contractual obligation or other obligation imposed by operation by law), in which event theCompany shall have no obligation under this Agreement to continue the Indemnitee in any suchposition. Nothing in this Agreement shall confer upon the Indemnitee the right to continue in theemploy of the Company or as a director of the Company or affect the right of the Company toterminate the Indemnitee’s employment at any time in the sole discretion of the Company, with orwithout cause, subject to any contract rights of the Indemnitee created or existing otherwise thanunder this Agreement.     2. Indemnification. The Company shall indemnify the Indemnitee against all Expenses(as defined below), judgments, fines and amounts paid in settlement actually and reasonablyincurred by the Indemnitee as provided in this Agreement to the fullest extent permitted by theCertificate, By-laws and DGCL or other applicable law in effect on the date of this Agreement andto any greater extent that applicable law may in the future from time to time permit. Withoutdiminishing the scope of the indemnification provided by this Section 2, the rights ofindemnification of the Indemnitee provided hereunder shall include, but shall not be limited to,those rights hereinafter set forth, except that no indemnification shall be paid to the Indemnitee:     (a) on account of any action, suit or proceeding in which judgment is renderedagainst the Indemnitee for disgorgement of profits made from the purchase or sale bythe Indemnitee of securities of the Company pursuant to the provisions of Section16(b) of the Securities Exchange Act of 1934, as amended (the “Act”), or similarprovisions of any federal, state or local statutory law;     (b) on account of conduct of the Indemnitee which is finally adjudged by acourt of competent jurisdiction to have been knowingly fraudulent or to constitutewillful misconduct;     (c) in any circumstance where such indemnification is expressly prohibited byapplicable law;     (d) with respect to liability for which payment is actually made to theIndemnitee under a valid and collectible insurance policy of the Company or under avalid and enforceable indemnity clause, By-law or agreement (other than thisAgreement) of the Company, except in respect of any liability in excess of paymentunder such insurance, clause, By-law or agreement;     (e) if a final decision by a court having jurisdiction in the matter shalldetermine that such indemnification is not lawful (and, in this respect, both theCompany and the Indemnitee have been advised that it is the position of theSecurities and Exchange Commission that indemnification for liabilities arisingunder the federal securities laws is against public policy and is, therefore,unenforceable, and that claims for indemnification should be submitted to theappropriate court for adjudication); or     (f) in connection with any action, suit or proceeding by the Indemnitee againstthe Company or any of its direct or indirect subsidiaries or the
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directors, officers, employees or other Indemnitees of the Company or any ofits direct or indirect subsidiaries, (i) unless such indemnification is expresslyrequired to be made by law, (ii) unless the proceeding was authorized by the Boardof Directors of the Company, (iii) unless such indemnification is provided by theCompany, in its sole discretion, pursuant to the powers vested in the Company underapplicable law, or (iv) except as provided in Sections 11 and 13 hereof.     3. Actions or Proceedings Other Than an Action by or in the Right of the Company. TheIndemnitee shall be entitled to the indemnification rights provided in this Section 3 if theIndemnitee was or is a party or witness or is threatened to be a party or witness to anythreatened, pending or completed action, suit or proceeding, whether civil, criminal,administrative or investigative in nature, other than an action by or in the right of the Company,by reason of the fact that the Indemnitee is or was a director, officer, employee, agent orfiduciary of the Company, or any of its direct or indirect subsidiaries, or is or was serving atthe request of the Company, or any of its direct or indirect subsidiaries, as a director, officer,employee, agent or fiduciary of any other entity, including, but not limited to, anothercorporation, partnership, limited liability company, employee benefit plan, joint venture, trust orother enterprise, or by reason of any act or omission by him/her in such capacity. Pursuant tothis Section 3, the Indemnitee shall be indemnified against all Expenses, judgments, penalties(including excise and similar taxes), fines and amounts paid in settlement which were actually andreasonably incurred by the Indemnitee in connection with such action, suit or proceeding(including, but not limited to, the investigation, defense or appeal thereof), if the Indemniteeacted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed tothe best interests of the Company, and, with respect to any criminal action or proceeding, had noreasonable cause to believe his/her conduct was unlawful.     4. Actions by or in the Right of the Company. The Indemnitee shall be entitled to theindemnification rights provided in this Section 4 if the Indemnitee was or is a party or witness oris threatened to be made a party or witness to any threatened, pending or completed action, suit orproceeding brought by or in the right of the Company to procure a judgment in its favor by reasonof the fact that the Indemnitee is or was a director, officer, employee, agent or fiduciary of theCompany, or any of its direct or indirect subsidiaries, or is or was serving at the request of theCompany, or any of its direct or indirect subsidiaries, as a director, officer, employee, agent orfiduciary of another entity, including, but not limited to, another corporation, partnership,limited liability company, employee benefit plan, joint venture, trust or other enterprise, or byreason of any act or omission by him/her in any such capacity. Pursuant to this Section 4, theIndemnitee shall be indemnified against all Expenses actually and reasonably incurred by him/her inconnection with the defense or settlement of such action, suit or proceeding (including, but notlimited to the investigation, defense or appeal thereof), if the Indemnitee acted in good faith andin a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of theCompany; provided however, that no such indemnification shall be made in respect of any claim,issue, or matter as to which the Indemnitee shall have been adjudged to be liable to the Company,unless and only to the extent that the Court of Chancery of the State of Delaware or the court inwhich such action, suit or proceeding was brought shall determine upon application that, despitethe adjudication of liability but in view of all the circumstances of the case, the Indemnitee isfairly and reasonably
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entitled to be indemnified against such Expenses actually and reasonably incurred by him/herwhich such court shall deem proper.     5. Good Faith Definition. For purposes of this Agreement, the Indemnitee shall bedeemed to have acted in good faith and in a manner the Indemnitee reasonably believed to be in ornot opposed to the best interests of the Company, or, with respect to any criminal action orproceeding to have had no reasonable cause to believe the Indemnitee’s conduct was unlawful, ifsuch action was based on (i) the records or books of the account of the Company or otherenterprise, including financial statements; (ii) information supplied to the Indemnitee by theofficers of the Company or other enterprise in the course of their duties; (iii) the advice oflegal counsel for the Company or other enterprise; or (iv) information or records given in reportsmade to the Company or other enterprise by an independent certified public accountant or by anappraiser or other expert selected with reasonable care by the Company or other enterprise.     6. Indemnification for Expenses of Successful Party. Notwithstanding the otherprovisions of this Agreement, to the extent that the Indemnitee has served on behalf of theCompany, or any of its direct or indirect subsidiaries, as a witness or other participant in anyclass action or proceeding, or has been successful, on the merits or otherwise, in defense of anyaction, suit or proceeding referred to in Section 3 and 4 hereof, or in defense of any claim, issueor matter therein, including, but not limited to, the dismissal of any action without prejudice,the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by theIndemnitee in connection therewith, regardless of whether or not the Indemnitee has met theapplicable standards of Section 3 or 4 and without any determination pursuant to Section 8.     7. Partial Indemnification. If the Indemnitee is entitled under any provision of thisAgreement to indemnification by the Company for some or a portion of the Expenses, judgments, finesand amounts paid in settlement actually and reasonably incurred by the Indemnitee in connectionwith the investigation, defense, appeal or settlement of such suit, action, investigation orproceeding described in Section 3 or 4 hereof, but is not entitled to indemnification for the totalamount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of suchExpenses, judgments, penalties, fines and amounts paid in settlement actually and reasonablyincurred by the Indemnitee to which the Indemnitee is entitled.     8. Procedure for Determination of Entitlement to Indemnification. (a) To obtainindemnification under this Agreement, the Indemnitee shall submit to the Company a written request,including documentation and information which is reasonably available to the Indemnitee and isreasonably necessary to determine whether and to what extent the Indemnitee is entitled toindemnification. The Secretary of the Company shall, promptly upon receipt of a request forindemnification, advise the Board of Directors in writing that the Indemnitee has requestedindemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’srequest for indemnification hereunder shall be borne by the Company. The Company herebyindemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by the Indemniteeunder the immediately preceding sentence irrespective of the outcome of the determination of theIndemnitee’s entitlement to indemnification.
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     (b) Upon written request by the Indemnitee for indemnification pursuant to Section 3 or 4hereof, the entitlement of the Indemnitee to indemnification pursuant to the terms of thisAgreement shall be determined by the following person or persons, who shall be empowered to makesuch determination: (i) if a Change in Control (as hereinafter defined) shall have occurred, byIndependent Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing thatsuch determination be made by the Board of Directors (or a committee thereof) in the mannerprovided for in clause (ii) of this Section 8(b)) in a written opinion to the Board of Directors, acopy of which shall be delivered to the Indemnitee; or (ii) if a Change in Control shall not haveoccurred, (A)(1) by the Board of Directors of the Company, by a majority vote of DisinterestedDirectors (as hereinafter defined) even though less than a quorum, or (2) by a committee ofDisinterested Directors designated by majority vote of Disinterested Directors, even though lessthan a quorum, or (B) if there are no such Disinterested Directors or, even if there are suchDisinterested Directors, if the Board of Directors, by the majority vote of DisinterestedDirectors, so directs, by Independent Counsel in a written opinion to the Board of Directors, acopy of which shall be delivered to the Indemnitee. Such Independent Counsel shall be selected bythe Board of Directors and approved by the Indemnitee. Upon failure of the Board of Directors toso select, or upon failure of the Indemnitee to so approve, such Independent Counsel shall beselected by the Chancellor of the State of Delaware or such other person as the Chancellor shalldesignate to make such selection. Such determination of entitlement to indemnification shall bemade not later than 45 days after receipt by the Company of a written request for indemnification.If the person making such determination shall determine that the Indemnitee is entitled toindemnification as to part (but not all) of the application for indemnification, such person shallreasonably prorate such part of indemnification among such claims, issues or matters. If it is sodetermined that the Indemnitee is entitled to indemnification, payment to the Indemnitee shall bemade within ten days after such determination.     9. Presumptions and Effect of Certain Proceedings. (a) In making a determinationwith respect to entitlement to indemnification, the Indemnitee shall be presumed to be entitled toindemnification hereunder and the Company shall have the burden of proof in the making of anydetermination contrary to such presumption.     (b) If the Board of Directors, or such other person or persons empowered pursuant to Section 8to make the determination of whether the Indemnitee is entitled to indemnification, shall havefailed to make a determination as to entitlement to indemnification within 45 days after receipt bythe Company of such request, the requisite determination of entitlement to indemnification shall bedeemed to have been made and the Indemnitee shall be absolutely entitled to such indemnification,absent actual and material fraud in the request for indemnification or a prohibition ofindemnification under applicable law. The termination of any action, suit, investigation orproceeding described in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upona plea of *nolo contendere*or its equivalent, shall not, of itself: (a) create a presumption thatthe Indemnitee did not act in good faith and in a manner which he/she reasonably believed to be inor not opposed to the best interests of the Company, and, with respect to any criminal action orproceeding, that the Indemnitee has reasonable cause to believe that the Indemnitee’s conduct wasunlawful; or (b) otherwise adversely affect the rights of the Indemnitee to indemnification, exceptas may be provided herein.
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     10. Advancement of Expenses. All reasonable Expenses actually incurred by theIndemnitee in connection with any threatened or pending action, suit or proceeding shall be paid bythe Company in advance of the final disposition of such action, suit or proceeding, if so requestedby the Indemnitee, within 20 days after the receipt by the Company of a statement or statementsfrom the Indemnitee requesting such advance or advances. The Indemnitee may submit such statementsfrom time to time. The Indemnitee’s entitlement to such Expenses shall include those incurred inconnection with any proceeding by the Indemnitee seeking an adjudication or award in arbitrationpursuant to this Agreement. Such statement or statements shall reasonably evidence the Expensesincurred by the Indemnitee in connection therewith and shall include or be accompanied by a writtenaffirmation by the Indemnitee of the Indemnitee’s good faith belief that the Indemnitee has met thestandard of conduct necessary for indemnification under this Agreement and an undertaking by or onbehalf of the Indemnitee to repay such amount if it is ultimately determined that the Indemnitee isnot entitled to be indemnified against such Expenses by the Company pursuant to this Agreement orotherwise. Each written undertaking to pay amounts advanced must be an unlimited generalobligation but need not be secured, and shall be accepted without reference to financial ability tomake repayment.     11. Remedies of the Indemnitee in Cases of Determination not to Indemnify or to AdvanceExpenses. In the event that a determination is made that the Indemnitee is not entitled toindemnification hereunder or if the payment has not been timely made following a determination ofentitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not advancedpursuant to Section 10, the Indemnitee shall be entitled to a final adjudication in an appropriatecourt of the State of Delaware or any other court of competent jurisdiction of the Indemnitee’sentitlement to such indemnification or advance. Alternatively, the Indemnitee may, at theIndemnitee’s option, seek an award in arbitration to be conducted by a single arbitrator pursuantto the rules of the American Arbitration Association, such award to be made within 60 daysfollowing the filing of the demand for arbitration. The Company shall not oppose the Indemnitee’sright to seek any such adjudication or award in arbitration or any other claim. Such judicialproceeding or arbitration shall be made *de novo*, and the Indemnitee shall not be prejudiced byreason of a determination (if so made) that the Indemnitee is not entitled to indemnification. Ifa determination is made or deemed to have been made pursuant to the terms of Section 8 or Section 9hereof that the Indemnitee is entitled to indemnification, the Company shall be bound by suchdetermination and shall be precluded from asserting that such determination has not been made orthat the procedure by which such determination was made is not valid, binding and enforceable. TheCompany further agrees to stipulate in any such court or before any such arbitrator that theCompany is bound by all the provisions of this Agreement and is precluded from making anyassertions to the contrary. If the court or arbitrator shall determine that the Indemnitee isentitled to any indemnification hereunder, the Company shall pay all reasonable Expenses actuallyincurred by the Indemnitee in connection with such adjudication or award in arbitration (including,but not limited to, any appellate proceedings).     12. Notification and Defense of Claim. Promptly after receipt by the Indemnitee ofnotice of the commencement of any action, suit or proceeding, the Indemnitee will, if a claim inrespect thereof is to be made against the Company under this Agreement, notify the Company inwriting of the commencement thereof; but the omission to so notify the Company will not relieve theCompany from any liability that it may have to the Indemnitee otherwise than under this
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Agreement or otherwise, except to the extent that the Company may suffer material prejudice byreason of such failure. Notwithstanding any other provision of this Agreement, with respect to anysuch action, suit or proceeding as to which the Indemnitee gives notice to the Company of thecommencement thereof:     (a) The Company will be entitled to participate therein at its own expense.     (b) Except as otherwise provided in this Section 12(b), to the extent that itmay wish, the Company, jointly with any other indemnifying party similarly notified,shall be entitled to assume the defense thereof with counsel reasonably satisfactoryto the Indemnitee. After notice from the Company to the Indemnitee of its electionto so assume the defense thereof, the Company shall not be liable to the Indemniteeunder this Agreement for any legal or other Expenses subsequently incurred by theIndemnitee in connection with the defense thereof other than reasonable costs ofinvestigation or as otherwise provided below. The Indemnitee shall have the rightto employ the Indemnitee’s own counsel in such action or lawsuit, but the fees andExpenses of such counsel incurred after notice from the Company of its assumption ofthe defense thereof shall be at the expense of the Indemnitee unless (i) theemployment of counsel by the Indemnitee has been authorized by the Company, (ii) theIndemnitee shall have reasonably concluded that there may be a conflict of interestbetween the Company and the Indemnitee in the conduct of the defense of such actionand such determination by the Indemnitee shall be supported by an opinion ofcounsel, which opinion shall be reasonably acceptable to the Company, or (iii) theCompany shall not in fact have employed counsel to assume the defense of the action,in each of which cases the fees and Expenses of counsel shall be at the expense ofthe Company. The Company shall not be entitled to assume the defense of any action,suit or proceeding brought by or on behalf of the Company or as to which theIndemnitee shall have reached the conclusion provided for in clause (ii) above.     (c) The Company shall not be liable to indemnify the Indemnitee under thisAgreement for any amounts paid in settlement of any action, suit or proceedingeffected without its written consent, which consent shall not be unreasonablywithheld. The Company shall not be required to obtain the consent of the Indemniteeto settle any action, suit or proceeding which the Company has undertaken to defendif the Company assumes full and sole responsibility for such settlement and suchsettlement grants the Indemnitee a complete and unqualified release in respect ofany potential liability.     (d) If, at the time of the receipt of a notice of a claim pursuant to thisSection 12, the Company has director and officer liability insurance in effect, theCompany shall give prompt notice of the commencement of such proceeding to theinsurers in accordance with the procedures set forth in the respective policies.The Company shall thereafter take all necessary or desirable action to cause suchinsurers to pay, on behalf of the Indemnitee, all amounts payable as a result ofsuch proceeding in accordance with the terms of the policies.
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     13. Other Right to Indemnification. The indemnification and advancement of Expensesprovided by this Agreement are cumulative, and not exclusive, and are in addition to any otherrights to which the Indemnitee may now or in the future be entitled under any provision of theBy-laws or Certificate of the Company, any vote of stockholders or Disinterested Directors, anyprovision of law or otherwise. Except as required by applicable law, the Company shall not adoptany amendment to its By-laws or Certificate the effect of which would be to deny, diminish orencumber the Indemnitee’s right to indemnification under this Agreement.     14. Director and Officer Liability Insurance. The Company shall maintain directors’and officers’ liability insurance for so long as the Indemnitee’s services are covered hereunder,provided and to the extent that such insurance is available on a commercially reasonable basis. Inthe event the Company maintains directors’ and officers’ liability insurance, the Indemnitee shallbe named as an insured in such manner as to provide the Indemnitee the same rights and benefits asare accorded to the most favorably insured of the Company’s officers or directors. However, theCompany agrees that the provisions hereof shall remain in effect regardless of whether liability orother insurance coverage is at any time obtained or retained by the Company, except that anypayments made to, or on behalf of, the Indemnitee under an insurance policy shall reduce theobligations of the Company hereunder.     15. Spousal Indemnification. The Company will indemnify the Indemnitee’s spouse towhom the Indemnitee is legally married at any time the Indemnitee is covered under theindemnification provided in this Agreement (even if the Indemnitee did not remain married to him orher during the entire period of coverage) against any pending or threatened action, suit,proceeding or investigation for the same period, to the same extent and subject to the samestandards, limitations, obligations and conditions under which the Indemnitee is providedindemnification herein, if the Indemnitee’s spouse (or former spouse) becomes involved in a pendingor threatened action, suit, proceeding or investigation solely by reason of his or her status asthe Indemnitee’s spouse, including, without limitation, any pending or threatened action, suit,proceeding or investigation that seeks damages recoverable from marital community property,jointly-owned property or property purported to have been transferred from the Indemnitee tohis/her spouse (or former spouse). The Indemnitee’s spouse or former spouse also may be entitledto advancement of Expenses to the same extent that the Indemnitee is entitled to advancement ofExpenses herein. The Company may maintain insurance to cover its obligation hereunder with respectto the Indemnitee’s spouse (or former spouse) or set aside assets in a trust or escrow fund forthat purpose.     16. Intent. This Agreement is intended to be broader than any statutoryindemnification rights applicable in the State of Delaware and shall be in addition to any otherrights the Indemnitee may have under the Company’s Certificate, By-laws, applicable law orotherwise. To the extent that a change in applicable law (whether by statute or judicial decision)permits greater indemnification by agreement than would be afforded currently under the Company’sCertificate, By-laws, applicable law or this Agreement, it is the intent of the parties that theIndemnitee enjoy by this Agreement the greater benefits so afforded by such change. In the eventof any change in applicable law, statute or rule which narrows the right of a Delaware corporationto indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, suchchange, to the extent not otherwise required by such law, statute or rule to be
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applied to this Agreement, shall have no effect on this Agreement or the parties’ rights andobligations hereunder.     17. Attorney’s Fees and Other Expenses to Enforce Agreement. In the event that theIndemnitee is subject to or intervenes in any action, suit or proceeding in which the validity orenforceability of this Agreement is at issue or seeks an adjudication or award in arbitration toenforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement theIndemnitee, if he/she prevails in whole or in part in such action, shall be entitled to recoverfrom the Company and shall be indemnified by the Company against any actual expenses for attorneys’fees and disbursements reasonably incurred by the Indemnitee.     18. Effective Date. The provisions of this Agreement shall cover claims, actions,suits or proceedings whether now pending or hereafter commenced and shall be retroactive to coveracts or omissions or alleged acts or omissions which heretofore have taken place. The Companyshall be liable under this Agreement, pursuant to Sections 3 and 4 hereof, for all acts of theIndemnitee while serving as a director and/or officer, notwithstanding the termination of theIndemnitee’s service, if such act was performed or omitted to be performed during the term of theIndemnitee’s service to the Company.     19. Duration of Agreement. This Agreement shall survive and continue even though theIndemnitee may have terminated his/her service as a director, officer, employee, agent or fiduciaryof the Company or as a director, officer, employee, agent or fiduciary of any other entity,including, but not limited to another corporation, partnership, limited liability company, employeebenefit plan, joint venture, trust or other enterprise or by reason of any act or omission by theIndemnitee in any such capacity. This Agreement shall be binding upon the Company and itssuccessors and assigns, including, without limitation, any corporation or other entity which mayhave acquired all or substantially all of the Company’s assets or business or into which theCompany may be consolidated or merged, and shall inure to the benefit of the Indemnitee and his/herspouse, successors, assigns, heirs, devisees, executors, administrators or other legalrepresentations. The Company shall require any successor or assignee (whether direct or indirect,by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/orassets of the Company, by written agreement in form and substance reasonably satisfactory to theCompany and the Indemnitee, expressly to assume and agree to perform this Agreement in the samemanner and to the same extent that the Company would be required to perform if no such successionor assignment had taken place.     20. Disclosure of Payments. Except as expressly required by any Federal or statesecurities laws or other Federal or state law, neither party shall disclose any payments under thisAgreement unless prior approval of the other party is obtained.     21. Severability. If any provision or provisions of this Agreement shall be heldinvalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality andenforceability of the remaining provisions of this Agreement (including, but not limited to, allportions of any Sections of this Agreement containing any such provision held to be invalid,illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to thefullest extent possible, the provisions of this Agreement (including, but not limited to, allportions of any paragraph of this Agreement containing any such provision held to be invalid,
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illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall beconstrued so as to give effect to the intent manifest by the provision held invalid, illegal orunenforceable.     22. Counterparts. This Agreement may be executed by one or more counterparts, each ofwhich shall for all purposes be deemed to be an original but all of which together shall constituteone and the same Agreement. Only one such counterpart signed by the party against whomenforceability is sought shall be required to be produced to evidence the existence of thisAgreement.     23. Captions. The captions and headings used in this Agreement are inserted forconvenience only and shall not be deemed to constitute part of this Agreement or to affect theconstruction thereof.     24. Definitions. For purposes of this Agreement:     (a) “Change in Control” shall mean a change in control of the Company occurringafter the date hereof of a nature that would be required to be reported in responseto Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar itemon any similar schedule or form) promulgated under the Act, whether or not theCompany is then subject to such reporting requirement; provided,however, that, without limitation, a Change in Control shall include: (i)the acquisition (other than from the Company) after the date hereof by any person,entity or “group” within the meaning of Section 13(d)(3) or 14(d)(2) of the Act(excluding, for this purpose, the Company or its subsidiaries, any employee benefitplan of the Company or its subsidiaries which acquires beneficial ownership ofvoting securities of the Company, any qualified institutional investor who meets therequirements of Rule 13d-1(b)(1) promulgated under the Act, Warburg Pincus LLC andits affiliates, and The Vertical Group, L.P. and its affiliates) of beneficialownership (within the meaning of Rule 13d-3 promulgated under the Act) of 20% ormore of either the then-outstanding shares of common stock or the combined votingpower of the Company’s then-outstanding capital stock entitled to vote generally inthe election of directors; (ii) individuals who, as of the date hereof, constitutethe Board of Directors (the “Incumbent Board”) ceasing for any reason to constituteat least a majority of the Board of Directors, provided that any person becoming adirector subsequent to the date hereof whose election, or nomination for election bythe Company’s stockholders was approved by a vote of at least a majority of thedirectors then comprising the Incumbent Board (other than an election or nominationof an individual whose initial assumption of office is in connection with an actualor threatened election contest relating to the election of the directors of theCompany) shall be, for purposes of this Agreement, considered as though such personwere a member of the Incumbent Board; or (iii) approval by the stockholders of theCompany of (A) a reorganization, merger, or consolidation, in each case, withrespect to which persons who were the stockholders of the Company immediately priorto such reorganization, merger, or consolidation do not, immediately thereafter, ownmore than 50% of the
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combined voting power entitled to vote generally in the election of directorsof the reorganized, merged, consolidated or other surviving corporation’sthen-outstanding voting securities, (B) a liquidation or dissolution of the Company,or (C) the sale of all or substantially all of the assets of the Company.     (b) “Disinterested Director” shall mean a director of the Company who is not orwas not a party to the action, suit, investigation or proceeding in respect of whichindemnification is being sought by the Indemnitee.     (c) “Expenses” shall include all attorneys’ fees, retainers, court costs,transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,printing and binding costs, telephone charges, postage, delivery service fees, andall other disbursements or expenses incurred in connection with prosecuting,defending, preparing to prosecute or defend, investigating or being or preparing tobe a witness in any threatened, pending or completed action, suit or proceeding,whether civil, criminal, administrative or investigative in nature.     (d) “Independent Counsel” shall mean a law firm or a member of a law firm thatneither is presently nor in the past five years has been retained to represent (i)the Company or the Indemnitee in any matter material to either such party or (ii)any other party to the action, suit, investigation or proceeding giving rise to aclaim for indemnification hereunder. Notwithstanding the foregoing, the term“Independent Counsel” shall not include any person who, under the applicablestandards of professional conduct then prevailing, would have a conflict of interestin representing either the Company or the Indemnitee in an action to determine theIndemnitee’s right to indemnification under this Agreement.     25. Entire Agreement, Modification and Waiver. This Agreement constitutes the entireagreement and understanding of the parties hereto regarding the subject matter hereof, and nosupplement, modification or amendment of this Agreement shall be binding unless executed in writingby both parties hereto. No waiver of any of the provisions of this Agreement shall be deemed orshall constitute a waiver of any other provisions hereof (whether or not similar) nor shall suchwaiver constitute a continuing waiver. No supplement, modification or amendment of this Agreementshall limit or restrict any right of the Indemnitee under this Agreement in respect of any act oromission of the Indemnitee prior to the effective date of such supplement, modification oramendment unless expressly provided therein.     26. Notices. All notices, requests, demands or other communications hereunder shallbe in writing and shall be deemed to have been duly given if (i) delivered by hand with receiptacknowledged by the party to whom said notice or other communication shall have been directed, (ii)mailed by certified or registered mail, return receipt requested with postage prepaid, on the dateshown on the return receipt or (iii) delivered by facsimile transmission on the date shown on thefacsimile machine report:
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 (a) If to the Indemnitee to:  (b) If to the Company, to:    ev3 Inc.