**EXHIBIT 10.28****INDEMNITY AGREEMENT**     This Indemnification Agreement (“Agreement”) is made as of ___, ___by andbetween Smith International, Inc. a Delaware corporation, and ___(“Indemnitee”).RECITALS     WHEREAS, highly competent persons have become more reluctant to serve publicly-heldcorporations as directors or in other capacities unless they are provided with adequate protectionthrough insurance or adequate indemnification against inordinate risks of claims and actionsagainst them arising out of their service to and activities on behalf of the corporation.     WHEREAS, the Restated Certificate of Incorporation and Restated Bylaws of the Company requireindemnification of the officers and directors of the Company, and Indemnitee may also be entitledto indemnification pursuant to the Delaware General Corporation Law (“DGCL”).     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order toattract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,at its sole expense, liability insurance to protect persons serving the Company and itssubsidiaries from certain liabilities.     WHEREAS, the uncertainties relating to such insurance and to indemnification have increasedthe difficulty of attracting and retaining such persons.     WHEREAS, the Board has determined that the increased difficulty in attracting and retainingsuch persons is detrimental to the best interests of the Company’s stockholders and that theCompany should act to assure such persons that there will be increased certainty of such protectionin the future.     WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligateitself to indemnify, and to advance expenses on behalf of, such persons to the fullest extentpermitted by applicable law so that they will serve or continue to serve the Company free fromundue concern that they will not be so indemnified.     WHEREAS, this Agreement is a supplement to and in furtherance of the Restated Certificate ofIncorporation and Restated Bylaws of the Company and any resolutions adopted pursuant thereto andany liability insurance, and shall not be deemed a substitute therefor, nor to diminish or abrogateany rights of Indemnitee thereunder.     WHEREAS, Indemnitee does not regard the protection available under the Company’s RestatedCertificate of Incorporation, Restated Bylaws and insurance as adequate in the presentcircumstances, and may not be willing to serve as an officer or director without adequateprotection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing toserve, continue to serve and to take on additional service for or on behalf of the Company on thecondition that he be so indemnified;     NOW, THEREFORE, in consideration of the promises and the covenants contained herein, theCompany and Indemnitee do hereby covenant and agree as follows:     1. **Services to the Company.**Indemnitee will serve or continue to serve, at the will of theCompany, as an officer, director or key employee of the Company for so long as Indemnitee is dulyelected or appointed or until Indemnitee tenders his resignation; however, this Agreement shall notimpose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Companybeyond any period otherwise required by law or by other agreements or commitments or the parties,if any.     2. **Definitions.**As used in this Agreement     (a) A “Change in Control” shall be deemed to occur upon the earliest to occur afterthe date of this Agreement of any of the following events: (i) The acquisition by any Person of beneficialownership (within the meaning of Rule 13d-3 promulgated under theExchange Act) of 20% or more of either (A) the then outstanding shares ofcommon stock of the Company (the “Outstanding Company
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   Common Stock”) or(B) the combined voting power of the then outstanding voting securitiesof the Company entitled to vote generally in the election of directors(the “Outstanding Company Voting Securities”); provided, however, thatfor purposes of this subsection (a), the following acquisitions shall notconstitute a Change of Control: (i) any acquisition directly from theCompany, (ii) any acquisition by the Company, (iii) any acquisition byany employee benefit plan (or related trust) sponsored or maintained bythe Company or any corporation controlled by the Company or (iv) anyacquisition by any corporation pursuant to a transaction which complieswith clauses (i), (ii) and (iii) of subsection (c) of this definition; or  (ii) Individuals who, as of the date hereof, constitutethe Board (the “Incumbent Board”) cease for any reason to constitute atleast a majority of the Board; provided, however, that any individualbecoming a director subsequent to the date hereof whose election, ornomination for election by the Company’s shareholders, was approved by avote of at least a majority of the directors then comprising theIncumbent Board shall be considered as though such individual were amember of the Incumbent Board, but excluding, for this purpose, any suchindividual whose initial assumption of office occurs as a result of anactual or threatened election contest with respect to the election orremoval of directors or other actual or threatened solicitation ofproxies or consents by or on behalf of a Person other than the Board; or  (iii) Consummation of a reorganization, merger, statutory share exchange orconsolidation or similar transaction involving the Company or any of itssubsidiaries, a sale or other disposition of all or substantially all ofthe assets of the Company, or the acquisition of assets or stock ofanother entity by the Company or any of its subsidiaries (each, a“Business Combination”), in each case, unless, following such BusinessCombination, (A) all or substantially all of the individuals and entitieswho were the beneficial owners, respectively, of the Outstanding CompanyCommon Stock and Outstanding Company Voting Securities immediately priorto such Business Combination beneficially own, directly or indirectly,more than 60% of, respectively, the then outstanding shares of commonstock and the combined voting power of the then outstanding votingsecurities entitled to vote generally in the election of directors, asthe case may be, of the corporation resulting from such BusinessCombination (including, without limitation, a corporation which as aresult of such transaction owns the Company or all or substantially allof the Company’s assets either directly or through one or moresubsidiaries) in substantially the same proportions as their ownership,immediately prior to such Business Combination of the Outstanding CompanyCommon Stock and Outstanding Company Voting Securities, as the case maybe, (B) no Person (excluding any corporation resulting from such BusinessCombination or any employee benefit plan (or related trust) of theCompany or such corporation resulting from such Business Combination)beneficially owns, directly or indirectly, 20% or more of, respectively,the then outstanding shares of common stock of the corporation resultingfrom such Business Combination or the combined voting power of the thenoutstanding voting securities of such corporation except to the extentthat such ownership existed prior to the Business Combination and (C) atleast a majority of the members of the board of directors of thecorporation resulting from such Business Combination were members of theIncumbent Board at the time of the execution of the initial agreement, orof the action of the Board, providing for such Business Combination; or  (iv) Approval by the shareholders of the Company of acomplete liquidation or dissolution of the Company.     (b) “Company” shall mean Smith International, Inc. and its successors, and shallinclude, in the case of any merger or consolidation, in addition to the resultingcorporation and surviving corporation, anyconstituent corporation (including any constituent of a constituent) absorbed insuch consolidation or merger which, if its separate existence had continued, would havehad power and authority to indemnify its directors, officers, employees, trustees,fiduciaries or agents, so that if Indemnitee is or was a director, officer, employee,trustee, fiduciary or agent of such constituent corporation, or is or was serving at therequest of such constituent corporation as a director, officer, employee. trustee,fiduciary or agent of another corporation, partnership, joint
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venture, trust employeebenefit program or other enterprise, Indemnitee shall stand in the same position underthe provisions of this Agreement with respect to the resulting or surviving corporationas Indemnitee would have with respect to such constituent corporation if its separateexistence had continued.     (c) “Corporate Status” describes the status of a person who is or was a director,officer, employee, agent, trustee or fiduciary of the Company or of any othercorporation, partnership or joint venture, trust, employee benefit plan or otherenterprise which such person is or was serving at the request of the Company.     (d) “Disinterested Director” means a director of the Company who is not and was nota party to the Proceeding in respect of which indemnification is sought by Indemnitee.     (e) “Enterprise” shall mean the Company and any other corporation, partnership,joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is orwas serving at the request of the Company as a director, officer, employee, agent,trustee or fiduciary.     (f) “Expenses” shall mean all retainers, court costs, transcript costs, fees ofexperts, witness fees, private investigators, travel expenses, duplicating costs,printing and binding costs, telephone charges, postage, fax transmission charges,secretarial services, delivery service fees, reasonable attorneys’ fees, and all otherdisbursements or expenses of the types customarily incurred in connection withprosecuting, defending, preparing to prosecute or defend, investigating, being orpreparing to be a witness in, or otherwise participating in, a Proceeding or inconnection with seeking indemnification under this Agreement. Expenses also shallinclude Expenses incurred in connection with any appeal resulting from any Proceeding,including without limitation the premium, security for, and other costs relating to anycost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however,shall not include amounts paid in settlement by Indemnitee or the amount of judgments orfines against Indemnitee.     (g) “Losses” shall mean all loss, liability, judgments, damages, amounts paid insettlement, fines, penalties, interest, assessments, other charges or, with respect to anemployee benefit plan, excise taxes or penalties assessed with respect thereto.     (h) Reference to “other enterprise” shall include employee benefit plans; referencesto “fines” shall include any excise tax assessed with respect to any employee benefitplan; references to “serving at the request of the Company” shall include any service asa director, officer, employee, trustee, fiduciary or agent of the Company which imposesduties on, or involves services by, such director, officer, employee, trustee, fiduciaryor agent with respect to an employee benefit plan, its participants or beneficiaries; anda person who acted in good faith and in a manner he reasonably believed to be in the bestinterests of the participants and beneficiaries of an employee benefit plan shall bedeemed to have acted in a manner “not opposed to the best interests of the Company” asreferred to under applicable law.     (i) “Person” means an individual, entity, partnership, limited liability company,corporation, association, joint stock company, trust, joint venture, unincorporatedorganization, and a governmental entity or any department agency or political subdivisionthereof.     (j) The term “Proceeding” shall include any threatened, pending or completed action,suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,administrative hearing or any other actual, threatened or completed proceeding, includingany and all appeals, whether brought in the right of the Company or otherwise and whetherof a civil, criminal, administrative or investigative nature and whether formal orinformal, in which Indemnitee was, is or will be involved as a party or otherwise byreason of or relating to the fact that Indemnitee is or was a director, officer,employee, agent, trustee or fiduciary of the Company, by reason of or relating to anyaction taken by him or of any action on his part while acting as director, officer,employee, agent, trustee or fiduciary of the Company, or by reason of the fact that he isor was serving at the request of the Company as a director, officer, employee, agent orfiduciary of another Enterprise, in each case whether or not serving in such capacity atthe time any Loss or Expense is incurred for whichindemnification, reimbursement, or advancement of Expenses can be provided underthis Agreement, including one initiated by a Indemnitee to enforce his rights under thisAgreement.     (k) “Independent Counsel” means a law firm, or a member of a law firm, that isexperienced in matters of relevant corporation law and neither presently is, nor in thepast five years has been, retained to represent: (i) the Company or Indemnitee in anymatter material to either such party (other than with respect to
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matters concerning theIndemnitee under this Agreement, or of other indemnitees under similar indemnificationagreements), or (ii) any other party to the Proceeding giving rise to a claim forindemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel”shall not include any person who, under the applicable standards of professional conductthen prevailing, would have a conflict of interest in representing either the Company orIndemnitee in an action to determine Indemnitee’s rights under this Agreement. TheCompany agrees to pay the reasonable fees and expenses of the Independent Counselreferred to above and to fully indemnify such counsel against any and all Expenses andLosses arising out of or relating to this Agreement or its engagement pursuant hereto.     (l) For purposes of Sections 3 and 4, the meaning of the phrase “to the fullestextent permitted by law” shall include, but not be limited to: A. to the fullest extent permitted by Section 145 of theDGCL or any section that replaces or succeeds Section 145 with respect tosuch matters of the DGCL, and  B. to the fullest extent authorized or permitted by anyamendments to or replacements of the DGCL adopted after the date of thisAgreement that increase the extent to which a corporation may indemnifyits officers, directors, employees, agents, trustees, fiduciaries andother persons acting or serving at the Company’s request.     3. **Indemnity in Third-Party Proceedings.**The Company shall indemnify Indemnitee in accordancewith the provisions of this Section 3 if Indemnitee was or is, or was or is threatened to be made,a party to or a witness or participant in any Proceeding, other than a Proceeding by or in theright of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemniteeshall be indemnified against all Expenses and Losses to the fullest extent permitted under law.     4. **Indemnity in Proceedings by or in the Right of the Company.**The Company shall indemnifyIndemnitee in accordance with the provisions of this Section 4 if Indemnitee was or is, or was oris threatened to be made, a party to or a participant in any Proceeding by or in the right of theCompany to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall beindemnified against all Expenses and Losses actually and reasonably incurred or suffered by him oron his behalf in connection with such Proceeding or any claim, issue or matter therein to thefullest extent permitted under law. No indemnification for Expenses shall be made under thisSection 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finallyadjudged by a court to be liable to the Company, unless and only to the extent that the DelawareCourt of Chancery or any court in which the Proceeding was brought shall determine upon applicationthat, 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.**Notwithstandingany other provisions of this Agreement, to the extent that Indemnitee was or is a party to (or aparticipant in) and is successful, on the merits or otherwise, in any Proceeding or in defense ofany claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemniteeagainst all Expenses actually and reasonably incurred by him in connection therewith. IfIndemnitee is not wholly successful in such Proceeding but is successful, on the merits orotherwise, as to one or more but less than all claims, issues or matters in such Proceeding, theCompany shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him oron his behalf in connection with each successfully resolved claim, issue or matter and any claim,issue or matter related to any claim, issue, or matter on which the Indemnitee was successful. Forpurposes of this Section and without limitation, the termination of any claim, issue or matter insuch a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successfulresult as to such claim, issue or matter.     6. **Indemnification For Expenses of a Witness.**Notwithstanding any other provision of thisAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in anyProceeding to which Indemnitee is not a party, he shall be indemnified against all Expensesactually and reasonably incurred by him or on his behalf in connection therewith.     7. **Exclusions.**Notwithstanding any provision in this Agreement, the Company shall not beobligated under this Agreement to make any indemnity in connection with any claim made againstIndemnitee.     (a) for which payment has actually been made to or on behalf of Indemnitee under anyinsurance policy or other indemnity provision, except with respect to any excess beyondthe amount paid under any insurance policy or other indemnity provision; or     (b) for an accounting of profits made from the purchase and sale (or sale andpurchase) by Indemnitee of securities of the Company within the meaning of Section 16(b)of the Securities Exchange Act of 1934, as
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     amended, or similar provisions of statestatutory law or common law; or     (c) in connection with any Proceeding (or any part of any Proceeding) initiated orbrought voluntarily by Indemnitee prior to a Change of Control against the Company or itsdirectors, officers, employees or other indemnitees, unless (i) the Board of Directors ofthe Company authorized the Proceeding (or any part of any Proceeding) prior to itsinitiation, or (ii) the Company provides indemnification, in its sole discretion,pursuant to the powers vested in the Company under applicable law.     8. **Advances of Expenses.**Notwithstanding any provision of this Agreement to the contrary,the Company shall advance the Expenses incurred by Indemnitee in connection with any Proceeding forwhich indemnification is or may be available pursuant to this Agreement within 20 days after thereceipt 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 andinterest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expensesand without regard to Indemnitee’s ultimate entitlement to indemnification under the otherprovisions of this Agreement. Advances shall include any and all Expenses incurred pursuing anaction to enforce this right of advancement, including Expenses incurred preparing and forwardingstatements to the Company to support the advances claimed. The Indemnitee shall qualify foradvances solely upon the execution and delivery to the Company of an undertaking providing that theIndemnitee undertakes to repay the advance to the extent that it is ultimately determined pursuantto Section 11(a) that Indemnitee is not entitled to be indemnified by the Company in respectthereof.     9. **Selection of Counsel.**In the event the Company is obligated under Section 8 hereof to pay,and pays the Expenses of any Proceeding against Indemnitee, the Company, if appropriate, shall beentitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, whichapproval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice ofits election so to do. After delivery of such notice, approval of such counsel by Indemnitee andthe retention of such counsel by the Company, the Company will not be liable to Indemnitee underthis Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the sameProceeding, provided that (i) Indemnitee shall have the right to employ his counsel in any suchProceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee hasbeen previously authorized by the Company, (B) Indemnitee shall have reasonably concluded thatthere may be a conflict of interest between the Company and Indemnitee in the conduct of any suchdefense, or (C) the Company shall not, in fact, have employed counsel approved by the Indemnitee toassume the defense of such Proceeding, then the fees and expenses of Indemnitee’s counsel shall beat the expense of the Company.     10. **Procedure for Notification and Defense of Claim.**     (a) Indemnitee shall, as a condition precedent to his right to be indemnified underthis Agreement, give the Company notice in writing as soon as practicable of any claimmade against Indemnitee for which indemnification will or could be sought under thisAgreement, provided however, that a delay in giving such notice shall not depriveIndemnitee of any right to be indemnified under this Agreement unless, and then only tothe extent that, such delay is materially prejudicial to the defense of such claim. Theomission to notify the Company will not relieve the Company from any liability forindemnification which it may have to Indemnitee otherwise than under this Agreement. TheSecretary of the Company shall, promptly upon receipt of such a request forindemnification, advise the Board in writing that Indemnitee has requestedindemnification.     (b) The Company will be entitled to participate in any Proceeding at its ownexpense.     11. **Procedure Upon Application for Indemnification.**     (a) Upon written request by Indemnitee for indemnification pursuant to the firstsentence of Section 10(a), a determination, if required by applicable law, with respectto Indemnitee’s entitlement thereto shall bemade in the specific case: (i) if a Change in Control shall have occurred, byIndependent Counsel in a written opinion to the Board of Directors, a copy of which shallbe 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 theBoard, (B) by a committee of Disinterested Directors designated by a majority vote of theDisinterested Directors, even though less than a quorum of the Board, or (C) if there areno such Disinterested Directors or, if such Disinterested Directors so direct, byIndependent Counsel in a written opinion to the Board, a copy of which shall be deliveredto Indemnitee; and, if it is so determined that Indemnitee is entitled toindemnification, payment to Indemnitee shall be made within ten (10) days after suchdetermination. Indemnitee shall cooperate with the person, persons or entity making suchdetermination with respect to Indemnitee’s entitlement to indemnification, includingproviding to such person, persons or entity upon
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reasonable advance request anydocumentation or information which is not privileged or otherwise protected fromdisclosure and which is reasonably available to Indemnitee and reasonably necessary tosuch determination. Any costs or expenses (including attorneys’ fees and disbursements)incurred by Indemnitee in so cooperating with the person, persons or entity making suchdetermination shall be borne by the Company (irrespective of the determination as toIndemnitee’s entitlement to indemnification) and the Company hereby indemnifies andagrees to hold Indemnitee harmless therefrom.     (b) In the event the determination of entitlement to indemnification is to be madeby Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall beselected as provided in this Section 11(b). If a Change in Control shall not haveoccurred, the Independent Counsel shall be selected by the Board of Directors, and theCompany shall give written notice to Indemnitee advising him of the identity of theIndependent Counsel so selected. If a Change in Control shall have occurred, theIndependent Counsel shall be selected by Indemnitee (unless Indemnitee shall request thatsuch selection be made by the Board of Directors, in which event the preceding sentenceshall apply), and Indemnitee shall give written notice to the Company advising it of theidentity of the Independent Counsel so selected. In either event, Indemnitee or theCompany, as the case may be, may, within 10 days after such written notice of selectionshall have been given, deliver to the Company or to Indemnitee, as the case may be, awritten objection to such selection; provided, however, that such objection may beasserted only on the ground that the Independent Counsel so selected does not meet therequirements of “Independent Counsel” as defined in Section 2 of this Agreement, and theobjection shall set forth with particularity the factual basis of such assertion. Absenta 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 soselected may not serve as Independent Counsel unless and until such objection iswithdrawn or a court has determined that such objection is without merit. If, within 20days after submission by Indemnitee of a written request for indemnification pursuant toSection 10(a) hereof, no Independent Counsel shall have been selected and not objectedto, either the Company or Indemnitee may petition a court of competent jurisdiction forresolution of any objection which shall have been made by the Company or Indemnitee tothe other’s selection of Independent Counsel and/or for the appointment as IndependentCounsel of a person selected by the Court or by such other person as the Court shalldesignate, and the person with respect to whom all objections are so resolved or theperson so appointed shall act as Independent Counsel under Section 11(a) hereof. Uponthe due commencement of any judicial proceeding or arbitration pursuant to Section 13(a)of this Agreement, Independent Counsel shall be discharged and relieved of any furtherresponsibility in such capacity (subject to the applicable standards of professionalconduct then prevailing).     12. **Presumptions and Effect of Certain Proceedings.**     (a) In making a determination with respect to entitlement to indemnificationhereunder, the person or persons or entity making such determination shall presume thatIndemnitee is entitled to indemnification under this Agreement and the Company shallhave the burden of proof to overcome that presumption in connection with the making byany person, persons or entity of any determination contrary to that presumption. Neitherthe failure of the Company (including by its directors or independent legal counsel) tohave made a determination prior to the commencement of any action pursuant to thisAgreement that indemnification is proper in the circumstances because Indemnitee has metthe applicable standard of conduct, nor an actual determination by the Company (includingby its directors or independent legal counsel) that Indemnitee has not met suchapplicable standard of conduct, shall be a defense to the action or create a presumptionthat Indemnitee has not met the applicable standard of conduct.     (b) If the person, persons or entity empowered or selected under Section 11 of thisAgreement to determine whether Indemnitee is entitled to indemnification shall not havemade a determination within sixty (60) days after receipt by the Company of the requesttherefor, the requisite determination of entitlement to indemnification shall be deemedto have been made and Indemnitee shall be entitled to such indemnification, absent (i) amisstatement by Indemnitee of a material fact, or an omission of a material factnecessary to make Indemnitee’s statement not materially misleading, in connection withthe request for indemnification, or (ii) a prohibition of such indemnification underapplicable law; provided, however, that such 60-day period may be extended for areasonable time, not to exceed an additional thirty (30) days, if the person, persons orentity making the determination with respect to entitlement to indemnification in goodfaith requires such additional time for the obtaining or evaluating of documentationand/or information relating thereto; and provided, further, that the foregoing provisionsof this Section 12(b) shall not apply if the determination of entitlement toindemnification is to be made by Independent Counsel pursuant to Section 11(a) of thisAgreement.
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     (c) The termination of any Proceeding or of any claim, issue or matter therein, byjudgment, order, settlement or conviction, or upon a plea of nolo contendere or itsequivalent, shall not (except as otherwise expressly provided in this Agreement) ofitself adversely affect the right of Indemnitee to indemnification or create apresumption that Indemnitee did not meet any applicable standard of conduct underapplicable law (or did or did not hold any particular state of knowledge referred tounder applicable law).     (d) Reliance as Safe Harbor. For purposes of any determination of goodfaith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action isbased on the records or books of account of the Enterprise, including financialstatements, or on information supplied to Indemnitee by the officers of the Enterprise inthe course of their duties, or on the advice of legal counsel for the Enterprise or oninformation or records given or reports made to the Enterprise by an independentcertified public accountant or by an appraiser or other expert selected with thereasonable care by the Enterprise. The provisions of this Section 12(d) shall not bedeemed to be exclusive or to limit in any way the other circumstances in which theIndemnitee may be deemed to have met the applicable standard of conduct set forth in thisAgreement.     (e) Actions of Others. The knowledge and/or actions, or failure to act, ofany director, officer, agent, trustee, fiduciary or employee of the Enterprise shall notbe imputed to Indemnitee for purposes of determining the right to indemnification underthis Agreement.     13. **Remedies of Indemnitee.**     (a) In the event that (i) a determination is made pursuant to Section 11 of thisAgreement that Indemnitee is not entitled to indemnification under this Agreement, (ii)advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii)no determination of entitlement to indemnification shall have been made pursuant toSection 11(a) of this Agreement within 30 days after receipt by the Company of therequest for indemnification, or (iv) payment of indemnification is not made pursuant toSection 3, 4, 5, 6 or the last sentence of Section 11(a) of this Agreement within ten(10) days after receipt by the Company of a written request therefor, or, if adetermination is required by law, within ten (10) days after a determination has beenmade that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to anadjudication (or, in the case of clause (i), to seek an adjudication) by the DelawareCourt of his entitlement to such indemnification or advancement of Expenses; provided,that nothing contained in this Section 13 shall be deemed to limit Indemnitee’s rightsunder Section 12(b). Alternatively, Indemnitee, at his option, may seek an award inbinding arbitration to be conducted by a single arbitrator pursuant to the CommercialArbitration Rules of the American Arbitration Association. The Company shall not opposeIndemnitee’s right to seek any such adjudication or award in arbitration.     (b) In the event that a determination shall have been made pursuant to Section 11(a)of this Agreement that Indemnitee is not entitled to indemnification, any judicialproceeding or arbitration commenced pursuant to this Section 13 shall be conducted in allrespects as a de novo trial, or arbitration, on the merits and Indemnitee shall not beprejudiced by reason of that adverse determination. In any judicial proceeding orarbitration commenced pursuant to this Section 13 the Company shall have the burden ofproving Indemnitee is not entitled to indemnification or advancement of Expenses, as thecase may be.     (c) If a determination shall have been made pursuant to Section 11(a) of thisAgreement that Indemnitee is entitled to indemnification, the Company shall be bound bysuch determination in any judicialproceeding or arbitration commenced pursuant to this Section 13, absent (i) amisstatement by Indemnitee of a material fact, or an omission of a material factnecessary to make Indemnitee’s statement not materially misleading, in connection withthe request for indemnification, or (ii) a prohibition of such indemnification underapplicable law.     (d) The Company shall be precluded from asserting in any judicial proceeding orarbitration commenced pursuant to this Section 13 that the procedures and presumptions ofthis Agreement are not valid, binding and enforceable and shall stipulate in any suchcourt or before any such arbitrator that the Company is bound by all the provisions ofthis Agreement. The Company shall indemnify Indemnitee against any and all Expenses and,if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of awritten request therefore) advance such expenses to Indemnitee, which are incurred byIndemnitee in connection with any action brought by Indemnitee for indemnification oradvance of Expenses from the Company under this Agreement, under the Company’scertificate of incorporation or bylaws as in effect from time to time or under anydirectors’ and officers’ liability insurance policies maintained by the Company,regardless of whether
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Indemnitee ultimately is determined to be entitled to suchindemnification, advancement of Expenses or insurance recovery, as the case may be.     14. **Non-exclusivity; Survival of Rights; Insurance; Subrogation.**     (a) The rights of indemnification and to receive advancement of Expenses as providedby this Agreement shall not be deemed exclusive of any other rights to which Indemniteemay at any time be entitled under applicable law, the Company’s Restated Certificate ofIncorporation, the Company’s Restated Bylaws, any agreement, a vote of stockholders or aresolution of directors, or otherwise. No amendment, alteration or repeal of thisAgreement or of any provision hereof shall limit or restrict any right of Indemniteeunder this Agreement in respect of any action taken or omitted by such Indemnitee in hisCorporate Status prior to such amendment, alteration or repeal. To the extent that achange in Delaware law, whether by statute or judicial decision, permits greaterindemnification or advancement of Expenses than would be afforded currently under theCompany’s Restated Certificate of Incorporation, Restated Bylaws and this Agreement, itis the intent of the parties hereto that Indemnitee shall enjoy by this Agreement thegreater benefits so afforded by such change. No right or remedy herein conferred isintended to be exclusive of any other right or remedy, and every other right and remedyshall be cumulative and in addition to every other right and remedy given hereunder ornow or hereafter existing at law or in equity or otherwise. The assertion or employmentof any right or remedy hereunder, or otherwise, shall not prevent the concurrentassertion or employment of any other right or remedy.     (b) The Company shall, from time to time, make the good faith determination whetheror not it is practicable for the Company to obtain and maintain a policy or policies ofinsurance with reputable insurance companies providing the directors, officers,employees, trustees, fiduciaries and agents of the Company with coverage for losses fromwrongful acts, or to ensure the Company’s performance of its indemnification obligationsunder this Agreement. Among other considerations, the Company will weigh the costs ofobtaining such insurance coverage against the protection afforded by such coverage. Tothe extent that the Company maintains an insurance policy or policies providing liabilityinsurance for directors, officers, employees, trustees, fiduciaries and agents of theCompany or of any other corporation, partnership, joint venture, trust, employee benefitplan or other enterprise which such person serves at the request of the Company,Indemnitee shall be covered by such policy or policies in accordance with its or theirterms to the maximum extent of the coverage available for any such director, officer,employee, trustee, fiduciary or agent under such policy or policies. If, at the time ofthe receipt of a notice of a claim pursuant to the terms hereof, the Company has directorand officer liability insurance in effect, the Company shall give prompt notice of thecommencement of such proceeding to the insurers in accordance with the procedures setforth in the respective policies. The Company shall thereafter take all necessary ordesirable action to cause such insurers to pay, on behalf of the Indemnitee, all amountspayable as a result of such proceeding in accordance with the terms of such policies.     (c) In the event of any payment under this Agreement, the Company shall besubrogated 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 suchrights, including execution of such documents as are necessary to enable the Company tobring suit to enforce such rights.     (d) The Company shall not be liable under this Agreement to make any payment ofamounts otherwise indemnifiable (or for which advancement is provided hereunder)hereunder if and to the extent that Indemnitee has otherwise actually received suchpayment under any insurance policy, contract, agreement or otherwise     (e) The Company’s obligation to indemnify or advance Expenses hereunder toIndemnitee who is or was serving at the request of the Company as a director, officer,employee, trustee, fiduciary or agent of any other corporation, partnership, jointventure, trust, employee benefit plan or other enterprise shall be reduced by any amountIndemnitee has actually received as indemnification or advancement of expenses from suchother corporation, partnership, joint venture, trust, employee benefit plan or otherenterprise.     15. **Settlement**. (a) The Company shall have no obligation to indemnify Indemniteeunder this Agreement for any amounts paid in settlement of any Proceeding by the Indemniteeeffected without the Company’s prior written consent.     (b) The Company shall not, without the prior written consent of Indemnitee, consentto the entry of any judgment against Indemnitee or enter into any settlement orcompromise which (i) includes an admission of fault of Indemnitee, any non-monetaryremedy affecting or obligation of Indemnitee, or Monetary Loss for
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which Indemnitee isnot indemnified hereunder or (ii) with respect to any Proceeding with respect to whichIndemnitee may be or is made a party, witness or participant or may be or is otherwiseentitled to seek indemnification hereunder, does not include, as an unconditional termthereof, the full release of Indemnitee from all liability in respect of such Proceeding,which release shall be in form and substance reasonably satisfactory to Indemnitee.       (c) Neither the Company nor Indemnitee shall unreasonably withhold their consent toany proposed settlement.     16. **Duration of Agreement.**This Agreement shall continue until and terminate upon the laterof: (a) 10 years after the date that Indemnitee shall have ceased to serve as a director or officerof the Company or as a director, officer, employee, trustee, fiduciary or agent of any othercorporation, partnership, joint venture, trust, employee benefit plan or other enterprise whichIndemnitee served at the request of the Company; or (b) 1 year after the final termination of anyProceeding, including any and all appeals, then pending in respect of which Indemnitee is grantedrights of indemnification or advancement of Expenses hereunder and of any proceeding commenced byIndemnitee pursuant to Section 13 of this Agreement relating thereto.     17. **Successors and Assigns.**This Agreement shall be binding upon the Company and itssuccessors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors andadministrators.     18. **Severability.**If any provision or provisions of this Agreement shall be held to beinvalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality andenforceability of the remaining provisions of this Agreement (including without limitation, eachportion of any Section of this Agreement containing any such provision held to be invalid, illegalor unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way beaffected 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 toapplicable law and to give the maximum effect to the intent of the parties hereto; and (c) to thefullest extent possible, the provisions of this Agreement (including, without limitation, eachportion of any Section of this Agreement containing any such provision held to be invalid, illegalor unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as togive effect to the intent manifested thereby.     19. **Enforcement.**     (a) The Company expressly confirms and agrees that it has entered into thisAgreement and assumed the obligations imposed on it hereby in order to induce Indemniteeto serve as a director or officer of the Company, and the Company acknowledges thatIndemnitee is relying upon this Agreement in serving as a director or officer of theCompany.     (b) This Agreement constitutes the entire agreement between the parties hereto withrespect to the subject matter hereof and supersedes all prior agreements andunderstandings, oral, written and implied, between the parties hereto with respect to thesubject matter hereof.     20. **Effectiveness of Agreement.**This Agreement shall be effective as of the date set forthon the first page and may apply to acts or omissions of Indemnitee which occurred prior to suchdate if Indemnitee was an officer, director, employee, trustee, fiduciary or other agent of theCompany, or was serving at the request of the Company as a director, officer, employee, trustee,fiduciary or agent of another corporation, partnership, joint venture, trust, employee benefit planor other enterprise, at the time such act or omission occurred.     21. **Modification and Waiver.**No supplement, modification or amendment of this Agreement shallbe binding unless executed in writing by the parties thereto. No waiver of any of the provisionsof this Agreement shall be deemed or shall constitute a waiver of any other provisions of thisAgreement nor shall any waiver constitute a continuing waiver.     22. **Notice by Indemnitee.**Indemnitee agrees promptly to notify the Company in writing uponbeing served with any summons, citation, subpoena, complaint, indictment, information or otherdocument relating to any Proceeding or matter which may be subject to indemnification oradvancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Companyshall not relieve the Company of any obligation which it may have to the Indemnitee under thisAgreement or otherwise.
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     23. **Notices.**All notices, requests, demands and other communications under this Agreementshall be in writing and shall be deemed to have been duly given (a) if delivered by hand andreceipted for by the party to whom said notice or other communication shall have been directed, or(b) mailed by certified or registered mail with postage prepaid, on the third business day afterthe date on which it is so mailed:     (a) If to Indemnitee, at the address indicated on the signature page of thisAgreement, or such other address as Indemnitee shall provide to the Company.     (b) If to the Company toSmith International, Inc.