INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), made and entered into as
of the 1st day of September, 1997 by and between Syntroleum Corporation, an
Oklahoma corporation (the "Corporation"), and __________________________________
("Indemnitee"),
W I T N E S S E T H:
WHEREAS, Indemnitee is currently serving or is about to begin serving as a
director and/or officer of the Corporation and/or in another Corporate Status,
and Indemnitee is willing, subject to, among other things, the Corporation's
execution and performance of this Agreement, to continue in or assume such
capacity or capacities; and
WHEREAS, the Bylaws of the Corporation provide that the Corporation shall
indemnify directors and officers of the Corporation in the manner set forth
therein; and
WHEREAS, in order to induce Indemnitee to provide services as contemplated
hereby, the Corporation has deemed it to be in its best interest to enter into
this Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's agreement to provide
services to the Corporation and/or certain of its affiliates as contemplated by
this Agreement, the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1. CERTAIN DEFINITIONS
As used herein, the following words and terms shall have the following
respective meanings (whether singular or plural):
"CHANGE OF CONTROL" means a change in control of the Corporation after both
the date of the closing of the initial public offering (the "IPO") of the
Corporation's Common Stock to the public for cash that has been registered on a
registration statement that has been filed with and declared effective by the
Securities and Exchange Commission and after the date Indemnitee acquired his
Corporate Status, which shall be deemed to have occurred in any one of the
following circumstances occurring after such date: (i) there shall have occurred
an event required to be reported with respect to the Corporation in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item
or any similar schedule or form) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), whether or not the Corporation is then
subject to such reporting requirement; (ii) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act) shall have become the
"beneficial owner" (as
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defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 40% or more of the combined voting
power of the Corporation's then outstanding voting securities without prior
approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person attaining such percentage interest;
(iii) the Corporation is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of which members of
the Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or
(iv) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (including, for this
purpose, any new director whose election or nomination for election by the
Corporation's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
"CORPORATE STATUS" describes the status of Indemnitee as a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was
serving at the request of the Corporation.
"COURT" means the District Court of Tulsa County of the State of Oklahoma
or any other court of competent jurisdiction.
"OGCA" means the Oklahoma General Corporation Act, as amended from time to
time.
"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, or being or preparing to be a witness in a
Proceeding.
"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
five years previous to his selection or appointment has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material to either
such party or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder.
"MATTER" is a claim, a material issue or a substantial request for relief.
"PROCEEDING" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by Indemnitee pursuant to SECTION 6.01 of this Agreement to enforce
his rights under this Agreement.
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2. SERVICES BY INDEMNITEE
2.01 SERVICES BY INDEMNITEE. Indemnitee agrees to serve or continue to serve
in his current capacity or capacities as a director, officer, employee,
agent or fiduciary of the Corporation. Indemnitee also agrees to serve,
as the Corporation may request from time to time, as a director,
officer, employee, agent or fiduciary of any other corporation,
partnership, limited liability company, association, joint venture,
trust or other enterprise in which the Corporation has an interest.
Indemnitee and the Corporation each acknowledge that they have entered
into this Agreement as a means of inducing Indemnitee to serve the
Corporation in such capacities.
2.02 TERMINATION OF SERVICES. Indemnitee may at any time and for any reason
resign from such position or positions (subject to any other contractual
obligation or any obligation imposed by operation of law). The
Corporation shall have no obligation under this Agreement to continue
Indemnitee in any such position for any period of time and shall not be
precluded by the provisions of this Agreement from removing or
terminating Indemnitee from any such position at any time.
3. INDEMNIFICATION
3.01 GENERAL. The Corporation shall, to the fullest extent permitted by
applicable law in effect on the date hereof, and to such greater extent
as applicable law may thereafter permit, indemnify and hold Indemnitee
harmless from and against any and all losses, liabilities, claims,
damages and, subject to SECTION 3.02, Expenses (as this and all other
capitalized words are defined in ARTICLE 1. of this Agreement),
whatsoever arising out of any event or occurrence related to the fact
that Indemnitee is or was a director or officer of the Corporation or is
or was serving in another Corporate Status.
3.02 EXPENSES. If 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 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 any Matter in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf relating to such Matter.
The termination of any Matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such
Matter. To the extent that the Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith.
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4. ADVANCEMENT OF EXPENSES
4.01 ADVANCES. In the event of any threatened or pending action, suit or
proceeding in which Indemnitee is a party or is involved and that may
give rise to a right of indemnification under this Agreement, following
written request to the Corporation by Indemnitee, the Corporation shall
promptly pay to Indemnitee amounts to cover expenses reasonably incurred
by Indemnitee in such proceeding in advance of its final disposition
upon the receipt by the Corporation of (i) a written undertaking
executed by or on behalf of Indemnitee providing that Indemnitee will
repay the advance if it shall ultimately be determined that Indemnitee
is not entitled to be indemnified by the Corporation as provided in this
Agreement and (ii) satisfactory evidence as to the amount of such
expenses.
4.02 REPAYMENT OF ADVANCES OR OTHER EXPENSES. Indemnitee agrees that
Indemnitee shall reimburse the Corporation for all expenses paid by the
Corporation in defending any civil, criminal, administrative or
investigative action, suit or proceeding against Indemnitee in the event
and only to the extent that it shall be determined pursuant to the
provisions of this Agreement or by final judgment or other final
adjudication under the provisions of any applicable law that Indemnitee
is not entitled to be indemnified by the Corporation for such expenses.
5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
5.01 REQUEST FOR INDEMNIFICATION. To obtain indemnification, Indemnitee
shall submit to the Secretary of the Corporation a written claim or
request. Such written claim or request shall contain sufficient
information to reasonably inform the Corporation about the nature and
extent of the indemnification or advance sought by Indemnitee. The
Secretary of the Corporation shall promptly advise the Board of
Directors of such request.
5.02 DETERMINATION OF ENTITLEMENT; NO CHANGE OF CONTROL. If there has been
no Change of Control at the time the request for indemnification is
submitted, Indemnitee's entitlement to indemnification shall be
determined in accordance with Section 1031 D of the OGCA. If
entitlement to indemnification is to be determined by Independent
Counsel, the Corporation shall furnish notice to Indemnitee within
10 days after receipt of the request for indemnification, specifying the
identity and address of Independent Counsel. The Indemnitee may, within
14 days after receipt of such written notice of selection, deliver to
the Corporation a written objection to such selection. Such objection
may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of Independent Counsel and the
objection shall set forth with particularity the factual basis for such
assertion. If there is an objection to the selection of Independent
Counsel, either the Corporation or Indemnitee may petition the Court for
a determination that the objection is without a reasonable basis and/or
for the appointment of Independent Counsel selected by the Court.
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5.03 DETERMINATION OF ENTITLEMENT; CHANGE OF CONTROL. If there has been a
Change of Control at the time the request for indemnification is
submitted, Indemnitee's entitlement to indemnification shall be
determined in a written opinion by Independent Counsel selected by
Indemnitee. Indemnitee shall give the Corporation written notice
advising of the identity and address of the Independent Counsel so
selected. The Corporation may, within seven days after receipt of such
written notice of selection, deliver to the Indemnitee a written
objection to such selection. Indemnitee may, within five days after the
receipt of such objection from the Corporation, submit the name of
another Independent Counsel and the Corporation may, within seven days
after receipt of such written notice of selection, deliver to the
Indemnitee a written objection to such selection. Any objections
referred to in this SECTION 5.03 may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of
Independent Counsel and such objection shall set forth with
particularity the factual basis for such assertion. Indemnitee may
petition the Court for a determination that the Corporation's objection
to the first and/or second selection of Independent Counsel is without a
reasonable basis and/or for the appointment as Independent Counsel of a
person selected by the Court.
5.04 PROCEDURES OF INDEPENDENT COUNSEL. If a Change of Control shall have
occurred before the request for indemnification is sent by Indemnitee,
Indemnitee shall be presumed (except as otherwise expressly provided in
this Agreement) to be entitled to indemnification upon submission of a
request for indemnification in accordance with SECTION 5.01 of this
Agreement, and thereafter the Corporation shall have the burden of proof
to overcome the presumption in reaching a determination contrary to the
presumption. The presumption shall be used by Independent Counsel as a
basis for a determination of entitlement to indemnification unless the
Corporation provides information sufficient to overcome such presumption
by clear and convincing evidence or the investigation, review and
analysis of Independent Counsel convinces him by clear and convincing
evidence that the presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or
persons empowered under SECTION 5.02 or 5.03 of this Agreement to
determine entitlement to indemnification shall not have made and
furnished to Indemnitee in writing a determination within 60 days after
receipt by the Corporation 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
unless Indemnitee knowingly misrepresented a material fact in connection
with the request for indemnification or such indemnification is
prohibited by applicable law. The termination of any Proceeding or of
any 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
that he reasonably believed to be in or not opposed to the best
interests of the Corporation, or with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was
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unlawful. A person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan of the Corporation shall be deemed to have
acted in a manner not opposed to the best interests of the Corporation.
For purposes of any determination hereunder, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or Proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is based on the
records or books of account of the Corporation or another enterprise or
on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties or on the advice of
legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or
another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term "another enterprise" as
used in this Section shall mean any other corporation or any
partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise of which such person is
or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this paragraph shall not be deemed
to be exclusive or to limit in any way the circumstances in which an
Indemnitee may be deemed to have met the applicable standards of conduct
for determining entitlement to rights under this Agreement.
5.05 INDEPENDENT COUNSEL EXPENSES. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting
pursuant to this ARTICLE 5. and in any proceeding to which it is a party
or witness in respect of its investigation and written report and shall
pay all reasonable fees and expenses incident to the procedures in which
such Independent Counsel was selected or appointed. No Independent
Counsel may serve if a timely objection has been made to his selection
until a Court has determined that such objection is without a reasonable
basis.
6. CERTAIN REMEDIES OF INDEMNITEE
6.01 ADJUDICATION. In the event that (i) a determination is made pursuant to
SECTION 5.02 or 5.03 hereof that Indemnitee is not entitled to
indemnification under this Agreement; (ii) advancement of Expenses is
not timely made pursuant to SECTION 4.01 of this Agreement;
(iii) Independent Counsel has not made and delivered a written opinion
determining the request for indemnification (a) within 90 days after
being appointed by the Court, or (b) within 90 days after objections to
his selection have been overruled by the Court or (c) within 90 days
after the time for the Corporation or Indemnitee to object to his
selection; or (iv) payment of indemnification is not made within five
days after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to SECTION 5.02, 5.03 or 5.04
of this Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Oklahoma, or in any
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other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a
determination shall have been made that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this SECTION 6.01 shall be conducted in all respects as a DE
NOVO trial on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination. If a Change of Control shall have
occurred, in any judicial proceeding commenced pursuant to this
SECTION 6.01, the Corporation shall have the burden of proving that
Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be. If a determination shall have been made
or deemed to have been made that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in
any judicial proceeding commenced pursuant to this SECTION 6.01, or
otherwise, unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification, or such indemnification
is prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this SECTION 6.01 that the procedures
and presumptions of this Agreement are not valid, binding and
enforceable, and shall stipulate in any such proceeding that the
Corporation is bound by all provisions of this Agreement. In the event
that Indemnitee, pursuant to this SECTION 6.01, seeks a judicial
adjudication to enforce his rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against,
any and all Expenses actually and reasonably incurred by him in such
judicial adjudication, but only if he prevails therein. If it shall be
determined in such judicial adjudication that Indemnitee is entitled to
receive part but not all of the indemnification or advancement of
Expenses sought, the Expenses incurred by Indemnitee in connection with
such judicial adjudication or arbitration shall be appropriately
prorated.
7. PARTICIPATION BY THE CORPORATION
7.01 PARTICIPATION BY THE CORPORATION. With respect to any such claim,
action, suit, proceeding or investigation as to which Indemnitee
notifies the Corporation of the commencement thereof: (a) the
Corporation will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, to the extent that it may wish,
the Corporation (jointly with any other indemnifying party similarly
notified) will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After receipt of notice from the
Corporation to Indemnitee of the Corporation's election so to assume the
defense thereof, the Corporation will not be liable to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to employ his own counsel in such action, suit,
proceeding or investigation but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the
Corporation, (ii) Indemnitee shall have reasonably concluded that
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there is a conflict of interest between the Corporation and Indemnitee
in the conduct of the defense of such action or (iii) the Corporation
shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel employed
by Indemnitee shall be subject to indemnification pursuant to the terms
of this Agreement (the Corporation shall not be entitled to assume the
defense of any action, suit, proceeding or investigation brought in the
name of or on behalf of the Corporation or as to which Indemnitee shall
have made the conclusion provided for in (ii) above); and (c) the
Corporation shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent, which consent shall not be
unreasonably withheld. The Corporation shall not settle any action or
claim in any manner that would impose any limitation or unindemnified
penalty on Indemnitee without Indemnitee's written consent, which
consent shall not be unreasonably withheld.
8. MISCELLANEOUS
8.01 NONEXCLUSIVITY OF RIGHTS. The rights of indemnification and advancement
of Expenses as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled to
under applicable law, the Corporation's Certificate of Incorporation,
the Corporation's Bylaws, any agreement, a vote of shareholders or a
resolution of directors, or otherwise. No amendment, alteration or
repeal of this Agreement or any provision hereof shall be effective as
to Indemnitee for acts, events and circumstances that occurred, in whole
or in part, before such amendment, alteration or repeal. The provisions
of this Agreement shall continue as to Indemnitee whose Corporate Status
has ceased for any reason and shall inure to the benefit of his heirs,
executors and administrators.
8.02 INSURANCE AND SUBROGATION. The Corporation shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if, but only to the extent that, Indemnitee has otherwise
actually received such payment under any insurance policy, contract,
agreement or otherwise. In the event of any payment hereunder, the
Corporation shall be subrogated to the extent of such payment to all the
rights of recovery of Indemnitee, who shall execute all papers required
and take all action reasonably requested by the Corporation to secure
such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
8.03 ACKNOWLEDGMENT OF CERTAIN MATTERS. Both the Corporation and Indemnitee
acknowledge that in certain instances, applicable law or public policy
may prohibit indemnification of Indemnitee by the Corporation under this
Agreement or otherwise. Indemnitee understands and acknowledges that
the Corporation has undertaken or may be required in the future to
undertake, by the Securities and Exchange Commission, to submit the
question of indemnification to a court in certain circumstances for a
determination of the Corporation's right under public policy to
indemnify Indemnitee.
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8.04 AMENDMENT. This Agreement may not be modified or amended except by a
written instrument executed by or on behalf of each of the parties
hereto.
8.05 WAIVERS. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively) by the party entitled to enforce such term only by a
writing signed by the party against which such waiver is to be asserted.
Unless otherwise expressly provided herein, no delay on the part of any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any
party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder.
8.06 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto with respect
to the matters covered hereby, and any other prior or contemporaneous
oral or written understandings or agreements with respect to the matters
covered hereby are superseded by this Agreement.
8.07 SEVERABILITY. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Agreement shall be
construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
8.08 CERTAIN ACTIONS FOR WHICH INDEMNIFICATION IS NOT PROVIDED.
Notwithstanding any other provision of this Agreement, Indemnitee shall
not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any Matter therein, brought
or made by Indemnitee against the Corporation.
8.09 NOTICES. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance
pursuant to the terms of this Agreement, notify the Corporation of the
commencement of such action, suit or proceeding; provided, however, that
any delay in so notifying the Corporation shall not constitute a waiver
or release by Indemnitee of rights hereunder and that any omission by
Indemnitee to so notify the Corporation shall not relieve the
Corporation from any liability that it may have to Indemnitee otherwise
than under this Agreement. Any communication required or permitted to
the Corporation shall be addressed to the Secretary of the Corporation
and any such communication to Indemnitee shall be addressed to the
Indemnitee's address as shown on the Corporation's records unless the
Indemnitee specifies otherwise and shall be personally delivered or
delivered by overnight mail delivery. Any such notice shall be
effective upon receipt.
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8.10 GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of Oklahoma without regard to any
principles of conflict of laws that, if applied, might permit or require
the application of the laws of a different jurisdiction.
8.11 HEADINGS. The Article and Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or
affect the meaning or interpretation of any provisions hereof.
8.12 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
8.13 USE OF CERTAIN TERMS. As used in this Agreement, the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular paragraph,
subparagraph, section, subsection, or other subdivision. Whenever the
context may require, any pronoun used in this Agreement shall include
the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice
versa.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
to be effective as of the date first above written.
SYNTROLEUM CORPORATION
By:
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇, President
INDEMNITEE
By:
--------------------------------
Name:
Title:
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