Exhibit 10.2
Indemnification Agreement dated the later
of its two signatory dates between Deep Fission, Inc., a Delaware corporation (the “Company”), and the undersigned
officer or director of the Company (“Indemnitee”). This Agreement supersedes and replaces any and all previous agreements
between the Company and Indemnitee covering the subject matter of this Agreement.
In consideration of the premises and the covenants
contained in this Agreement, the Company and Indemnitee covenant and agree as follows:
1. Service
to the Company. Indemnitee has agreed to serve as a director on the Company’s Board of Directors (the “Board”)
and/or as an officer of the Company. This Agreement shall continue in force after Indemnitee has ceased to serve as an officer or director
of the Company as provided in Section 16.
2. Definitions.
As used in this Agreement:
2.1. “Agent”
shall mean any person who is or was a director, officer, or employee of the Company or a subsidiary of the Company or other person authorized
by the Company to act for the Company, to include such person 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.
2.2. “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial
Owner shall exclude any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of
the Company with another entity.
2.3. “Bylaws”
means the bylaws of the Company, as amended.
2.4. “Certificate
of Incorporation” means the Certificate of Incorporation of the Company, as amended.
2.5. “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:
2.5.1. Acquisition
of Stock by Third Party. Any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing
50% or more of the combined voting power of the Company’s then outstanding securities unless the change in 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;
2.5.2. Change
in Board of Directors. During any period of two consecutive years (not including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a transaction described in Sections 2.5.1, 2.5.3 or 2.5.4) 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 either were directors at the beginning of the period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority of the members of the Board;
2.5.3. Corporate
Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of the Surviving Entity) more than 50% of the
combined voting power of the voting securities of the Surviving Entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of such Surviving Entity;
2.5.4. Liquidation.
The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company’s assets; and
2.5.5. 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.
2.6. “Corporate
Status” describes the status of a person who is or was a director, trustee, partner, managing member, officer, employee, Agent
or fiduciary of the Company or of any other corporation, limited liability company, partnership or joint venture, trust or Other Enterprise
which such person is or was serving at the request of the Company.
2.7. “DGCL”
means the General Corporation Law of the State of Delaware.
2.8. “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.
2.9. “Enterprise”
shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust or Other Enterprise of
which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, employee,
Agent or fiduciary.
2.10. “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
2.11. “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and other costs of experts and other
professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service
fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement, ERISA excise taxes and penalties, and all other disbursements, obligations or expenses of the types customarily incurred
in connection with, or as a result of, prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to
be a deponent or witness in, or otherwise participating in, a Proceeding. Expenses also shall include (i) Expenses incurred
in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating
to any cost bond, supersedeas bond, or other appeal bond or its equivalent, (ii) Expenses incurred in connection with recovery under
any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee is ultimately
determined to be entitled to such indemnification, advancement or Expenses or insurance recovery, as the case may be, and (iii) for
purposes of Section 14.4 only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s
rights under this Agreement, the Certificate of Incorporation, the Bylaws or under any directors’ and officers’ liability
insurance policies maintained by the Company, by litigation or otherwise. The parties agree that for the purposes of any advancement of
Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such
demand that are certified by affidavit of Indemnitee’s counsel as being reasonable in the good faith judgment of such counsel shall
be presumed conclusively to be reasonable. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount
of judgments or fines against Indemnitee.
2.12. “Independent
Counsel” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) 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 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. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
2.13. “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person
shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any entity owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.
2.14. “Proceeding”
shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim, 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, criminal, administrative, legislative, regulatory or investigative
(formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party,
non-party witness or otherwise by reason of Indemnitee’s Corporate Status, by reason of any action taken by Indemnitee (or a failure
to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s
Corporate Status, 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. If the Indemnitee believes in good faith that a given
situation may lead to or culminate in the institution of a Proceeding, this shall be considered a Proceeding under this paragraph.
2.15. “Other
Enterprise” shall include employee benefit plans; references to “fines” shall include any excise tax assessed 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 or Agent of the Company which imposes duties on, or involves services by, such director, officer, employee
or Agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who 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 shall be
deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
2.16. “Surviving
Entity” shall mean the surviving entity in a merger or consolidation or any entity that controls, directly or indirectly, such
surviving entity.
3. Indemnity
in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, a party to or a participant 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 to the fullest extent permitted
by applicable law against all Expenses, judgments, fines 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 and amounts paid in settlement) actually and
reasonably incurred by Indemnitee or on Indemnitee’s 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 Indemnitee’s conduct was unlawful. The
parties hereto intend that this Agreement shall provide to the fullest extent permitted by law for indemnification in excess of that expressly
permitted by statute, including, without limitation, any indemnification provided by the Certificate of Incorporation, the Bylaws, vote
of the Company’s stockholders or disinterested directors or applicable law.
4. Indemnity
in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant 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 to the fullest extent
permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s 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. No indemnification 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 the Delaware Court or any court in which the Proceeding was brought 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.
5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest
extent permitted by applicable law and 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
Indemnitee against all Expenses actually and reasonably incurred by or on behalf of Indemnitee 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 Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest
extent permitted by law. For purposes of this Section 5 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 fullest extent permitted by applicable law
and to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness, is or was made (or asked) to respond
to discovery requests in any Proceeding, or otherwise asked to participate in any Proceeding to which Indemnitee is not a party, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
7. Partial
Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion
of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled.
8. Additional
Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee to the fullest extent
permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a
Proceeding by or in the right of the Company to procure a judgment in its favor) by reason of Indemnitee’s Corporate Status. For
purposes of this Section 8, the meaning of the phrase “to the fullest extent permitted by applicable law” shall include,
but not be limited to: (i) to the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL, and (ii) to the fullest
extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers and directors.
9. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification payment
in connection with any claim involving Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under
any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy
or other indemnity provision; or (b) for (i) 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, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based
or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each
case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from
the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement
(such Proceeding, a “Clawback Proceeding”) of the Company by Indemnitee of any compensation pursuant to any compensation
recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy
adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act (a “Clawback Policy”);
or (c) except as provided in Section 14.4, 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 brought or raised by Indemnitee in any Proceeding (or any
part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested
in the Company under applicable law.
10. Advances
of Expenses. Notwithstanding any provision of this Agreement to the contrary (other than Section 14.4), the Company shall advance,
to the extent not prohibited by law, the Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding (or any part
of any Proceeding) not initiated by Indemnitee or any Proceeding initiated by Indemnitee with the prior approval of the Board as provided
in Section 9, and such advancement shall be made within 30 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 indemnification under the other provisions of this Agreement. In accordance with Section 14.4, advances shall
include any and all reasonable Expenses incurred pursuing an action 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 upon the
execution and delivery to the Company of this Agreement, which shall constitute an undertaking providing that the Indemnitee undertakes
to repay the amounts advanced (without interest) by the Company pursuant to this Section 10, if and only to the extent that it is
ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking shall be required
other than the execution of this Agreement. This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is
excluded pursuant to Section 9.
11. Procedure
for Notification and Defense of Claim. Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee
intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee
of written notice thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding.
The omission by Indemnitee to notify the Company hereunder will not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee
of any rights under this Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise
the Board in writing that Indemnitee has requested indemnification. The Company will be entitled to participate in the Proceeding at its
own expense. The Company shall not settle any Proceeding (in whole or in part) if such settlement would impose any Expense, judgment,
liability, fine, penalty or limitation on Indemnitee in respect of which Indemnitee is not entitled to be indemnified hereunder without
Indemnitee’s prior written consent, which shall not be unreasonably withheld.
12. Procedure
Upon Application for Indemnification
12.1. Upon
written request by Indemnitee for indemnification pursuant to Section 11, a determination, if required by applicable law, with respect
to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control
shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by
a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of
the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Board, by the stockholders
of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within
ten days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect
to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request
any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee
and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by
or on behalf of 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. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee
is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.
12.2. In
the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12.1, the
Independent Counsel shall be selected as provided in this Section 12.2. If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of
the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, 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, 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 the Delaware Court has determined
that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification
pursuant to Section 11.1 and the final disposition of the Proceeding, 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 such court or by such other person as such court shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under Section 12.1. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 14.1 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).
12.3. 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
13.1. In
making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination
shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 11(a), and the Company shall, to the fullest extent not prohibited
by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity 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.
13.2. Subject
to Section 14.5, if the person, persons or entity empowered or selected under Section 12 to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within 60 days after receipt by the Company of the request therefor, the
requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made
and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission
of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification,
or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional 30 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; and provided, further, that the foregoing provisions of this Section 13.2 shall not apply (i) if the determination
of entitlement to indemnification is to be made by the stockholders pursuant to Section 12.1 and if (A) within 15 days after
receipt by the Company of the request for such determination the Board has resolved to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat,
or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if
the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12.1.
13.3. 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 Indemnitee’s conduct was unlawful.
13.4. 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 or
on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser, financial
advisor or other expert selected with reasonable care by or on behalf of the Enterprise. The provisions of this Section 13.4 shall
not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
13.5. The
knowledge and/or actions, or failure to act, of any 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.
14.1. Subject
to Section 14.5, in the event that (i) a determination is made pursuant to Section 12 that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10, (iii) no
determination of entitlement to indemnification shall have been made pursuant to Sections 12.1 within 90 days after receipt by the Company
of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 5, 6 or 7 or the second
to last sentence of Section 12.1 within ten days after receipt by the Company of a written request therefor, (v) payment of
indemnification pursuant to Section 3, 4 or 8 is not made within ten days after a determination has been made that Indemnitee is
entitled to indemnification, or (vi) the Company or any other person takes or threatens to take any action to declare this Agreement
void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee
the benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by
a court of Indemnitee’s entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at Indemnitee’s
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. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within
180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 14.1. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
14.2. In
the event that a determination shall have been made pursuant to Section 12.1 that Indemnitee is not entitled to indemnification,
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 the Company shall have the burden of proving Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be.
14.3. If
a determination shall have been made pursuant to Section 12.1 that Indemnitee is entitled to indemnification, 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.
14.4. The
Company shall, to the fullest extent not prohibited by law, 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. It is the
intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder.
The Company shall, to the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such
Expenses to Indemnitee, which are incurred by or on behalf of Indemnitee in connection with any action brought by Indemnitee for indemnification
or advancement of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance
policies maintained by the Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims;
if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful
on such underlying claims or otherwise as permitted by law, whichever is greater.
14.5. Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall
be required to be made prior to the final disposition of the Proceeding.
15. Non-exclusivity;
Survival of Rights; Insurance; Subrogation
15.1. The
rights of indemnification and to receive advancement of Expenses 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 Certificate of Incorporation, the Bylaws,
any agreement, a vote of stockholders or a resolution of directors, or otherwise and (ii) shall be interpreted independently of,
and without reference to, 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 Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal. To the extent that
a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would
be afforded currently under the Bylaws, Certificate of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive
of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
15.2. To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or Agents of the Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer, employee or Agent under such policy or policies. If, at the time
of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, 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.
15.3. In
the event of any payment made by the Company 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.
15.4. The
Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement
is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
15.5. The
Company’s obligation to indemnify 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 corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or Other Enterprise shall be reduced by any amount Indemnitee has actually received
as indemnification or advancement of Expenses from such other corporation, limited liability company, partnership, joint venture, trust
or Other Enterprise.
16. Duration
of Agreement. This Agreement shall continue until and terminate upon the later of: (a) ten years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company or (b) one year after the final termination of any Proceeding
then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
(including any appeal thereof) commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification
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 Indemnitee’s
spouse, assigns, heirs, devisees, executors and administrators and other legal representatives. The Company shall require and shall cause
any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company to, by written agreement, expressly 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.
17. Severability.
Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation
of applicable law. 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 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 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.
18. Enforcement.
The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving or continuing to serve as a director or officer of the Company. 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; provided, however, that this Agreement is a supplement
to and in furtherance of the Certificate of Incorporation, the Bylaws, any directors’ and officers’ insurance maintained by
the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
19. 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.
20. Notice
by Indemnitee. Indemnitee agrees promptly to notify 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 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.
21. Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed,
(c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been
directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received: (i) if
to Indemnitee, at the home address on file with the Company, or such other address as Indemnitee shall provide to the Company and (ii) if
to the Company to its corporate headquarters, attention: General Counsel, or to any other address as may have been furnished to Indemnitee
by the Company.
22. Contribution.
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or
transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers,
employees and Agents) and Indemnitee in connection with such event(s) and/or transaction(s).
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 14.1, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Court of Chancery of the
State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America
or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise
subject to service of process in the State of Delaware, irrevocably RL&F Service Corp., 920 North King Street, 2nd Floor,
Wilmington, New Castle County, Delaware 19801 as its agent in the State of Delaware 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, (iv) waive any objection to the laying of venue of any such action or proceeding in
the Delaware Court, and (v) 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.
24. General
Terms. 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. The headings 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.
| Accepted & Agreed: |
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| DEEP FISSION, INC., |
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INDEMNITEE |
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| By: |
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By: |
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| Name: Jon Gordon |
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Name: |
| Title: General Counsel & Secretary |
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| Date: |
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Date: |
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