(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemniteeshall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason ofIndemnitee’s Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to bemade, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceedingby or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnifiedagainst all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid insettlement actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in connectionwith such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith andin a manner Indemnitee reasonably believed to be in or not opposed to the best interests of theCompany, and with respect to any criminal Proceeding, had no reasonable cause to believeIndemnitee’s conduct was unlawful.               (b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled tothe rights of indemnification provided in this Section 1(b) if, by reason of Indemnitee’sCorporate Status, Indemnitee is, or is threatened to be made, a party to or participant in anyProceeding brought by or in the right of the Company to procure a judgment in its favor. Pursuantto this Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonablyincurred by Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding if Indemniteeacted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to thebest interests of the Company; provided, however, if applicable law so provides, no indemnificationagainst such Expenses shall be made in respect of any claim, issue or matter in such Proceeding asto which Indemnitee shall have been adjudged to be liable to the Company unless and to the extentthat the Court of Chancery of the State of Delaware shall determine that such indemnification maybe made.               (c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reasonof Indemnitee’s Corporate Status, a party to and is successful, on the merits or otherwise, in anyProceeding, Indemnitee shall be indemnified to the maximum extent permitted by law against allExpenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connectiontherewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on themerits or otherwise, as to one or more but less than all claims, issues or matters in suchProceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonablyincurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolvedclaim, issue or matter. For purposes of this Section and without limitation, the termination ofany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall bedeemed to be a successful result as to such claim, issue or matter.          2. Contribution in the Event of Joint Liability.               (a) Whether or not the indemnification provided in Section 1 hereof is available, in respectof any threatened, pending or completed action, suit or proceeding in which the Company is jointlyliable with Indemnitee (or would be if joined in such action, suit or proceeding), the Companyshall contribute to the amount of expenses (including attorneys’ fees), judgments, fines andamounts paid in settlement of such action, suit or proceeding actually and reasonably incurred andpaid or payable by Indemnitee in proportion to the relative fault of the
 

 
Company and all officers, directors or employees of the Company other than Indemnitee who arejointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on theone hand, and Indemnitee, on the other hand, in connection with the events that resulted in suchexpenses, judgments, fines or settlement amounts, as well as any other equitable considerationswhich the Delaware Law may require to be considered. The relative fault of the Company and allofficers, directors or employees of the Company, other than Indemnitee, who are jointly liable withIndemnitee (or would be if joined in such action, suit or proceeding), on the one hand, andIndemnitee, on the other hand, shall be determined by reference to, among other things, the degreeto which their actions were motivated by intent to gain personal profit or advantage, the degree towhich their liability is primary or secondary and the degree to which their conduct is active orpassive.               (b) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claimsof contribution which may be brought by officers, directors or employees of the Company, other thanIndemnitee, who may be jointly liable with Indemnitee.          3. Indemnification for Expenses of a Witness. Notwithstanding any other provision ofthis Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, awitness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnifiedagainst all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf inconnection therewith.          4. Advancement of Expenses. Notwithstanding any other provision of this Agreement,the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection withany Proceeding by reason of Indemnitee’s Corporate Status within twenty (20) days after the receiptby the Company of a statement or statements from Indemnitee requesting such advance or advancesfrom time to time, whether prior to or after final disposition of such Proceeding. Such statementor statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or bepreceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expensesadvanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnifiedagainst such Expenses. Any advances and undertakings to repay pursuant to this Section 4 shall beunsecured and interest free. Notwithstanding the foregoing, the obligation of the Company toadvance Expenses pursuant to this Section 4 shall be subject to the condition that, if, when andto the extent that the Company determines that Indemnitee would not be permitted to be indemnifiedunder applicable law, the Company shall be entitled to be reimbursed, within twenty (20) days ofsuch determination, by Indemnitee (who hereby agrees to reimburse the Company) for all such amountstheretofore paid; provided, however, that if Indemnitee has commenced or thereaftercommences legal proceedings in a court of competent jurisdiction to secure a determination thatIndemnitee should be indemnified under applicable law, any determination made by the Company thatIndemnitee would not be permitted to be indemnified under applicable law shall not be binding andIndemnitee shall not be required to reimburse the Company for any advance of Expenses until a finaljudicial determination is made with respect thereto (and as to which all rights of appeal therefromhave been exhausted or lapsed).
 

 
          5. Procedures and Presumptions for Determination of Entitlement to Indemnification.It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are asfavorable as may be permitted under the Delaware Law and public policy of the State of Delaware.Accordingly, the parties agree that the following procedures and presumptions shall apply in theevent of any question as to whether Indemnitee is entitled to indemnification under this Agreement:               (a) To obtain indemnification (including, but not limited to, the advancement of Expenses andcontribution by the Company) under this Agreement, Indemnitee shall submit to the Company a writtenrequest, including therein or therewith such documentation and information as is reasonablyavailable to Indemnitee and is reasonably necessary to determine whether and to what extentIndemnitee is entitled to indemnification. The Secretary of the Company shall, promptly uponreceipt of such a request for indemnification, advise the Board of Directors in writing thatIndemnitee has requested indemnification.               (b) In the event the Company shall be obligated hereunder to pay the Expenses of anyProceeding, the Company shall be entitled to assume the defense of such Proceeding with counselapproved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery toIndemnitee of written notice of its election so to do. After delivery of such notice, approval ofsuch counsel by Indemnitee and the retention of such counsel by the Company, the Company will notbe liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred byIndemnitee with respect to the same Proceeding; provided that, (i) Indemnitee shall have the rightto employ Indemnitee’s counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A) theemployment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemniteeshall have reasonably concluded that there is a conflict of interest between the Company andIndemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain suchcounsel to defend such Proceeding, then the fees and expenses of Indemnitee counsel shall be at theexpense of the Company. The Company shall have the right to conduct such defense as it sees fit inits sole discretion; provided, however, the Company shall not, without the prior written consent ofIndemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement orcompromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as anunconditional term thereof, the full release of Indemnitee from all liability in respect of suchProceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee.               (c) Upon written request by Indemnitee for indemnification pursuant to the first sentence ofSection 5(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’sentitlement thereto shall be made in the specific case by one of the following three methods, whichshall be at the election of Indemnitee: (1) by a majority vote of the Disinterested Directors,even though less than a quorum, (2) by independent legal counsel in a written opinion or (3) by thestockholders.               (d) If the determination of entitlement to indemnification is to be made by IndependentCounsel pursuant to Section 5(c) hereof, the Independent Counsel shall be selected as provided inthis Section 5(d). The Independent Counsel shall be selected by the Board of Directors andapproved by Indemnitee. Indemnitee may, within 10 days after such
 

 
written notice of selection shall have been given, deliver to the Company a written objectionto such selection; provided, however, that such objection may be asserted only on the ground thatthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” asdefined in Section 14 of this Agreement, and the objection shall set forth with particularity thefactual basis of such assertion. Absent a proper and timely objection, the person so selectedshall act as Independent Counsel. If a written objection is made and substantiated, theIndependent Counsel selected may not serve as Independent Counsel unless and until such objectionis withdrawn or a court has determined that such objection is without merit. If, within 20 daysafter submission by Indemnitee of a written request for indemnification pursuant to Section 5(a)hereof, no Independent Counsel shall have been selected and not objected to, either the Company orIndemnitee may petition the Court of Chancery of the State of Delaware or other court of competentjurisdiction for resolution of any objection which shall have been made by Indemnitee to theCompany’s selection of Independent Counsel and/or for the appointment as Independent Counsel of aperson selected by the court or by such other person as the court shall designate, and the personwith respect to whom all objections are so resolved or the person so appointed shall act asIndependent Counsel under Section 5(c) hereof. The Company shall pay any and all reasonable feesand expenses of Independent Counsel incurred by such Independent Counsel in connection with actingpursuant to Section 5(c) hereof, and the Company shall pay all reasonable fees and expensesincident to the procedures of this Section 5(d), regardless of the manner in which suchIndependent Counsel was selected or appointed.               (e) In making a determination with respect to entitlement to indemnification hereunder, theperson or persons or entity making such determination shall presume that Indemnitee is entitled toindemnification under this Agreement. Anyone seeking to overcome this presumption shall have theburden of proof and the burden of persuasion by clear and convincing evidence.               (f) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based onthe records or books of account of the Enterprise, including financial statements, or oninformation supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) inthe course of their duties, or on the advice of legal counsel for the Enterprise or on informationor records given or reports made to the Enterprise by an independent certified public accountant orby an appraiser or other expert selected with reasonable care by the Enterprise. In addition, theknowledge and/or actions, or failure to act, of any director, officer, agent or employee of theEnterprise shall not be imputed to Indemnitee for purposes of determining the right toindemnification under this Agreement. Whether or not the foregoing provisions of this Section5(f) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted ingood faith and in a manner Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Company. Anyone seeking to overcome this presumption shall have the burden ofproof and the burden of persuasion by clear and convincing evidence.               (g) If the person, persons or entity empowered or selected under Section 5 to determinewhether Indemnitee is entitled to indemnification shall not have made a determination within thirty(30) days after receipt by the Company of the request therefor, the requisite determination ofentitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitledto such indemnification absent (i) a misstatement by Indemnitee of a
 

 
material fact, or an omission of a material fact necessary to make Indemnitee’s statement notmaterially misleading, in connection with the request for indemnification, or (ii) a prohibition ofsuch indemnification under applicable law; provided, however, that such 30-dayperiod may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if theperson, persons or entity making such determination with respect to entitlement to indemnificationin good faith requires such additional time to obtain or evaluate documentation and/or informationrelating thereto; and provided, further, that the foregoing provisions of thisSection 5(g) shall not apply if the determination of entitlement to indemnification is to be madeby the stockholders pursuant to Section 5(c) of this Agreement and if (A) within fifteen (15) daysafter receipt by the Company of the request for such determination, the Board of Directors or theDisinterested Directors, if appropriate, resolve to submit such determination to the stockholdersfor their consideration at an annual meeting thereof to be held within seventy-five (75) days aftersuch receipt and such determination is made thereat, or (B) a special meeting of stockholders iscalled within fifteen (15) days after such receipt for the purpose of making such determination,such meeting is held for such purpose within sixty (60) days after having been so called and suchdetermination is made thereat.               (h) Indemnitee shall cooperate with the person, persons or entity making such determinationwith respect to Indemnitee’s entitlement to indemnification, including providing to such person,persons or entity upon reasonable advance request any documentation or information which is notprivileged or otherwise protected from disclosure and which is reasonably available to Indemniteeand reasonably necessary to such determination. Any Independent Counsel, member of the Board ofDirectors or stockholder of the Company shall act reasonably and in good faith in making adetermination regarding Indemnitee’s entitlement to indemnification under this Agreement. Anycosts or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in socooperating with the person, persons or entity making such determination shall be borne by theCompany (irrespective of the determination as to Indemnitee’s entitlement to indemnification) andthe Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.               (i) The Company acknowledges that a settlement or other disposition short of final judgmentmay be successful if it permits a party to avoid expense, delay, distraction, disruption anduncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party isresolved in any manner other than by adverse judgment against Indemnitee (including, withoutlimitation, settlement of such action, claim or proceeding with or without payment of money orother consideration) it shall be presumed that Indemnitee has been successful on the merits orotherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shallhave the burden of proof and the burden of persuasion by clear and convincing evidence.          6. Remedies of Indemnitee.               (a) In the event that (i) a determination is made pursuant to Section 5 of this Agreementthat Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement ofExpenses is not timely made pursuant to Section 4 of this Agreement, (iii) no determination ofentitlement to indemnification is made pursuant to Section 5(c) of this Agreement within 90 daysafter receipt by the Company of the request for indemnification, (iv)
 

 
payment of indemnification is not made pursuant to this Agreement within twenty (20) daysafter receipt by the Company of a written request therefor or (v) payment of indemnification is notmade within ten (10) days after a determination has been made that Indemnitee is entitled toindemnification or such determination is deemed to have been made pursuant to Section 5 of thisAgreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the State ofDelaware, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to suchindemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 daysfollowing the date on which Indemnitee first has the right to commence such proceeding pursuant tothis Section 6(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.               (b) In the event that a determination shall have been made pursuant to Section 5(c) of thisAgreement that Indemnitee is not entitled to indemnification, any judicial proceeding commencedpursuant to this Section 6 shall be conducted in all respects as a *de novo*trial on the merits,and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 5(c).               (c) If a determination shall have been made pursuant to Section 5(c) of this Agreement thatIndemnitee is entitled to indemnification, the Company shall be bound by such determination in anyjudicial proceeding commenced pursuant to this Section 6, absent a prohibition of suchindemnification under applicable law.               (d) In the event that Indemnitee, pursuant to this Section 6, seeks a judicial adjudicationof Indemnitee’s rights under, or to recover damages for breach of, this Agreement, the Companyshall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in thedefinition of Expenses in Section 14 of this Agreement) actually and reasonably incurred byIndemnitee in such judicial adjudication, only if Indemnitee ultimately is determined to beentitled to such indemnification or advancement of expenses; provided, however, ifit shall be determined in such judicial adjudication that Indemnitee is entitled to receive partbut not all of the indemnification or advancement of expenses sought, the expenses incurred byIndemnitee in connection with such judicial adjudication or arbitration shall be appropriatelypro-rated.               (e) The Company shall be precluded from asserting in any judicial proceeding commencedpursuant to this Section 6 that the procedures and presumptions of this Agreement are not valid,binding and enforceable and shall stipulate in any such court that the Company is bound by all theprovisions of this Agreement.               (f) Both the Company and Indemnitee acknowledge that in certain instances, federal law orapplicable public policy may prohibit the Company from indemnifying its directors, officers,employees or agents under this Agreement or otherwise. Indemnitee understands and acknowledgesthat the Company has undertaken or may be required in the future to undertake with the Securitiesand Exchange Commission to submit the question of indemnification to a court in certaincircumstances for a determination of the Company’s right under public policy to indemnifyIndemnitee.
 

 
          7. Liability Insurance. To the extent the Company maintains liability insuranceapplicable to directors, officers, employees, agents or fiduciaries, Indemnitee shall be covered bysuch policies in such a manner as to provide Indemnitee the same rights and benefits as areprovided to the most favorably insured of the Company’s directors, if Indemnitee is a director; orof the Company’s officers, if Indemnitee is not a director of the Company but is an officer; or ofthe Company’s key employees, agents or fiduciaries, if Indemnitee is not a director or officer butis a key employee, agent or fiduciary.          8. Exceptions. Any other provision herein to the contrary notwithstanding, theCompany shall not be obligated pursuant to the terms of this Agreement:               (a) Excluded Action or Omissions. To indemnify Indemnitee for Indemnitee’s acts,omissions or transactions from which Indemnitee may not be relieved of liability under applicablelaw;               (b) Proceedings Initiated by Indemnitee. To indemnify or advance expenses toIndemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not byway of defense, except (i) with respect to actions or proceedings brought to establish or enforce aright to indemnification under this Agreement or any other agreement or insurance policy or underthe Company’s Certificate of Incorporation or Bylaws now or hereafter in effect relating toProceedings, (ii) in specific cases if the Board of Directors has approved the initiation orbringing of such Proceeding, or (iii) as otherwise required under Section 145 of the DelawareGeneral Corporation Law, regardless of whether Indemnitee ultimately is determined to be entitledto such indemnification, advance expense payment or insurance recovery, as the case may be;               (c) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred byIndemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret thisAgreement, if a court of competent jurisdiction ultimately determines that each of the materialassertions made by Indemnitee in such proceeding was not made in good faith or was frivolous; or               (d) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the paymentof profits arising from the purchase and sale by Indemnitee of securities in violation of Section16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.          9. Non-Exclusivity; Primary Source of Indemnification; Survival of Rights; Insurance;Subrogation.               (a) The rights of indemnification as provided by this Agreement shall not be deemed exclusiveof any other rights to which Indemnitee may at any time be entitled under applicable law, theCertificate of Incorporation of the Company, the Bylaws, any agreement, a vote of stockholders, aresolution of directors or otherwise. No amendment, alteration or repeal of this Agreement or ofany provision hereof shall limit or restrict any right of Indemnitee under this Agreement inrespect of any action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior tosuch amendment, alteration or repeal. To the extent
 

 
that a change in the Delaware Law, whether by statute or judicial decision, permits greaterindemnification than would be afforded currently under the Bylaws and this Agreement, it is theintent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits soafforded by such change. No right or remedy herein conferred is intended to be exclusive of anyother right or remedy, and every other right and remedy shall be cumulative and in addition toevery other right and remedy given hereunder or now or hereafter existing at law or in equity orotherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall notprevent the concurrent assertion or employment of any other right or remedy.               (b) The Company acknowledges that, for liabilities and expenses incurred by reason ofIndemnitee’s service to the Company, the Indemnitee may have certain rights to indemnification,advancement of expenses and/or insurance provided by investment funds and their affiliates or otherthird parties (collectively, the “Secondary Indemnitors”). The Company hereby acknowledges that(a) the Company’s obligations under this Agreement shall be the primary source of indemnificationand advancement of liabilities and expenses incurred by reason of Indemnitee’s service to theCompany, and the Company will not assert that the Indemnitee must seek advancement, reimbursementor indemnification from the Secondary Indemnitors, under this Agreement, (b) the Company shall berequired to perform all of its obligations under this Agreement without regard to any rightsIndemnitee may have against the Secondary Indemnitors, (c) as consideration for Indemnitee’sservice to the Company, the Company irrevocably waives, relinquishes and releases any and allclaims it would otherwise have against the Secondary Indemnitors for contribution, subrogation orany other recovery of any amounts paid by the Company for advancement or indemnification under thisAgreement, (d) no advancement or payment of any kind by the Secondary Indemnitors to or on behalfof the Indemnitee shall affect the foregoing, and (e) to the extent that the Secondary Indemnitorsadvance or pay any amounts that the Company is obligated to advance or indemnify under thisAgreement, the Secondary Indemnitors shall have a right of subrogation against the Company for anysuch amounts. If for any reason a court of competent jurisdiction determines that the SecondaryIndemnitors are not entitled to the subrogation rights described in clause (e) above of thisSection 9(b), the Secondary Indemnitors shall have a right of contribution by the Company to theSecondary Indemnitors with respect to any advance or payment by the Secondary Indemnitors to or onbehalf of the Indemnitee by reason of Indemnitee’s service to the Company.               (c) To the extent that the Company maintains an insurance policy or policies providingliability insurance for directors, officers, employees, or agents or fiduciaries of the Company orof any other corporation, partnership, joint venture, trust, employee benefit plan or otherenterprise that such person serves at the request of the Company, Indemnitee shall be covered bysuch policy or policies in accordance with its or their terms to the maximum extent of the coverageavailable for any director, officer, employee, agent or fiduciary under such policy or policies.               (d) Except as provided in Section 9(b) hereof, in the event of any payment under thisAgreement, the Company shall be subrogated to the extent of such payment to all of the rights ofrecovery of Indemnitee, who shall execute all papers required and take all action necessary tosecure such rights, including execution of such documents as are necessary to enable the Company tobring suit to enforce such rights.
 

 
               (e) Except as provided in Section 9(b) hereof, the Company shall not be liable under thisAgreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extentthat Indemnitee has otherwise actually received such payment under any insurance policy, contract,agreement or otherwise.               (f) No legal action shall be brought and no cause of action shall be asserted by or in theright of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personalor legal representatives after the expiration of two (2) years from the date of accrual of suchcause of action, and any claim or cause of action of the Company shall be extinguished and deemedreleased unless asserted by the timely filing of a legal action within such two-year period;provided, however, that if any shorter period of limitations is otherwiseapplicable to any such cause of action, such shorter period shall govern.               (g) The Company and Indemnitee agree that any Secondary Indemnitor shall be a third partybeneficiary of this Agreement.          10. Exception to Right of Indemnification. Notwithstanding any other provision ofthis Agreement, Indemnitee shall not be entitled to indemnification under this Agreement withrespect to any Proceeding brought by Indemnitee, or any claim therein, unless (a) the bringing ofsuch Proceeding or making of such claim shall have been approved by the Board of Directors of theCompany or (b) such Proceeding is being brought by Indemnitee to assert, interpret or enforceIndemnitee’s rights under this Agreement.          11. Duration of Agreement. All agreements and obligations of the Company containedherein shall continue during the period Indemnitee is a director, officer, employee or agent of theCompany (or is or was serving at the request of the Company as a director, officer, employee oragent of another corporation, partnership, joint venture, trust or other enterprise) and shallcontinue thereafter so long as Indemnitee shall be subject to any Proceeding (or any proceedingcommenced under Section 6 hereof) by reason of Indemnitee’s Corporate Status, whether or notIndemnitee is acting or serving in any such capacity at the time any liability or expense isincurred for which indemnification can be provided under this Agreement.          12. Security. To the extent requested by Indemnitee and approved by the Board ofDirectors of the Company, the Company may at any time and from time to time provide security toIndemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit,funded trust or other collateral. Any such security, once provided to Indemnitee, may not berevoked or released without the prior written consent of Indemnitee, which consent may not beunreasonably withheld.          13. Enforcement.               (a) The Company expressly confirms and agrees that it has entered into this Agreement andassumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,officer, employee or agent or of the Company, and the Company acknowledges that Indemnitee isrelying upon this Agreement in serving as a director, officer, employee or agent of the Company.
 

 
               (b) This Agreement constitutes the entire agreement between the parties hereto with respect tothe subject matter hereof and supersedes all prior agreements and understandings, oral, written andimplied, between the parties hereto with respect to the subject matter hereof.          14. Definitions. For purposes of this Agreement:               (a) “Corporate Status” describes the status, either prior or subsequent to the date of thisagreement, of a person who is or was a director, officer, employee, agent or fiduciary of theCompany or of any other corporation, partnership, joint venture, trust, employee benefit plan orother enterprise that such person is or was serving at the express written request of the Company.               (b) “Disinterested Director” means a director of the Company who is not and was not a party tothe Proceeding in respect of which indemnification is sought by Indemnitee.               (c) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture,trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the expresswritten request of the Company as a director, officer, employee, agent or fiduciary.               (d) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing andbinding costs, telephone charges, postage, delivery service fees and all other disbursements orexpenses of the types customarily incurred in connection with prosecuting, defending, preparing toprosecute or defend, investigating, participating, or being or preparing to be a witness in aProceeding.               (e) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced inmatters of corporation law and neither presently is, nor in the past three (3) years has been,retained to represent: (i) the Company or Indemnitee in any matter material to either such party(other than with respect to matters concerning Indemnitee under this Agreement, or of otherindemnitees under similar indemnification agreements), or (ii) any other party to the Proceedinggiving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term“Independent Counsel” shall not include any person who, under the applicable standards ofprofessional conduct then prevailing, would have a conflict of interest in representing either theCompany or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. TheCompany agrees to pay the reasonable fees of the Independent Counsel referred to above and to fullyindemnify such counsel against any and all Expenses, claims, liabilities and damages arising out ofor relating to this Agreement or its engagement pursuant hereto.               (f) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any otheractual, threatened or completed proceeding, whether brought by or in the right of the Company orotherwise and whether civil, criminal, administrative or
 

 
investigative, in which Indemnitee was, is or will be involved as a party or otherwise, byreason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company,by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting asa director, officer, employee or agent of the Company, or by reason of the fact that Indemnitee isor was serving at the request of the Company as a director, officer, employee, agent or fiduciaryof another corporation, partnership, joint venture, trust or other Enterprise; in each case whetheror not Indemnitee is acting or serving in any such capacity at the time any liability or expense isincurred for which indemnification can be provided under this Agreement; including one pending onor before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant toSection 6 of this Agreement to enforce Indemnitee’s rights under this Agreement.          15. Severability. If any provision or provisions of this Agreement shall be held by acourt of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for anyreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions ofthis Agreement (including without limitation, each portion of any section of this Agreementcontaining any such provision held to be invalid, illegal or unenforceable that is not itselfinvalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shallremain enforceable to the fullest extent permitted by law; and (b) to the fullest extent possible,the provisions of this Agreement (including, without limitation, each portion of any section ofthis Agreement containing any such provision held to be invalid, illegal or unenforceable that isnot itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intentmanifested thereby. Without limiting the generality of the foregoing, this Agreement is intended toconfer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws.In the event any provision hereof conflicts with any applicable law, such provision shall be deemedmodified, consistent with the aforementioned intent, to the extent necessary to resolve suchconflict.          16. Modification and Waiver. No supplement, modification, termination or amendment ofthis Agreement shall be binding unless executed in writing by both of the parties hereto. Nowaiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver ofany other provisions hereof (whether or not similar) nor shall such waiver constitute a continuingwaiver.          17. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writingupon being served with or otherwise receiving any summons, citation, subpoena, complaint,indictment, information or other document relating to any Proceeding or matter which may be subjectto indemnification covered hereunder. The failure to so notify the Company shall not relieve theCompany of any obligation which it may have to Indemnitee under this Agreement or otherwise unlessand only to the extent that such failure or delay materially prejudices the Company.          18. Notices. All notices, requests, demands and other communications hereunder shallbe in writing and shall be deemed to have been duly given if (i) delivered by hand and receiptedfor by the party to whom said notice or other communication shall have been directed, or (ii)mailed by certified or registered mail with postage prepaid, on the third business day after thedate on which it is so mailed:
 

 
               (a) If to Indemnitee, to the address set forth below Indemnitee signature hereto.               (b) If to the Company, to:                     MiddleBrook Pharmaceuticals, Inc.                     7 Village Circle, Suite 100                     Westlake, Texas 76262                     Attn: General Counselor to such other address as may have been furnished to Indemnitee by the Company or to the Companyby Indemnitee, as the case may be.          19. Identical Counterparts. This Agreement may be executed in one or morecounterparts, each of which shall for all purposes be deemed to be an original but all of whichtogether shall constitute one and the same Agreement. Only one such counterpart signed by theparty against whom enforceability is sought needs to be produced to evidence the existence of thisAgreement.          20. Headings. The headings of the paragraphs of this Agreement are inserted forconvenience only and shall not be deemed to constitute part of this Agreement or to affect theconstruction thereof.          21. Governing Law. The parties agree that this Agreement shall be governed by, andconstrued and enforced in accordance with, the laws of the State of Delaware without application ofthe conflict of laws principles thereof.IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and yearfirst above written.      MIDDLEBROOK