Document

Whereas, the stockholders of the Corporation have adopted bylaws (the “Bylaws”) and the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate”) providing for the indemnification of the directors, officers, employees and other agents of the Corporation, including persons serving at the request of the Corporation in such capacities with other corporations or enterprises, as authorized by the Delaware General Corporation Law, as amended (the “Code”);

(a) Expenses. For purposes of this Agreement, the term “Expenses” will be broadly construed and includes, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’, witness, or other professional fees and related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably incurred by Agent in connection with the investigation, defense or appeal of a Proceeding or establishing or enforcing a right to indemnification under this Agreement, the Code or otherwise, and amounts paid in settlement by or on behalf of Agent; “Expenses” do not include any judgments, fines or penalties actually levied against Agent for such individual’s violations of law.

(b) Change in Control. For purposes of this Agreement, a “Change in Control” will be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Act”)), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation or a corporation owned directly or indirectly by the stockholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Corporation representing more than 20% of the total voting power represented by the Corporation’s then outstanding Voting Securities; or (ii) there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Corporation if, immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Corporation immediately prior thereto do not own, directly or indirectly, either (A) outstanding Voting Securities representing more than 50% of the combined outstanding voting power of the surviving entity in such merger, consolidation or similar transaction or (B) more than 50% of the combined outstanding voting power of the parent of the surviving entity in such merger, consolidation or similar transaction.

(c) Proceeding. For purposes of this Agreement, the term “Proceeding” means, without limitation, any threatened, pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, whether brought in the right of or by the Corporation or otherwise and whether of a civil, criminal, administrative or investigative nature, and whether formal or informal in any case, in which Agent was, is or will be involved as a party or otherwise by reason of the fact that: (i) Agent is or was a director, officer, employee or agent of the Corporation; (ii) Agent took an action while acting as director, officer, employee or agent of the Corporation; or (iii) Agent is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and in any such case described above, whether or not serving in any such capacity at the time any Expense is incurred for which indemnification, reimbursement, or advancement of Expenses may be provided under this Agreement.

2. SERVICES TO THE CORPORATION. Agent will serve, at the will of the Corporation or under separate contract, if any such contract exists, as a director, officer, or employee of the Corporation or as a director, officer or other fiduciary of an affiliate of the Corporation (including, but not limited to, any employee benefit plan of the Corporation) faithfully and to the best of Agent’s ability so long as Agent is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any time and for any reason resign from such position (subject to any contractual obligation that Agent may be subject to apart from this Agreement) and that the Corporation or any affiliate has no obligation under this Agreement to continue Agent in any such position.

3. INDEMNITY OF AGENT. The Corporation hereby agrees to hold harmless and indemnify Agent for any Expenses arising in connection with any Proceeding or other matter to the fullest extent authorized or permitted by the provisions of the Bylaws, the Certificate and the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Bylaws, the Certificate or the Code permitted prior to adoption of such amendment). These obligations and the other obligations of the Corporation in this Agreement apply regardless of whether the conduct giving rise to the obligations occurred before or occur after the date this Agreement is executed.

4. PARTIAL INDEMNIFICATION. Agent is entitled under this Agreement to indemnification by the Corporation for a portion of the Expenses that Agent becomes legally obligated to pay in connection with any Proceeding even if not entitled hereunder to indemnification for the total amount thereof, and the Corporation will indemnify Agent for the portion thereof to which Agent is entitled.

5. NOTIFICATION AND DEFENSE OF CLAIM. Not later than 30 days after receipt by Agent of notice of the commencement of any Proceeding, Agent will, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation of the commencement thereof; but the failure so to notify the Corporation will not relieve the Corporation from any liability which it may have to Agent under this Agreement or otherwise. With respect to any such Proceeding as to which Agent notifies the Corporation of the commencement thereof:

(b) except as otherwise provided below, the Corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent under this Agreement for any Expenses subsequently incurred by Agent in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Agent has the right to employ separate counsel in such Proceeding but the Expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof will be at the expense of Agent; provided, however, that the Expenses of Agent’s separate counsel will be borne by the Corporation if (i) the

employment of counsel by Agent has been authorized by the Corporation, (ii) Agent reasonably has concluded that there may be a conflict of interest between the Corporation and Agent in the conduct of the defense of such Proceeding, or (iii) the Corporation in fact did not employ counsel to assume the defense of such Proceeding or ceased to pursue actively the defense thereof. The Corporation will not be entitled to assume the defense of any Proceeding brought by or on behalf of the Corporation or as to which Agent has made the conclusion provided for in clause (ii) above; and

(c) the Corporation will not be liable to indemnify Agent under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent, which will not be unreasonably withheld or delayed. The Corporation is permitted to settle any Proceeding except that it may not settle any Proceeding in any manner which would impose any penalty or limitation on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole discretion.

6. EXPENSES. Promptly following request by Agent for the advancement of Expenses, the Corporation will advance, prior to the final disposition of any Proceeding, all Expenses incurred by Agent in connection with such Proceeding upon receipt of an undertaking by or on behalf of Agent to repay such amounts if there is a final judicial decision (i.e. no further right of appeal exists) that Agent is not entitled to be indemnified.

7. ENFORCEMENT. Any right to indemnification or advances granted by this Agreement to Agent is enforceable by or on behalf of Agent in any court of competent jurisdiction if (a) the claim for indemnification or advances is denied, in whole or in part, or (b) no disposition of such claim is made within 90 days of request therefor. Agent, in such enforcement action, if successful in whole or in part, also is entitled to be paid the Expense of prosecuting Agent’s claim. Neither the failure of the Corporation (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Agent is proper in the circumstances, nor an actual determination by the Corporation (including its Board of Directors or its stockholders) that such indemnification is improper will be a defense to the action or create a presumption that Agent is not entitled to indemnification under this Agreement or otherwise.

(a) Unless otherwise approved by the Board of Directors at any time prior to a Change in Control, the Corporation will maintain directors’ and officers’ liability insurance (“D&O Insurance”) under which Agent is insured. Notwithstanding any other provision of this Agreement, the Corporation will not be obligated to indemnify the Agent for Expenses which have been previously paid directly to the Agent by D&O Insurance. If the Corporation has D&O Insurance in effect at the time the Corporation receives from Agent any notice of the commencement of a Proceeding, the Corporation shall give prompt notice of the commencement of such Proceeding to the insurer(s) in accordance with the procedures set forth in the policy(ies). The Corporation shall thereafter take all reasonably necessary action to cause such insurers to pay all amounts payable as a result of such Proceeding in accordance with the terms of such policy(ies).

(b) In the event that (i) the Corporation obtains a new D&O Insurance policy for any period following the termination of a prior D&O Insurance policy, and such new D&O Insurance policy does not provide for prior acts coverage, or (ii) the Corporation does not obtain a new D&O Insurance policy following the termination of a prior D&O Insurance policy (in either case, only if Agent is insured under the prior D&O Insurance policy), then, unless otherwise determined by the Board of Directors at any time prior to a Change in Control, the Corporation shall add to the D&O Insurance policy or the applicable successor D&O Insurance policy a run-off endorsement (the “Endorsement”) on the existing D&O Insurance policy or the applicable successor D&O Insurance policy. Unless otherwise approved by the Board of Directors prior to the date on which the Endorsement is obtained, the Endorsement must be non-cancelable and provide for at least a six-year extended coverage period for any and all claims covered under the D&O Insurance policy. The Corporation agrees to pay all premiums, commissions and other costs or charges incurred in obtaining the Endorsement and will promptly deliver to Agent a Certificate of Confirmation of Insurance with respect to such Endorsement.

9. SUBROGATION. In the event of payment under this Agreement, the Corporation will be subrogated to the extent of such payment to all of the rights of recovery of Agent, who agrees to execute all documents required and do all acts that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.

(a) All agreements and obligations of the Corporation contained herein will continue during the period Agent is a director, officer, employee or other agent of the Corporation (or is or was serving at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) and will continue thereafter so long as Agent is subject to any possible Proceeding. The benefits hereunder will inure to the benefit of the heirs, executors and administrators and assigns of Agent. The rights conferred on Agent by this Agreement are not exclusive of any other right Agent may have or hereafter acquire under any statute, provision of the Certificate or Bylaws, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in Agent’s official capacity and as to action in another capacity while holding office.

(b) The obligations and duties of the Corporation to Agent under this Agreement are binding on the Corporation and its successors and assigns until terminated in accordance with its terms. The Corporation shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to the Corporation or to all or substantially all of the business or assets of the Corporation, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.

(c) No amendment, alteration or repeal of this Agreement or of any provision hereof limits or restricts any right of Agent under this Agreement in respect of any action taken or omitted by Agent prior to such amendment, alteration or repeal. To the extent that a change in the Code, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Certificate, Bylaws and this Agreement, it is the intent of the parties hereto that Agent 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 is 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, by Agent will not prevent the concurrent assertion or employment of any other right or remedy by Agent.

11. SEVERABILITY. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof is held to be invalid for any reason, such invalidity contained herein or unenforceability will not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement is invalidated in its entirety on any ground, then the Corporation nevertheless will indemnify Agent to the fullest extent provided by the Certificate, Bylaws, the Code or any other applicable law.

13. AMENDMENT, MODIFICATION, WAIVER AND TERMINATION. No amendment, modification, termination or cancellation of this Agreement will be effective unless signed in writing by both parties hereto. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision hereof (whether or not similar) nor will such waiver constitute a continuing waiver.

14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that

18. NOTICES. All notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been duly given (i) upon delivery if delivered by hand or email (receipt confirmed) to the party to whom such communication was directed or (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid:


						EXHIBIT 10.5