ex109.htm


    Exhibit
      10.9

     

    AGREEMENT
      FOR A MEMBER OF THE BOARD
      OF BUSINESS ADVISORS

    


    THIS
      AGREEMENT FOR A MEMBER OF THE
      BOARD OF BUSINESS ADVISORS (“Agreement”) is made and entered into as of this
      ____ day of July, 2007,  (the “Effective Date”), by and between Sun
      Energy Solar, Inc., a Delaware corporation, (“Company”) and Kenneth I. Juster,
      an individual (“Advisor”).

    


    Recital

    


    As
      part
      of its ongoing business, the Company desires to retain highly qualified
      individuals to advise the Company with respect to certain aspects of the
      Company’s business.  In furtherance thereof, the Company desires to
      retain Advisor as a consultant and member of the Company’s Advisory Board, and
      the Company and Advisor desire to enter into this Agreement.

    


    1.           Term.

    


    (a)        This
      Agreement shall commence upon the Effective Date and shall continue thereafter
      for a period of three (3) years, unless earlier terminated in accordance with
      this Agreement.

    


    (b)        Notwithstanding
      the foregoing and provided that Advisor has neither resigned nor been terminated
      in accordance with this Agreement, Company agrees to use its best efforts to
      retain the Advisor at least for a period of one (1) year following expiration
      of
      the Agreement.

    


    2.           Position
      and Responsibilities.

    


    (a)           Commencing
      on the Effective Date, the Company hereby retains Advisor, and Advisor hereby
      agrees to serve, as a member of the Company’s Advisory Board (the “Advisory
      Board”) and as a consultant to the Company.  As consultant and member
      of the Advisory Board, Advisor agrees to devote his best efforts to provide
      the
      following services:  (a) attending any meetings of the Advisory Board;
      (b) performing the duties of an Advisory Board member at such meetings as
      established from time to time by mutual agreement of the Parties, including,
      without limitation, meeting with Company employees, consultants and others,
      reviewing the Company’s goals and assisting in the planning for and execution of
      the Company’s goals and providing advice, support, techniques and improvements
      in the Company’s business activities; and (c) providing consulting services to
      the Company at the Company’s request, including a reasonable amount of informal
      consultation over the telephone or in person one day per month or otherwise
      as
      requested by the Company.  The services to be provided by Advisor
      hereunder are referred to collectively herein as the “Services.”

    


    (b)           Advisor
      represents that Advisor’s performance of all of the terms of this Agreement and
      the performance of the Services for the Company do not and will not breach
      or
      conflict with any agreement with a third party, including an agreement to keep
      in confidence any proprietary information of another entity acquired by Advisor
      in confidence or in trust prior to the date of this Agreement or during the
      term
      hereof.

    


    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    3.           Compensation
      and Benefits.

    


    (a)        Advisor’s
      Fee (the “Advisor’s Fee”).  In consideration of the services to be
      rendered under this Agreement, Company shall provide to Advisor upon the
      Effective Date  a non-employee Advisor’s Fee of (1) one million
      (1,000,000) shares of Sun Energy Solar, Inc. restricted common stock that shall
      vest immediately upon issuance, and (2) a nonstatutory option to acquire two
      million (2,000,000) shares of Sun Energy Solar, Inc. common stock, vesting
      one-half (1/2) on the first anniversary of the Effective Date and one-half
      (1/2)
      on the second anniversary of the Effective Date, in each case provided that
      Advisor remains an advisor to the Company on the applicable vesting
      date.  Each such option shall have an exercise price equal to the fair
      market value of the common stock on the date of the grant.

    


    (b)           Benefits.  Advisor
      shall not be eligible to participate in any benefits made generally available
      by
      Company, including, but not limited to, vacation leave and pay, sick leave
      and
      pay, retirement plan and related benefits, social security, workers compensation
      insurance, disability insurance, employment insurance benefits, and other
      benefits of any kind provided by the Company to its employees.

    


    (c)           Expenses.  The
      Company shall reimburse Advisor for his reasonable, out-of-pocket, pre-approved
      expenses as incurred by Advisor in connection with its performance under this
      Agreement.  Advisor shall not incur any expenses without prior consent
      of the Company.  Advisor agrees to provide the Company with access to
      such receipts, ledgers and other records as may be reasonably appropriate for
      the Company to verify the amount and nature of such expenses.

    


    (d)           Taxes.  Advisor
      shall be responsible to pay any and all applicable taxes that result from this
      Consulting Agreement including, but not limited to, federal and state income
      taxes. Advisor shall have sole responsibilities for the withholding of any
      and
      all applicable federal and state income taxes, unemployment insurance tax,
      social security tax, and other withholding with respect to payments made by
      Advisor under this Agreement.

    


    (e)           Indemnification.  Company
      will indemnify and defend Advisor against liability incurred in the performance
      of the Services, as set forth in the attachment in Exhibit A.

    


    4.           Independent
      Contractor.

    


    The
      Parties understand and agree that
      Advisor is an independent contractor and not an employee of the
      Company.  Advisor has no authority to obligate or bind the Company by
      contract or otherwise.  Advisor will not be eligible for any employee
      benefits, nor will Company make deductions from Advisor’s fees for taxes (except
      as otherwise required by applicable law or regulation).  Any taxes
      imposed on Advisor due to activities performed hereunder will be the sole
      responsibility of Advisor.

    


    5.           Termination.

    


    (a)           Right
      to Terminate.  At any time, Advisor may be terminated and this
      Agreement shall automatically terminate upon the effective date of such
      termination.

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    Advisor
      may resign at any time during
      the term of this Agreement, and this Agreement shall automatically terminate
      upon the effective date of such resignation.  Notwithstanding anything
      to the contrary contained in or arising from this Agreement or any statements,
      policies, or practices of Company, neither Advisor nor Company shall be required
      to provide any advance notice or any reason or cause for termination of
      Advisor’s status.

    


    (b)           Effect
      of Termination as Advisor.  Upon termination of this Agreement,
      Company shall pay to Advisor all compensation and benefits to which Advisor
      is
      entitled up through the date of termination.  Thereafter, all of
      Company’s obligations under this Agreement shall cease, except as provided in
      Sections 3(a), 3(c), 3(e) and 6.

    


    6.           Termination
      Obligations.

    


    (a)           Advisor
      agrees that all property, including, without limitation, all equipment, tangible
      proprietary information, documents, records, contracts, and computer-generated
      materials provided to or prepared by Advisor incident to his services belong
      to
      Company and shall be promptly returned at the request of Company within a
      reasonable period following termination of this Agreement.

    


    (b)           Upon
      termination of this Agreement, Advisor shall be deemed to have resigned from
      all
      offices then held with Company by virtue of his position.  Advisor
      agrees that following any termination of this Agreement, he shall cooperate
      with
      Company in the winding up or transferring to other advisors of any pending
      work
      and shall also cooperate with Company (to the extent allowed by law, and at
      Company’s expense) in the defense of any action brought by any third party
      against Company that relates to the Services.

    


    (c)                 The
      Company and Advisor agree that their obligations under this Section, as well
      as
      Sections 3(b), 3(c), 3(d), 3(e), 5(b), 7 and 8, shall survive the termination
      of
      this Agreement.

    


    7.           Nondisclosure
      Obligations.

    


    (a)           Receipt
      of Proprietary Information.  Advisor recognizes and acknowledges that,
      in the course of the engagement of Advisor by the Company, and as a result
      of
      the confidential relationship with the Company established thereby, Advisor
      shall be receiving proprietary information of the Company and other confidential
      information, including without limitation, technology and information relating
      to the Company’s business or its patents, inventions, software, know-how and
      other property rights (“Proprietary Information”), and developing additional
      know-how and proprietary information owned by the Company which will become
      Proprietary Information, and that such Proprietary Information are highly
      valuable assets of the Company; provided, that technology and information shall
      not be considered Proprietary Information of the Company which are (1) known
      to
      Advisor prior to execution of this Agreement or the Non-Disclosure Agreement,
      defined herein, (2) divulged by the Company to another without confidentiality
      restrictions; (3) disclosed to Advisor by a third party or otherwise who is
      not
      in breach of any confidentiality obligation to the Company; (4) publicly used,
      known or available, not due to any unauthorized act by Advisor; or (5) disclosed
      by operation of law or in response to a subpoena or order by a court of proper
      jurisdiction.

     

    (b)           Nondisclosure.  Advisor
      shall retain in strict confidence and shall not use for any purpose whatsoever
      or divulge, disseminate or disclose to any third party (other than in the
      furtherance of the business purposes of the Company and at the express, written
      request of the Company) any Proprietary Information, all of which are deemed
      confidential and proprietary.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    (c)           Ownership.  Any
      methods, developments, know-how, inventions and/or improvements whether or
      not
      patentable or subject to intellectual property protection including, but not
      limited to, the Proprietary Information, and all related materials that are
      (1) developed by Advisor in connection with the performance of the Services
      after the Effective Date; or (2) paid for or provided by the Company in
      connection with the performance of the Services before or after the Effective
      Date, (collectively “Developed Property”) shall be and remain the property of
      the Company.

     

    (d)           Works
      Made for Hire.  In no way limiting the foregoing, all Developed
      Property conceived or made by Advisor in connection with the Services are
“supplementary works” and “works made for hire” (as those terms are defined in
      the United States Patent Trademark and Copyright Laws, 17 U.S.C. § 101) and
      owned by the Company; and Advisor hereby assigns to the Company all Developed
      Property which Advisor may conceive of or make in connection with the
      performance of the Services.

     

    (e)           Disclosure;
      Assignment.  Advisor shall immediately disclose to Company all
      Developed Property.  Advisor shall promptly shall execute and deliver
      to the Company any instruments deemed necessary by the Company to effect
      disclosure and assignment by Advisor to the Company of any Developed
      Property.  Upon the request of the Company and at the Company’s
      expense, Advisor shall execute patent and copyright applications and any other
      instruments deemed necessary by the Company for the prosecution of such patent
      applications or the acquisition of letters patent or registration of copyrights
      in the United States and/or foreign countries which may be based in whole or
      in
      part on Developed Property.  Notwithstanding the fact that Company may
      request additional written assignments or applications, this assignment shall
      be
      deemed sufficient to convey all of Advisor’s right, title and interest in any
      Developed Property.

     

    (f)           Prior
      Non-Disclosure Agreement.  The parties acknowledge entering into a
      separate non-disclosure agreement relating to the Company’s confidential
      information, attached as Exhibit B (“Non-Disclosure
      Agreement”).  The terms of the Non-Disclosure Agreement are
      incorporated herein by this reference.  In the event of a conflict
      between the Non-Disclosure Agreement and this Agreement, the terms providing
      greater protection to the Company and its confidential information and
      Proprietary Information shall be determinative.

    


    (g)           Injunctive
      Relief.  If Advisor violates this Section 7 of this Agreement, the
      Company (in addition to any other and additional rights or remedies it may
      have
      at law, in equity or by statute) shall be entitled to immediate and permanent
      injunctive relief, it being agreed that the damages which the Company would
      sustain upon such violation are difficult or impossible to ascertain in
      advance.  The posting of a bond shall not be required as a
      pre-condition to such injunctive relief.

     

    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    8.           Dispute
      Resolution.

    


    (a)           Jurisdiction
      and Venue.  The parties agree that any suit, action, or proceeding
      between Advisor (and his successors, and assigns) and Company (and its
      affiliates, shareholders, advisors, officers, employees, members, agents,
      successors, attorneys, and assigns) relating to the Agreement shall be brought
      in either the United States District Court for the District of Florida or in
      an
      appropriate Florida state court and that the parties shall submit to the
      jurisdiction of such court.  The parties irrevocably waive, to the
      fullest extent permitted by law, any objection the party may have to the laying
      of venue for any such suit, action or proceeding brought in such
      court.  If any one or more provisions of this Section shall for any
      reason be held invalid or unenforceable, it is the specific intent of the
      parties that such provisions shall be modified to the minimum extent necessary
      to make it or its application valid and enforceable.

    


    (b)           Attorneys’
      Fees.  In the event there is any dispute concerning this Agreement or
      the performance of any party hereto pursuant to the terms of this Agreement,
      and
      any party hereto retains counsel for the purpose of enforcing any of the
      provisions of this Agreement or asserting the terms of this Agreement in defense
      of any suit filed against said party, each party shall be solely responsible
      for
      its own costs and attorney’s fees incurred in connection with the dispute
      irrespective of whether or not a lawsuit is actually commenced or prosecuted
      to
      conclusion.

    


    9.              Entire
      Agreement.

    


    This
      Agreement, including Exhibit A on Indemnification
      and Exculpation and the Non-Disclosure Agreement, are intended to be the final,
      complete, and exclusive statement of the terms of Advisor’s relationship solely
      with respect to his position with Company.  This Agreement and the
      Non-Disclosure Agreement entirely supersede and may not be contradicted by
      evidence of any prior or contemporaneous statements or agreements pertaining
      to
      Advisor’s relationship. Agreements related to Advisor’s ownership of the
      securities are not affected by this Agreement.

    


    10.           Amendments;
      Waivers.

    


    This
      Agreement may not be amended
      except by a writing signed by Advisor and by a duly authorized representative
      of
      the Company other than Advisor.  Failure to exercise any right under
      this Agreement shall not constitute a waiver of such right.

    


    11.           Assignment.

    


    Advisor
      agrees that Advisor will not
      assign any rights or obligations under this Agreement, with the exception of
      Advisor’s ability to assign rights with respect to the
      securities.  Nothing in this Agreement shall prevent the
      consolidation, merger or sale of Company or a sale of all or substantially
      all
      of its assets.

    


    12.           Severability.

    


    If
      any provision of this Agreement
      shall be held by a court or arbitrator to be invalid, unenforceable, or void,
      such provision shall be enforced to fullest extent permitted by law, and the
      remainder of this Agreement shall remain in full force and effect.  In
      the event that the time period or scope of any provision is declared by a court
      or arbitrator of competent jurisdiction to exceed the maximum time period or
      scope that such court or arbitrator deems enforceable, then such court or
      arbitrator shall reduce the time period or scope to the maximum time period
      or
      scope permitted by law.

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    13.           Governing
      Law.

    


    This
      Agreement shall be governed by and
      construed in accordance with the laws of the State of Florida, other than such
      laws, rules, regulations and case law that would result in the application
      of
      the laws of a jurisdiction other than the State of Florida

    


    14.           Interpretation.

    


    This
      Agreement shall be construed as a
      whole, according to its fair meaning, and not in favor of or against any
      party.  Captions are used for reference purposes only and should be
      ignored in the interpretation of the Agreement.

    


    


    15.           Binding
      Agreement.

    


    Each
      party represents and warrants to
      the other that the person(s) signing this Agreement below has authority to
      bind
      the party to this Agreement and that this Agreement will legally bind both
      Company and Advisor.  This Agreement will be binding upon and benefit
      the parties and their heirs, administrators, executors, successors and permitted
      assigns.  To the extent that the practices, policies, or procedures of
      Company, now or in the future, are inconsistent with the terms of this
      Agreement, the provisions of this Agreement shall control.  Any
      subsequent change in Advisor’s duties or compensation will not affect the
      validity or scope of the remainder of this Agreement.

    


    16.           Advisor
      Acknowledgment.

    


    Advisor
      expressly acknowledges that
      Advisor has had the opportunity to consult legal counsel concerning this
      Agreement, that Advisor has read and understands the Agreement, that Advisor
      is
      fully aware of its legal effect, and that Advisor has entered into it freely
      based upon his own judgment and not on any representations or promises other
      than those contained in this Agreement.

    


    17.           Counterparts.

    


    This
      Agreement may be executed in any
      number of counterparts, each of which shall be deemed an original, but all
      of
      which together shall constitute one and the same instrument.

    


    


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    


    18.           Effective
      Date of Agreement.

    


    This
      Agreement is effective as of the
      date first written above.

     

     

    
      	 Sun
              Energy Solar,
              Inc., 	 	 	 Advisor:	 
	 	 	 	 	 
	 	 	 	 	 
	
              By: 

            	 	 	
              By:

            	 
	
              Printed: 

            	 	 	
              Printed:

            	 
	
              Title 

            	 	 	
              Title

            	 




    


         

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    


    EXHIBIT
      A

     

    


     

    Indemnification
      and
      Exculpation

     

    1.  Definitions.

     

    (a)  Expenses.  For
      purposes of this Agreement, the term “expenses” shall be broadly construed and
      shall include, without limitation, all direct and indirect costs of any type
      or
      nature whatsoever (including, without limitation, all attorneys’, witness, or
      other professional fees and related disbursements, and other out-of-pocket
      costs
      of whatever nature), actually and reasonably incurred by Advisor in connection
      with the investigation, defense or appeal of a proceeding or establishing or
      enforcing a right to indemnification under this Agreement, applicable law or
      otherwise, and amounts paid in settlement by or on behalf of Advisor, but shall
      not include any judgments, fines or penalties actually levied against Advisor
      for such individual’s violations of law. The term “expenses” shall also include
      reasonable compensation for time spent by Advisor for which he is not
      compensated by the Company or any subsidiary or third party (i) for any period
      during which Advisor is not an agent, in the employment of, or providing
      services for compensation to, the Company or any subsidiary; and (ii) if the
      rate of compensation and estimated time involved is approved by the directors
      of
      the Company who are not parties to any action with respect to which expenses
      are
      incurred, for Advisor while an agent of, employed by, or providing services
      for
      compensation to, the Company or any subsidiary.

     

    (b)  Proceeding.  For
      purposes of this Agreement, the term “proceeding” shall be broadly construed and
      shall include, without limitation, any threatened, pending, or completed action,
      suit, arbitration, 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 or investigative nature, and whether formal
      or informal in any case, in which Advisor was, is or will be involved as a
      party
      or otherwise by reason of:  (i) the fact that Advisor is or was an
      advisor to or agent of the Company; (ii) the fact that any action taken by
      Advisor or of any action on Advisor’s part while acting as an advisor to the
      Company; or (iii) the fact that Advisor is or was serving at the request of
      the
      Company as a director, officer, employee or agent of another corporation,
      partnership, joint venture, trust, employee benefit plan or other enterprise,
      and in any such case described above, whether or not serving in any such
      capacity at the time any liability or expense is incurred for which
      indemnification, reimbursement, or advancement of expenses may be provided
      under
      this Agreement.

     

    (c)  Subsidiary.  For
      purposes of this Agreement, the term “subsidiary” means any corporation or
      limited liability company of which more than 50% of the outstanding voting
      securities or equity interests are owned, directly or indirectly, by the Company
      and one or more of its subsidiaries, and any other corporation, limited
      liability company, partnership, joint venture, trust, employee benefit plan
      or
      other enterprise of which Advisor is or was serving at the request of the
      Company as a director, officer, employee, agent or fiduciary.

     

    2.  Indemnification.

     

    (a)  Indemnification
      in
      Proceedings.  The Company shall indemnify Advisor to the
      fullest extent permitted by applicable law, as the same may be amended from
      time
      to time (but, only to the extent that such amendment permits Advisor to broader
      indemnification rights than applicable law permitted prior to adoption of such
      amendment), if Advisor is a party to or threatened to be made a party to or
      otherwise involved in any proceeding (including any proceeding by or in the
      right of the Company to procure a judgment in its favor), for any and all
      expenses, actually and reasonably incurred by Advisor in connection with the
      investigation, defense, settlement or appeal of such proceeding.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    (b)  Exceptions.  Any
      provision herein to the contrary notwithstanding, the Company shall not be
      obligated pursuant to the terms of this Agreement to indemnify Advisor on
      account of any proceeding with respect to (i) remuneration paid to Advisor
      if it is determined by final judgment or other final adjudication that such
      remuneration was in violation of law, or (ii) a final judgment or other
      final adjudication that Advisor’s conduct was in bad faith, knowingly fraudulent
      or deliberately dishonest or constituted willful misconduct (but only to the
      extent of such specific determination).  For purposes of the foregoing
      sentence, a final judgment or other adjudication may be reached in either the
      underlying proceeding or action in connection with which indemnification is
      sought or a separate proceeding or action to establish rights and liabilities
      under this Agreement.

     

    3.  Indemnification
      of Expenses of
      Successful Party.  Notwithstanding any other provision of this
      Agreement, to the extent that Advisor has been successful on the merits or
      otherwise in defense of any proceeding or in defense of any claim, issue or
      matter therein, including the dismissal of any action without prejudice, the
      Company shall indemnify Advisor against all expenses actually and reasonably
      incurred in connection with the investigation, defense or appeal of such
      proceeding.

     

    4.  Advancement
      of
      Expenses.  To the extent not prohibited by law, the Company
      shall advance  the expenses incurred by Advisor in connection with any
      proceeding, and such advancement shall be made within twenty (20) days after
      the
      receipt by the Company of a statement or statements requesting such advances
      (which shall include invoices received by Advisor in connection with such
      expenses but, in the case of invoices in connection with legal services, any
      references to legal work performed or to expenditures made that would cause
      Advisor to waive any privilege accorded by applicable law shall not be included
      with the invoice) and upon request of the Company, an undertaking to repay
      the
      advancement of expenses if and to the extent that it is ultimately determined
      by
      a court of competent jurisdiction in a final judgment, not subject to appeal,
      that Advisor is not entitled to be indemnified by the
      Company.  Advances shall be unsecured, interest free and without
      regard to Advisor’s ability to repay the expenses. Advances shall include any
      and all expenses actually and reasonably incurred by Advisor pursuing an action
      to enforce Advisor’s right to indemnification under this Agreement or otherwise
      and this right of advancement, including expenses incurred preparing and
      forwarding statements to the Company to support the advances
      claimed.  Advisor acknowledges that the execution and delivery of this
      Agreement shall constitute an undertaking providing that Advisor shall, to
      the
      fullest extent required by law, repay the advance if and to the extent that
      it
      is ultimately determined by a court of competent jurisdiction in a final
      judgment, not subject to appeal, that Advisor is not entitled to be indemnified
      by the Company.  The right to advances under this Section shall
      continue until final disposition of any proceeding, including any appeal
      therein.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    5.  Notice
      and Other Indemnification
      Procedures.

     

    (a)  Notification
      of
      Proceeding.  Advisor will notify the Company in writing
      promptly 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 Advisor to so notify the Company shall not
      relieve the Company of any obligation which it may have to Advisor under this
      Agreement or otherwise.

     

    (b)  Request
      for Indemnification and
      Indemnification Payments.  Advisor shall notify the Company
      promptly in writing upon receiving notice of any demand, judgment or other
      requirement for payment that Advisor reasonably believes to be subject to
      indemnification under the terms of this Agreement, and shall request payment
      thereof by the Company.  Indemnification payments requested by Advisor
      hereunder shall be made by the Company no later than sixty (60) days after
      receipt of the written request of Advisor.

     

    (c)  Application
      for
      Enforcement.  In the event the Company fails to make timely
      payments as set forth herein, Advisor shall have the right to apply to any
      court
      of competent jurisdiction for the purpose of enforcing Advisor’s right to
      indemnification or advancement of expenses pursuant to this
      Agreement.  In such an enforcement hearing or proceeding, the burden
      of proof shall be on the Company to prove that indemnification or advancement
      of
      expenses to Advisor is not required under this Agreement or permitted by
      applicable law.  Any determination by the Company (including its Board
      of Directors, shareholders or independent counsel) that Advisor is not entitled
      to indemnification hereunder, shall not be a defense by the Company to the
      action nor create any presumption that Advisor is not entitled to
      indemnification or advancement of expenses hereunder.

     

    (d)  Indemnification
      of Certain
      Expenses.  The Company shall indemnify Advisor against all
      expenses incurred in connection with any hearing or proceeding under this
      Section unless the Company prevails in such hearing or proceeding on the
      merits in all material respects.

     

    6.  Assumption
      of
      Defense.  In the event the Company shall be requested by
      Advisor to pay the expenses of any proceeding, the Company, if appropriate,
      shall be entitled to assume the defense of such proceeding, or to participate
      to
      the extent permissible in such proceeding, with counsel reasonably acceptable
      to
      Advisor.  Upon assumption of the defense by the Company and the
      retention of such counsel by the Company, the Company shall not be liable to
      Advisor under this Agreement for any fees of counsel subsequently incurred
      by
      Advisor with respect to the same proceeding, provided that Advisor shall have
      the right to employ separate counsel in such proceeding at Advisor’s sole cost
      and expense.  Notwithstanding the foregoing, if Advisor’s counsel
      delivers a written notice to the Company stating that such counsel has
      reasonably concluded that there may be a conflict of interest between the
      Company and Advisor in the conduct of any such defense or the Company shall
      not,
      in fact, have employed counsel or otherwise actively pursued the defense of
      such
      proceeding within a reasonable time, then in any such event the fees and
      expenses of Advisor’s counsel to defend such proceeding shall be subject to the
      indemnification and advancement of expenses provisions of this
      Agreement.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    7.  Insurance.
To
      the extent that
      the Company maintains an insurance policy or policies providing liability
      insurance for advisors to the Company or of any subsidiary (“Applicable
      Insurance”), Advisor 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 advisor 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
      Applicable Insurance in effect, the Company shall give prompt notice of the
      commencement of such proceeding 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 Advisor, all amounts payable as a result of such proceeding in
      accordance with the terms of such policies.

     

    8.  Nonexclusivity
      and Survival of
      Rights.  The provisions for indemnification and advancement of
      expenses set forth in this Agreement shall not be deemed exclusive of any other
      rights which Advisor may at any time be entitled under any provision of
      applicable law, the Company’s Certificate of Incorporation, Bylaws or other
      agreements, in any court in which a proceeding is brought, and Advisor’s rights
      hereunder shall continue after Advisor has ceased acting as an advisor to or
      agent of the Company and shall inure to the benefit of the heirs, executors,
      administrators and assigns of Advisor.  The obligations and duties of
      the Company to Advisor under this Agreement shall be binding on the Company
      and
      its successors and assigns until terminated in accordance with its
      terms.  The Company shall require 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, expressly to 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.

     

    No
      amendment, alteration or repeal of this Agreement or of any provision hereof
      shall limit or restrict any right of Advisor under this Agreement in respect
      of
      any action taken or omitted by such Advisor in his or her corporate status
      prior
      to such amendment, alteration or repeal.  To the extent that a change
      in applicable law, whether by statute or judicial decision, permits greater
      indemnification or advancement of expenses than would be afforded currently
      under the Company’s Certificate of Incorporation, Bylaws and this Agreement, it
      is the intent of the parties hereto that Advisor 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, by Advisor shall not prevent the concurrent
      assertion or employment of any other right or remedy by Advisor.

     

    9.  Limitation
      of
      Liability.  Any provision herein to the contrary
      notwithstanding, under no circumstances shall Advisor have any liability
      (whether direct or indirect, in contract or tort or otherwise) to the Company
      or
      its security holders, affiliates or creditors related to, arising out of or
      in
      connection with Advisor’s service as an advisor to or agent of the Company,
      except for liability attributable to conduct by Advisor that is determined
      by
      final judgment or other final adjudication to be in bad faith, knowingly
      fraudulent or deliberately dishonest or to have constituted willful misconduct
      (and in any such case only to the extent of such specific
      determination).

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

     

     

    EXHIBIT
      B

     

    Non-Disclosure
      Agreement

     

     

     

     

     

    12