exv10w26






Exhibit 10.26




FORM OF INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is made as of                     , 200    by and
between Education Management Corporation, a Pennsylvania corporation (the “Company”), and
                                         (“Indemnitee”).



RECITALS




     WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company;



     WHEREAS, in order to induce Indemnitee to continue to provide services to the Company and/or
to one or more of its direct or indirect subsidiaries, the Company wishes to provide for the
indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by
applicable law;



     WHEREAS, the Company’s Amended and Restated Articles of Incorporation (the “Articles”)
and its Amended and Restated Bylaws (the “Bylaws”) require indemnification of the officers
and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to
the Pennsylvania Business Corporation Law of 1988, as amended (the “PBCL”);



     WHEREAS, the Articles, the Bylaws, and Chapter 17, Subchapter D, of the PBCL expressly provide
that the indemnification provisions set forth therein are not exclusive of any other rights to
which any person may be entitled under any agreement, and thereby contemplate that contracts may be
entered into between the Company and members of the board of directors, officers and other persons
with respect to indemnification;



     WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified; and



     WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Articles, the Bylaws, and any other agreements applicable to the Indemnitee, and any
resolutions adopted pursuant to any of the foregoing, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.



     [WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided by the
Sponsor Indemnitors (as defined below) which Indemnitee and the Sponsor Indemnitors intend to be
secondary to the primary obligation of the Company to indemnify Indemnitee as provided herein, with
the Company’s acknowledgement and agreement to the foregoing being a material condition to
Indemnitee’s willingness to serve on the Board of Directors (the “Board”).]*





 




			
	*	 	Bracketed provisions to be included in indemnification agreements
between the Company and the Sponsor Indemnitors’ designees.




 









 










     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:



     Section 1. Services to the Company. Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position.
This Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. The foregoing notwithstanding, this Agreement
shall continue in force after Indemnitee has ceased to serve as a director of the Company.



     Section 2. Definitions



     As used in this Agreement:



          (a) “Corporate Status” describes the status of a person who is or was a director,
officer, employee or agent of the Company or of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Company as a director, officer, employee, agent or fiduciary.




          (b) “Enterprise” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent
or fiduciary.




          (c) “Expenses” shall include all reasonable 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, any federal, state, local or
foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments
under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of
the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in, or otherwise participating in, a
Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii)
Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement, by litigation or otherwise. The parties agree that for
the purposes of any advancement of Expenses for which Indemnitee has made written demand to the
Company in accordance with this Agreement, all Expenses included in such demand that are certified
by affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be
reasonable. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee.




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          (d) “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether brought in the right of the
Company or otherwise and whether of a civil, criminal, administrative legislative, or investigative
(formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be
involved as a party, potential party, non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of any action taken by him or
of any action on his part while acting as director or officer of the Company, or by reason of the
fact that he is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise, in each case whether or not serving in such capacity at
the time any liability or expense is incurred for which indemnification, reimbursement, or
advancement of expenses can be provided under this Agreement. If the Indemnitee believes in good
faith that a given situation may lead to or culminate in the institution of a Proceeding, such
situation shall be considered a Proceeding under this paragraph.




          Section 3. Indemnification. The Company shall indemnify Indemnitee in accordance with
the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, whether or not by or in the right of the Company or otherwise.
Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by
applicable law against all Expenses, judgments, losses, penalties, fines and amounts paid in
settlement actually and reasonably incurred or suffered by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter therein. Indemnitee shall not enter
into any settlement in connection with a Proceeding without ten (10) days prior notice to the
Company. The Company shall not be liable to indemnify the Indemnitee under this Agreement for any
amounts paid in settlement of any Proceeding effected without its written consent, which consent
shall not be unreasonably withheld.




          For purposes of Section 3, the meaning of the phrase “to the fullest extent permitted by
applicable law” shall include, but not be limited to:




               i. to the fullest extent permitted by the provision of the PBCL that authorizes or
contemplates additional or supplementary indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the PBCL or such provision thereof; and



               ii. to the fullest extent authorized or permitted by any amendments to or replacements of the
PBCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its directors.



     Section 4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
To the extent that Indemnitee is a party to and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him in
connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful,
on the merits or otherwise, as to one or more but less than all



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claims, issues or matters in such Proceeding, the Company shall, at a minimum, indemnify
Indemnitee against (a) all Expenses actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter and (b) any claim, issue or
matter related to any such successfully resolved claim, issue or matter. For purposes of this
Section and without limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter. The foregoing provisions of this Section 4 are in addition to, and not in
limitation of, any other rights of the Indemnitee under this Agreement, including, without
limitation, under Section 3 and/or Section 8, granting the Indemnitee the right to be indemnified
against, and/or receive an advancement of Expenses in respect of, any Proceeding in which the
Indemnitee is unsuccessful, in whole or in part.



     Section 5. Indemnification For Expenses of a Witness. To the extent that Indemnitee
is, by reason of his Corporate Status, a witness or otherwise asked to participate in any
Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith. Nothing in this
Section 5 is intended to limit Indemnitee’s rights provided for in Section 3.



     Section 6. Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of Expenses, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.



     Section 7. Exclusions. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement to make any indemnity:



          (a) in connection with a proceeding (or any claim, issue or matter therein or any part
thereof) initiated by the Indemnitee, except (i) with respect to actions or proceedings brought to
establish or enforce a right to receive Expenses or indemnification under this Agreement or any
other agreement or insurance policy or under the Articles or the Bylaws now or hereafter in effect
relating to indemnification, (ii) if the Board has approved the initiation or bringing of such
claim, (iii) any compulsory counterclaim, compulsory cross-claim, or required joinder made by
Indemnitee in a proceeding not initiated by Indemnitee; or (iv) as otherwise required under
Pennsylvania law; or




          (b) with respect to any act that is established, by a final, unappealable adjudication adverse
to the Indemnitee, as having been material to the cause of action so adjudicated and as having
constituted either willful misconduct or recklessness; or




          (c) for liability imposed in a proceeding by or for the benefit of the Company to recover any
profit pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and
regulations thereunder or similar provisions of any applicable state law; provided, however, that
the exclusion in this Section 7(c) shall not apply to Expenses incurred by Indemnitee in such a
proceeding; or




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          (d) [subject to Section 12(c),]* for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except with respect to any
excess beyond the amount paid under any insurance policy or other indemnity provision.




     Section 8. Advances of Expenses. Notwithstanding any provision of this Agreement to
the contrary, the Company shall advance, to the extent not prohibited by applicable law, all
Expenses incurred by or on behalf of Indemnitee 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 Indemnitee 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 Indemnitee to waive any
privilege accorded by applicable law shall not be included with the invoice) from time to time,
whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and
interest free. Advances shall be made without regard to Indemnitee’s ability to repay expenses and
without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions
of this Agreement. Advances shall include any and all Expenses incurred pursuing an action to
enforce this right of advancement, including Expenses incurred preparing and forwarding statements
to the Company to support the advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to the Company of this Agreement, which shall constitute an undertaking
providing that the Indemnitee undertakes to the fullest extent required by applicable law to repay
the amounts advanced (without interest) 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 Indemnitee is not
entitled to be indemnified by the Company. No other form of undertaking shall be required other
than the execution of this Agreement. This Section 8 shall not apply to any request for
advancement relating to any claim for which indemnity is excluded pursuant to Section 7. The right
to advances under this paragraph shall in all events continue until final disposition of any
Proceeding.



     Section 9. Procedure for Notification and Defense of Claim.



          (a) To obtain indemnification or advancement of Expenses under this Agreement, Indemnitee
shall submit to the Company a written request therefor, coupled with appropriate documentation to
support the request. The omission by Indemnitee to notify the Company hereunder will not relieve
the Company from any liability which it may have to Indemnitee hereunder, under the Articles, the
Bylaws, any resolution of the Board providing for indemnification or otherwise, and any delay in so
notifying the Company shall not constitute a waiver by Indemnitee of any rights under this
Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested indemnification.






 




			
	*	 	Bracketed provisions to be included in indemnification agreements
between the Company and the Sponsor Indemnitors’ designees.




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          (b) The Company will be entitled to participate in any Proceeding at its own expense.




     Section 10. Procedure Upon Application for Indemnification. Upon written request by
Indemnitee for indemnification pursuant to Section 9(a), payment shall be made within thirty (30)
days of the Company’s receipt of such request. Indemnification shall be made by the Company
without any requirement that any determination be made or any action be taken by the Board, the
shareholders, or legal counsel.



     Section 11. Remedies of Indemnitee.



          (a) Subject to Section 11(d), in the event that (i) payment of indemnification pursuant to
Section 3, 4, 5, or 6 of this Agreement is not made within thirty (30) days after receipt by the
Company of a written request therefor, (ii) advancement of Expenses is not timely made pursuant to
Section 8 of this Agreement, or (iii) in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the
benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by a court of his entitlement to such indemnification and/or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or award in arbitration within 180 days following the date on which Indemnitee first
has the right to commence such proceeding pursuant to this Section 11(a); provided, however, that
the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce
his rights under Section 4 of this Agreement. The Company shall not oppose Indemnitee’s right to
seek any such adjudication or award in arbitration. In any judicial proceeding or arbitration
commenced pursuant to this Section 11, the Company shall have the burden of proving Indemnitee is
not entitled to indemnification or advancement of Expenses, as the case may be.




          (b) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 11 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement. It is the intent of
the Company that, to the fullest extent permitted by applicable law, the Indemnitee not be required
to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be extended to the Indemnitee
hereunder. To the fullest extent permitted by applicable law, the Company shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within thirty (30)
days after receipt by the Company of a written request therefor) advance such Expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of
Expenses or insurance recovery, as the case may be, in the suit for which indemnification or
advances is being sought.




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          (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, nolo contendere or its equivalent, shall
not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right
of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful. The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this Agreement.




          (d) Notwithstanding anything in this Agreement to the contrary, other than Section 8, no
determination as to entitlement of Indemnitee to indemnification under this Agreement shall be
required to be made prior to the final disposition of the Proceeding.




          (e) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or
the Board or counsel selected by any committee of the Board or on information or records given or
reports made to the Enterprise by an independent certified public accountant or by an appraiser,
investment banker or other expert selected with reasonable care by the Company or the Board or any
committee of the Board. The provisions of this Section 11(e) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement.




     Section 12. Non-exclusivity; Survival of Rights; Insurance; Subrogation.



          (a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Articles, the Bylaws, any agreement, a vote of shareholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in Pennsylvania law, whether by
statute or judicial decision, permits greater indemnification or advancement of Expenses than would
be afforded currently under the Articles, the Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.




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          (b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company or of any other
Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any such director, officer, employee or
agent under such policy or policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of such claim or of the commencement of a proceeding, as the
case may be, to the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.




          [(c) The Company hereby acknowledges that Indemnitee may have certain rights to
indemnification, advancement of expenses and/or insurance provided by
______ and/or certain of
its affiliates (collectively, the “Sponsor Indemnitors”). The Company hereby agrees (i)
that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any
obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the
same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required
to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full
amount of all Expenses, judgments, losses, penalties, fines and amounts paid in settlement to the
extent legally permitted and as required by the terms of this Agreement, the Articles and the
Bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights
Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives,
relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor
Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof.
The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the
Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution
and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery
of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors
are express third party beneficiaries of the terms of this Section 12(c).]*




          (d) [Except as provided in Section 12(c),]* In the event of any payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee [(other than against the Sponsor Indemnitors)]*, who shall execute all papers required
and take all action necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.




          (e) [Except as provided in Section 12(c),]* The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which
advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.






 




			
	*	 	Bracketed language to be included in indemnification agreements
between the Company and the Sponsor Indemnitors’ designees.




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          (f) [Except as provided in Section 12(c),]* The Company’s obligation to indemnify or advance
Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director,
officer, employee or agent of any other corporation, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee
has actually received as indemnification or advancement of Expenses from such other corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise.




          (g) The Company may create a fund of any nature, which may, but need not be, irrevocable or
under the control of a trustee, or otherwise secure or insure in any manner, its obligations to
indemnify and advance Expenses to the Indemnitee, whether arising under or pursuant to this
Agreement or any other agreement or otherwise. In such case, the Indemnitee shall be an intended
beneficiary of any such fund or arrangement.




     Section 13. Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as
a director of the Company or (b) one (1) year after the final termination of any Proceeding then
pending on such ten (10) year anniversary in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 11 of this Agreement relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to the Indemnitee, 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.



     Section 14. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by
applicable law; (b) such provision or provisions shall be deemed reformed to the extent necessary
to conform to applicable law and to give the maximum effect to the intent of the parties hereto;
and (c) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.



     Section 15. Enforcement.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director of the Company.




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          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Articles, the
Bylaws, the PBCL, any resolution of the Board providing for indemnification and applicable law, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.




     Section 16. Modification and Waiver. No supplement, modification or amendment, or
waiver of any provision, of this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver.



     Section 17. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to the Indemnitee under this
Agreement or otherwise.



     Section 18. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (c) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed or
(d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:



          (a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.




          (b) If to the Company to:





			
	
 







			
	Attn:	 	
 







			
	Facsimile: (     )	 	
 





or to any other address as may have been furnished to Indemnitee by the Company.




     Section 19. Contribution. To the fullest extent permitted by applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, losses, fines, penalties, excise taxes, amounts paid
or to be paid in settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in



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light of all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s)
giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).



     Section 20. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws rules. Except
with respect to any arbitration commenced by Indemnitee pursuant to Section 11(a) of this
Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in
the state or federal courts located in Allegheny County, Pennsylvania (the “Pennsylvania
Court”), and not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction of the
Pennsylvania Court for purposes of any action or proceeding arising out of or in connection with
this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding
in the Pennsylvania Court, and (iv) waive, and agree not to plead or to make, any claim that any
such action or proceeding brought in the Pennsylvania Court has been brought in an improper or
inconvenient forum.



     Section 21. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.



     Section 22. Miscellaneous. The headings of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.



[signature page follows]




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     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.



	 	 	 	 	 
	 	COMPANY:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	INDEMNITEE:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 




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