,
deliver to the Company or to Indemnitee, as the case may be, 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 2 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 such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit. If, within
twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 11(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Delaware Court for resolution of any objection which shall have
been made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the Delaware Court, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
Section 12(a) hereof. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then
prevailing).

    


    (c) The
Company agrees to pay the reasonable fees and expenses of Independent Counsel
and to fully indemnify and hold harmless such Independent Counsel against any
and all Expenses, claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.

    


    (d) If the
Company disputes a portion of the amounts for which indemnification is
requested, the undisputed portion shall be paid and only the disputed portion
withheld pending resolution of any such dispute.

    


    13. PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS.

    


    (a) In
making a determination with respect to entitlement to indemnification hereunder,
the Person or Persons making such determination shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 11(b) of this Agreement,
and the Company shall have the burden of proof to overcome that presumption in
connection with the making by any Person or Persons of any determination
contrary to that presumption. Neither the failure of the Company (including by
its directors or Independent 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 the Company (including by its
directors or Independent 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.

    


    
      
         

      

      
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    (b) If the
Person or Persons empowered or selected under Section 12 of this Agreement to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within thirty (30) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or
(ii) a final judicial determination that any or all such indemnification is
expressly prohibited under applicable law; provided, however, that such 30-day
period may be extended for a reasonable time, not to exceed an additional
fifteen (15) days, if the person, persons or entity making the determination
with respect to entitlement to indemnification in good faith requires such
additional time for the obtaining or evaluating of documentation and/or
information relating thereto.

    


    (c) 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 Indemnitee reasonably believed to be in or 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 conduct was
unlawful.

    


    (d) For
purposes of any determination of good faith, 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, including financial statements, or on information
supplied to Indemnitee by the directors or officers of the Enterprise in the
course of their duties, or on the advice of legal counsel for the Enterprise,
its Board, any committee of the Board or any director, or on information or
records given or reports made to the Enterprise, its Board, any committee of the
Board or any director, by an independent certified public accountant or by an
appraiser or other expert selected by the Enterprise, its Board, any committee
of the Board or any director. The provisions of this Section 13(d) shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed or found to have met the applicable standard of
conduct set forth in this Agreement.

    


    (e) The
knowledge and/or actions, or failure to act, of any other director, officer,
trustee, partner, managing member, fiduciary, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.

    


    14. REMEDIES OF
INDEMNITEE.

    


    (a) In the
event that (i) a determination is made pursuant to Section 12 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses, to the fullest extent permitted by applicable law, is
not timely made pursuant to Section 10 of this Agreement, (iii) no determination
of entitlement to indemnification shall have been made pursuant to Section 12(a)
of this Agreement within thirty (30) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made
pursuant to Section 5, 6, 7 or the last sentence of Section 12(a) of this
Agreement within ten (10) days after receipt by the Company of a written request
therefor, (v) a contribution payment is not made in a timely manner pursuant to
Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section
3 or 4 of this Agreement is not made within ten (10) days after a determination
has been made that Indemnitee is entitled to indemnification, or (vii) payment
to Indemnitee pursuant to any hold harmless or exoneration rights under this
Agreement or otherwise is not made within ten (10) days after receipt by the
Company of a written request therefor, Indemnitee shall be entitled to an
adjudication by the Delaware Court to such indemnification, hold harmless,
exoneration, contribution or advancement rights. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Except as set forth herein, the provisions of Delaware
law (without regard to its conflict of laws rules) shall apply to any such
arbitration. The Company shall not oppose Indemnitee’s right to seek any such
adjudication or award in arbitration.

    


    
      
         

      

      
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    (b) Upon
the occurrence or non-occurrence of any of the events set forth in Section 14(a)
of this Agreement, any judicial proceeding or arbitration commenced pursuant to
this Section 14 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 14, Indemnitee shall be presumed to be entitled to be
indemnified, held harmless, exonerated and to receive advances of Expenses under
this Agreement and the Company shall have the burden of proving Indemnitee is
not entitled to be indemnified, held harmless, exonerated and to receive
advances of Expenses, as the case may be, and the Company may not refer to or
introduce into evidence any determination pursuant to Section 12(a) of this
Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a
judicial proceeding or arbitration pursuant to this Section 14, Indemnitee shall
not be required to reimburse the Company for any advances pursuant to Section 10
until a final determination is made with respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or
lapsed).

    


    (c) If a
determination shall have been made pursuant to Section 12(a) of this Agreement
that Indemnitee is entitled to payment, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 14, 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.

    


    (d) The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 14 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.

    


    (e) The
Company shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by law against all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after the Company’s receipt of such written request) pay
to Indemnitee, to the fullest extent permitted by applicable law, all such
Expenses which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee (i) in connection with, to
enforce his rights under, or to recover damages for breach of, this Agreement or
any other indemnification, hold harmless, exoneration, advancement or
contribution agreement or provision of the Charter or Bylaws now or hereafter in
effect; or (ii) for recovery or advances under any insurance policy maintained
by any person for the benefit of Indemnitee, regardless of the outcome and
whether Indemnitee ultimately is determined to be entitled to such
indemnification, hold harmless or exoneration right, advancement, contribution
or insurance recovery, as the case may be (unless such judicial proceeding or
arbitration was not brought by Indemnitee in good faith).

    


    (f)
Interest shall be paid by the Company to Indemnitee at the legal rate under
Delaware law for amounts which the Company indemnifies, holds harmless or
exonerates, or is obliged to indemnify, hold harmless or exonerate for the
period commencing with the date on which Indemnitee pays such amounts for which
Indemnitee requested indemnification, to be held harmless, exoneration,
contribution, reimbursement or advancement of any Expenses and ending with the
date on which such payment is made to or on behalf of Indemnitee by the
Company.

     

    
      
         

      

      
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    15. ESTABLISHMENT OF
TRUST.  In the event of a Potential Change in Control, the
Company shall, upon written request by Indemnitee, create a “Trust” for the
benefit of Indemnitee and from time to time upon written request of Indemnitee
shall fund such Trust in an amount sufficient to satisfy any and all Expenses
reasonably anticipated at the time of each such request to be incurred in
connection with investigating, preparing for, participating in or defending any
Proceedings, and any and all judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines penalties and
amounts paid in settlement) in connection with any and all Proceedings from time
to time actually paid or claimed, reasonably anticipated or proposed to be paid.
The trustee of the Trust (the “Trustee”) shall be a bank or trust company or
other individual or entity chosen by the Indemnitee and reasonably acceptable to
the Company. Nothing in this Section 15 shall relieve the Company of any of its
obligations under this Agreement. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by mutual
agreement of the Indemnitee and the Company or, if the Company and the
Indemnitee are unable to reach such an agreement, by Independent Counsel
selected in accordance with Section 12(b) of this Agreement. The terms of the
Trust shall provide that, except upon the consent of both the Indemnitee and the
Company, (a) the Trust shall not be revoked or the principal thereof invaded,
without the written consent of the Indemnitee; and (b) upon a Change in Control:
(i) the Trustee shall make advances of Expenses, to the fullest extent permitted
by applicable law, within two (2) business days of a request by the Indemnitee
and upon the execution and delivery to the Company of an undertaking providing
that the Indemnitee undertakes to repay the advance to the extent that it is
ultimately determined that Indemnitee is not entitled to be indemnified, held
harmless or exonerated by the Company; (ii) the Trust shall continue to be
funded by the Company in accordance with the funding obligations set forth
above; (iii) the Trustee shall promptly pay to the Indemnitee all amounts for
which the Indemnitee shall be entitled to indemnification, or to be held
harmless or exonerated pursuant to this Agreement or otherwise; and (iv) all
unexpended funds in such Trust shall revert to the Company upon mutual agreement
by the Indemnitee and the Company or, if the Indemnitee and the Company are
unable to reach such an agreement, by Independent Counsel selected in accordance
with Section 12(b) of this Agreement, that the Indemnitee has been fully
indemnified, held harmless and exonerated under the terms of this Agreement. The
Trust shall be governed by Delaware law (without regard to its conflicts of laws
rules) and the Trustee shall consent to the exclusive jurisdiction of the
Delaware Court in accordance with Section 23 of this Agreement.

     

    16.
SECURITY.  Notwithstanding anything herein to the contrary, to
the extent requested by the Indemnitee and approved by the Board, the Company
may at any time and from time to time provide security to the Indemnitee for the
Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to the
Indemnitee, may not be revoked or released without the prior written consent of
the Indemnitee.

     

    
 

    
      
         

      

      
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    17. NON-EXCLUSIVITY; SURVIVAL OF
RIGHTS; INSURANCE; SUBROGATION.

    


    (a) The
rights of Indemnitee as provided by this Agreement (i) shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Charter, the Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise and (ii) shall be
enforced and this Agreement shall be interpreted independently of and without
reference to or limitation or constraint (whether procedural, substantive or
otherwise) by any other such rights to which Indemnitee may at any time be
entitled. 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 applicable law, whether by statute or judicial decision,
permits greater indemnification, hold harmless or exoneration rights or
advancement of Expenses than would be afforded currently under the Charter, the
Bylaws or 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.
To the extent that a change in Delaware law, whether by statute or judicial
decision, narrows or limits indemnification or advancement of Expenses that are
afforded currently under the Charter, the Bylaws or this Agreement, it is the
intent of the parties hereto that such change, except to the extent required by
applicable law, shall have no effect on this Agreement or the parties’ rights
and obligations hereunder.  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) The
DGCL, the Charter and the Company’s Bylaws permit the Company to purchase and
maintain insurance or furnish similar protection or make other arrangements
including, but not limited to, providing a trust fund, letter of credit, or
surety bond (“Indemnification Arrangements”) on behalf of Indemnitee against any
liability asserted against him or incurred by or on behalf of him or in such
capacity as a director, officer, employee or agent of the Company, or arising
out of his status as such, whether or not the Company would have the power to
indemnify him against such liability under the provisions of this Agreement or
under the DGCL, as it may then be in effect. The purchase, establishment, and
maintenance of any such Indemnification Arrangement shall not in any way limit
or affect the rights and obligations of the Company or of the Indemnitee under
this Agreement except as expressly provided herein, and the execution and
delivery of this Agreement by the Company and the Indemnitee shall not in any
way limit or affect the rights and obligations of the Company or the other party
or parties thereto under any such Indemnification Arrangement.

    


    (c) The
Company shall maintain directors’ and officers’ insurance programs providing
coverage to Indemnitee for Expenses during the time period Indemnitee serves the
Company in a Corporate Status, and for a period of no less than six (6) years
following the conclusion of such service.  If, at the time the Company
receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director and
officer liability insurance in effect, the Company shall give prompt notice of
such Proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies.

    


    (d) In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.

    


    (e) The
Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification, hold harmless or exoneration payments or
advancement of expenses from such Enterprise.  Notwithstanding any
other provision of this Agreement to the contrary, (i) Indemnitee shall have no
obligation to reduce, offset, allocate, pursue or apportion any indemnification,
hold harmless, exoneration, advancement, contribution or insurance coverage
among multiple parties possessing such duties to Indemnitee prior to the
Company’s satisfaction and performance of all its obligations under this
Agreement, and (ii) the Company shall perform fully its obligations under this
Agreement without regard to whether Indemnitee holds, may pursue or has pursued
any indemnification, advancement, hold harmless, exoneration, contribution or
insurance coverage rights against any person or entity other than the
Company.

     

    
      
         

      

      
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    18. DURATION OF
AGREEMENT.  All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee serves as a
director or officer of the Company or as a director, officer, trustee, partner,
managing member, fiduciary, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other Enterprise
which Indemnitee serves at the request of the Company and shall continue
thereafter so long as Indemnitee may be subject to any possible Proceeding
(including any rights of appeal thereto and any Proceeding commenced by
Indemnitee pursuant to Section 14 of this Agreement) by reason of his Corporate
Status, whether or not Indemnitee is acting in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under
this Agreement.

    


    19.
SEVERABILITY.  If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, each portion of any Section,
paragraph or sentence of this Agreement containing any such provision held 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 fullest extent permitted by law; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section, paragraph or
sentence of this Agreement containing any such provision held 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.

    


    20. ENFORCEMENT AND BINDING
EFFECT.

    


    (a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to encourage
Indemnitee to serve and/or continue to serve as a director, officer or key
employee of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer or key employee of the
Company.

    


    (b)
Without limiting any of the rights of Indemnitee under the Charter or Bylaws of
the Company as they may be amended from time to time, and except as provided in
Section 17(a), 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.

    


    (c) The
rights to be indemnified and to receive contribution and advancement of Expenses
provided by or granted Indemnitee pursuant to this Agreement shall apply to
Indemnitee’s service as an officer, director, employee or agent of the Company
prior to the date of this Agreement, as well as service on or after the date of
this Agreement.

    


    (d) The
indemnification, hold harmless, exoneration and advancement of expenses rights
provided by or granted pursuant to this Agreement shall be binding upon and be
enforceable by the parties hereto and their respective successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company), shall continue as to an Indemnitee who has ceased to be a director,
officer, employee or agent of the Company or of any other Enterprise, and shall
inure to the benefit of Indemnitee and his or her spouse, assigns, estate,
heirs, devisees, executors and administrators and other legal
representatives.

    


    (e) The
Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of the Company, by written
agreement in form and substance satisfactory to the Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place.

     

    
      
         

      

      
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    (f) The
Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of
proof, and further agree that such breach may cause Indemnitee irreparable harm.
Accordingly, the parties hereto agree that Indemnitee may enforce this Agreement
by seeking, among other things, injunctive relief and/or specific performance
hereof, without any necessity of showing actual damage or irreparable harm and
that by seeking injunctive relief and/or specific performance, Indemnitee shall
not be precluded from seeking or obtaining any other relief to which Indemnitee
may be entitled. The Company and Indemnitee further agree that Indemnitee shall
be entitled to such specific performance and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions,
without the necessity of posting bonds or other undertaking in connection
therewith. The Company acknowledges that in the absence of a waiver, a bond or
undertaking may be required of Indemnitee by the Court, and the Company hereby
waives any such requirement of such a bond or undertaking.

    


    21. MODIFICATION AND
WAIVER.  No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by 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 of this Agreement nor shall any
waiver constitute a continuing waiver.

    


    22. NOTICES.  All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (i) if delivered by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, or (ii) mailed by certified or registered mail with
postage prepaid, on the third (3rd) business day after the date on which it is
so mailed:

    


    (a) If to
Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the
Company.

    


    (b) If to
the Company, to:

    


    ARIAD
Pharmaceuticals, Inc.

    Attention:
Chief Executive Officer

    26
Landsdowne St.

    Cambridge,
Massachusetts 02139

    


    With a
copy to the Company’s outside counsel:

    


    Mintz,
Levn, Cohn, Ferris, Glovsky and Popeo, PC

    Attention:
Jeffrey Wiesen, Esq.

    One
Financial Center

    Boston,
Massachusetts 02111

    


    or to any
other address as may have been furnished to Indemnitee in writing by the
Company.

    


    


    23. APPLICABLE LAW AND CONSENT TO
JURISDICTION.  This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware, without regard to its conflict of laws rules.
Except with respect to any arbitration commenced by Indemnitee pursuant to
Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably
and unconditionally: (a) agree that any action or proceeding arising out of or
in connection with this Agreement shall be brought only in the Delaware Court
and not in any other state or federal court in the United States of America or
any court in any other country; (b) 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; (c) appoint irrevocably, to
the extent such party is not a resident of the State of Delaware, Abrams &
Laster LLP, 20 Montchanin Road, Suite 200, Wilmington, Delaware 19807 as such
party’s agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity as if
served upon such party personally within the State of Delaware; (d) waive any
objection to the laying of venue of any such action or proceeding in the
Delaware Court; and (e) 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, or is subject (in whole or in part) to a jury
trial.

    


    
      
         

      

      
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    24. IDENTICAL
COUNTERPARTS.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.

    


    25.
MISCELLANEOUS.  Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate. 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.

    


    26. PERIOD OF
LIMITATIONS.  No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal representatives after
the expiration of two years from the date of accrual of such cause of action,
and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.

    


    27.  ADDITIONAL
ACTS.  If for the validation of any of the provisions in this
Agreement any act, resolution, approval or other procedure is required, the
Company undertakes to cause such act, resolution, approval or other procedure to
be affected or adopted in a manner that will enable the Company to fulfill its
obligations under this Agreement.

    


    


    


    


    


    


    


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    IN WITNESS WHEREOF, the
parties hereto have caused this Indemnity Agreement to be signed as of the day
and year first above written.

    


    


    
      
        
          	
                  ARIAD
      PHARMACEUTICALS, INC.

                   

                   

                  ______________________________

                  Name:

                  Title:

                	
                  INDEMNITEE

                   

                   

                  ______________________________

                  Name:

                  Title:

                


        

      

    

     

     

     

     

     

     

     

     

     

     

     

     

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