NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve or to continue to serve asa director or officer, or both, of the Company after the date hereof, the parties hereto agree asfollows:1. Definitions. For purposes of this Agreement:(a) “Change in Control” shall mean a change in control of the Company occurring afterthe date hereof of a nature that would be required to be reported in response to Item 6(e) onSchedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form)promulgated under the Securities Exchange Act of 1934, as amended (the “Act”), whether ornot the Company is then subject to such reporting requirement; provided, however,that, without limitation, a Change in Control shall include: (i) the acquisition (other thanacquisition by or from the Company) after the date hereof by any person, entity or “group,” withinthe meaning of Section 13(d)(3) or 14(d)(2) of the Act (excluding, for this purpose, the Company orits subsidiaries, any employee benefit plan of the Company or its subsidiaries that acquiresbeneficial ownership of voting securities of the Company, and any qualified institutional investorthat meets the requirements of Rule 13d-1(b)(1) promulgated under the Act) of beneficial ownership(within the meaning of Rule 13d-3 promulgated under the Act) of 50% or more of either thethen-outstanding shares of common stock or the combined voting power of the Company’sthen-outstanding capital stock entitled to vote generally in the election of directors; (ii)individuals who, as of the date hereof, constitute the Board of Directors (the “IncumbentBoard”) ceasing for any reason to constitute at least a majority of the Board of Directors,provided that any person becoming a director subsequent to the date hereof whose election, ornomination for election, by the Company’s stockholders was approved by a vote of at least amajority of the directors then comprising the Incumbent Board (other than an election or nominationof an individual whose initial assumption of office is in connection with an actual or threatenedelection contest relating to the election of the directors of the Company) shall be, for purposesof this Agreement, considered as though such person were a member of the Incumbent Board; or (iii)approval by the stockholders of the Company of (A) a reorganization, merger or consolidation, ineach case, with respect to which persons who were the stockholders of the Company immediately priorto such reorganization, merger or consolidation do not, immediately thereafter, own more than 50%of the combined voting power entitled to vote generally in the election of directors of thereorganized, merged, consolidated or other surviving corporation’s then-outstanding votingsecurities, (B) a liquidation or dissolution of the Company, or (C) the sale of all orsubstantially all of the assets of the Company.(b) “Corporate Status” describes the status of a person who is or was a director,officer, employee, agent or fiduciary of the Company or any direct or indirect wholly ownedsubsidiary of the Company, or of any other corporation, partnership, limited liability company,joint venture, trust, employee benefit plan or other enterprise that such person is or was servingwith in a similar capacity at the written request of the Company.(c) “Disinterested Director” means a director of the Company who is not and was not aparty to the Proceeding in respect of which indemnification is sought by Indemnitee.(d) “Enterprise” shall mean the Company and any direct or indirect wholly ownedsubsidiary of the Company, and any other corporation, partnership, limited liability company, jointventure, trust, employee benefit plan or other enterprise that Indemnitee is or was serving with atthe written request of the Company as a director, officer, employee, agent or fiduciary.
 
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(e) “Expenses” shall include all reasonable attorneys’ fees, retainers, disbursementsof counsel, court costs, filing fees, transcript costs, fees and expenses of experts, witness feesand expenses, travel expenses, duplicating and imaging costs, printing and binding costs, telephonecharges, facsimile transmission charges, computer legal research costs, postage, delivery servicefees and all other disbursements or expenses of the types customarily incurred in connection withprosecuting, defending, preparing to prosecute or defend, investigating, participating, or being orpreparing to be a witness in a Proceeding, as well as all other “expenses” within the meaning ofthat term as used in Section 145 of the General Corporation Law of the State of Delaware and allother disbursements or expenses of types customarily and reasonably incurred in connection withprosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be awitness in, or otherwise participating in, actions, suits, or proceedings similar to or of the sametype as the Proceeding with respect to which such disbursements or expenses were incurred; but,notwithstanding anything in the foregoing to the contrary, “Expenses” shall not include amounts ofjudgments, penalties, or fines actually levied against the Indemnitee in connection with anyProceeding. Expenses also shall include the foregoing incurred in connection with any appealresulting from any Proceeding, including without limitation the premium, security for, and othercosts relating to any cost bond, supersede as bond, or other appeal bond or its equivalent.(f) “Independent Counsel” means a law firm, or a member of a law firm, that isexperienced in matters of corporation law and neither presently is, nor in the past five years hasbeen, retained to represent: (i) the Company or Indemnitee in any matter material to either suchparty (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.(g) “Proceeding” includes any threatened, pending or completed action, suit,arbitration, alternate dispute resolution mechanism, investigation (including any internalinvestigation), inquiry, administrative hearing or any other actual, threatened or completedproceeding, whether brought by or in the right of the Company or otherwise (including, but notlimited to, as applicable, any cross claims, counterclaims or interpleader actions brought byIndemnitee or the Company) and whether civil, criminal, administrative or investigative, in whichIndemnitee was, is or will be involved as a party or otherwise, by reason of the fact thatIndemnitee is or was an officer or director of the Company, by reason of any action taken by him orof any inaction on his part while acting as an officer or director of the Company, or by reason ofthe fact that he is or was serving at the request of the Company as a director, officer, employee,agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise;in each case whether or not he is acting or serving in any such capacity at the time any liabilityor expense is incurred for which indemnification can be provided under this Agreement; includingone pending on or before the date of this Agreement, but excluding one initiated by an Indemniteepursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
 
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(h) References herein to “fines” shall not include any excise tax assessed with respect to anyemployee benefit plan.(i) References herein to a director of another Enterprise or a director of another Enterpriseshall include, in the case of any entity that is not managed by a board of directors, such otherposition, such as manager or trustee or member of the governing body of such entity, that entailsresponsibility for the management and direction of such entity’s affairs, including, withoutlimitation, the general partner of any partnership (general or limited) and the manager or managingmember of any limited liability company.(j) (i) References herein to serving at the request of the Company as a director, officer,employee, agent, or fiduciary of another Enterprise shall include any service as a director,officer, employee, or agent of the Company that imposes duties on, or involves services by, suchdirector or officer with respect to an employee benefit plan of the Company or any of itsaffiliates, other than solely as a participant or beneficiary of such a plan; and (ii) if theIndemnitee has acted in good faith and in a manner that the Indemnitee reasonably believed to be inthe interest of the participants and beneficiaries of an employee benefit plan, the Indemniteeshall be deemed to have acted in a manner not opposed to the best interests of the Company forpurposes of this Agreement.(k) References herein to one gender shall be held to include the other gender as the contextrequires.2. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnifyIndemnitee to the fullest extent permitted by applicable law, as such may be amended from time totime. In furtherance of the foregoing indemnification, and without limiting the generalitythereof:(a) Proceedings Other Than Proceedings by or in the Right of the Company. Except asprovided in Section 9 hereof, Indemnitee shall be entitled to the rights of indemnificationprovided in this Section 2(a) if, by reason of his Corporate Status, the Indemnitee is orwas, or is or was threatened to be made, a party to or is otherwise involved in any Proceedingother than a Proceeding by or in the right of the Company to procure a judgment in its favor (whichProceedings are addressed in Section 2(b)). Pursuant to this Section 2(a),Indemnitee shall be indemnified against all Expenses, judgments, penalties, fines, liabilities andamounts paid in settlement actually and reasonably incurred by Indemnitee, or on Indemnitee’sbehalf, in connection with such Proceeding or any claim, issue or matter therein, but only if theIndemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or notopposed to the best interests of the Company, and with respect to any criminal Proceeding, had noreasonable cause to believe the Indemnitee’s conduct was unlawful.
 
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(b) Proceedings by or in the Right of the Company. Except as provided in Section9 hereof, Indemnitee shall be entitled to the rights of indemnification provided in thisSection 2(b) if, by reason of Indemnitee’s Corporate Status, the Indemnitee is or was, oris or was threatened to be made, a party to or is or was otherwise involved in any Proceedingbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to thisSection 2(b), Indemnitee shall be indemnified against all Expenses actually and reasonablyincurred bythe Indemnitee, or on the Indemnitee’s behalf, in connection with such Proceeding or anyclaim, issue or matter therein, but only if the Indemnitee acted in good faith and in a manner theIndemnitee reasonably believed to be in or not opposed to the best interests of the Company;provided, however, if applicable law so provides, no indemnification for suchExpenses shall be made in respect of any claim, issue or matter in such Proceeding as to which theIndemnitee shall have been adjudged liable to the Company unless (and only to the extent that) theCourt of Chancery of the State of Delaware or the court in which such Proceeding was brought shalldetermine upon application that, despite the adjudication of liability but in view of all thecircumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for suchexpenses that the Court of Chancery or such other court shall deem proper. Anything in thisAgreement to the contrary notwithstanding, if the Indemnitee, by reason of the Indemnitee’sCorporate Status, is or was, or is or was threatened to be made, a party to any Proceeding by or inthe right of the Company to procure a judgment in its favor, then the Company shall not indemnifythe Indemnitee for any judgment, fines, or amounts paid in settlement to the Company in connectionwith such Proceeding.(c) Overriding Right to Indemnification if Successful on the Merits. Notwithstandingany other provision of this Agreement, to the extent that Indemnitee is or was, by reason of hisCorporate Status or otherwise, a party to and is or was successful, on the merits or otherwise, inany Proceeding, he shall be indemnified to the maximum extent permitted by applicable law, as suchmay be amended from time to time, against all Expenses actually and reasonably incurred by him oron his behalf in connection therewith. If Indemnitee is not wholly successful in such Proceedingbut is successful, on the merits or otherwise, as to one or more but less than all claims, issuesor matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actuallyand reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with eachsuccessfully 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 withoutprejudice, shall be deemed to be a successful result as to such claim, issue or matter.3. Contribution.(a) To the fullest extent permissible under applicable law, whether or not the indemnificationprovided in Section 2 hereof is available, in respect of any threatened, pending orcompleted action, suit or proceeding in which the Company may be jointly liable with Indemnitee (orcould be if joined in such action, suit or proceeding), the Company shall pay, in the firstinstance, the entire amount of any judgment or settlement of such action, suit or proceedingwithout requiring Indemnitee to contribute to such payment, and the Company hereby waives andrelinquishes any right of contribution it may have against Indemnitee. The Company shall not enterinto any settlement of any action, suit or proceeding in which the Company may be jointly liablewith Indemnitee (or could be if joined in such action, suit or proceeding) unless such settlementprovides for a full and final release of all claims asserted against Indemnitee.
 
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(b) To the fullest extent permissible under applicable law, without diminishing or impairingthe obligations of the Company set forth in the preceding subparagraph, if, for any reason,Indemnitee shall elect or be required to pay all or any portion of any judgmentor settlement in any threatened, pending or completed action, suit or proceeding in which theCompany is jointly liable with Indemnitee (or would be if joined in such action, suit orproceeding), the Company shall contribute to the amount of Expenses, judgments, fines, liabilitiesand amounts paid in settlement actually and reasonably incurred and paid or payable by Indemniteein proportion to the relative benefits received by the Company and all officers, directors oremployees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or wouldbe if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the otherhand, from the transaction from which such action, suit or proceeding arose; provided,however, that the proportion determined on the basis of relative benefit may, to the extentnecessary to conform to law, be further adjusted by reference to the relative fault of the Companyand all officers, directors or employees of the Company, other than Indemnitee, who are jointlyliable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand,and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses,judgments, fines, liabilities or settlement amounts, as well as any other equitable considerationswhich the law may require to be considered. The relative fault of the Company and all officers,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.(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claimof contribution brought by or on behalf of officers, directors or employees of the Company, otherthan Indemnitee, who may be jointly liable with Indemnitee.(d) To the fullest extent permissible under applicable law, if the indemnification providedfor in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieuof indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether forjudgments, fines, liabilities, penalties, excise taxes, amounts paid or to be paid in settlementand/or for Expenses, in connection with any claim relating to an indemnifiable event under thisAgreement, in such proportion as a majority of Disinterested Directors (even though less than aquorum) deem fair and reasonable in light of all of the circumstances of such Proceeding in orderto reflect (i) the relative benefits received by the Company (together with its directors,officers, employees and agents) 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/ortransaction(s).4. Indemnification for Expenses of a Witness. Notwithstanding any other provision ofthis Agreement, to the extent that Indemnitee is or was, by reason of his Corporate Status orotherwise, a witness, or is or was made (or asked) to respond to discovery requests, in anyProceeding to which Indemnitee is not a party, he shall be indemnified to the fullest extentpermissible under applicable law against all Expenses actually and reasonably incurred by him or onhis behalf in connection therewith.
 
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5. Advancement of Expenses. Notwithstanding any other provision of this Agreement,but subject to Section 8(e) hereof, the Company shall advance all Expenses incurred by oron behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s CorporateStatus or otherwise within thirty (30) calendar days after the receipt by the Company of astatement or statements from Indemnitee requesting such advance or advances from time to time,whether prior to or after final disposition of such Proceeding. Such statement or statements shallreasonably evidence the Expenses incurred by or on behalf of Indemnitee and for which advancementis requested, and shall include or be preceded or accompanied by an undertaking by or on behalf ofIndemnitee to repay any Expenses advanced if it shall finally be determined (under the procedures,and subject to the presumptions, set forth in Section 6 and Section 7 hereof) thatIndemnitee is not entitled to be indemnified against such Expenses. Such undertaking shall besufficient for purposes of this Section 5 if it is substantially in the form attachedhereto as Exhibit A. Any advances and undertakings to repay pursuant to this Section5 shall be unsecured and interest-free. The Indemnitee shall be entitled to advancement ofExpenses as provided in this Section 5 regardless of any determination by or on behalf ofthe Company that the Indemnitee has not met the standards of conduct set forth in Sections2(a) and 2(b) hereof.6. 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 DGCL 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 the extent permitted by applicable laws, rules, regulations and orders of anygovernmental body, Indemnitee shall give the Company notice in writing as soon as practicable ofany claim made against Indemnitee for which indemnification will or could be sought under thisAgreement. To obtain indemnification under this Agreement, the Indemnitee shall submit to theCompany a written request for indemnification, including therein or therewith, except to the extentpreviously provided to the Company in connection with a request or requests for advancementpursuant to Section 5 hereof, a statement or statements reasonably evidencing all Expensesincurred or paid by or on behalf of the Indemnitee and for which indemnification is requested,together with such documentation and information as is reasonably available to Indemnitee and as isreasonably necessary for the Company to determine whether and to what extent Indemnitee is entitledto indemnification. The Secretary of the Company shall, promptly upon receipt of such a requestfor indemnification, advise the Board of Directors in writing that Indemnitee has requestedindemnification. Failure to provide any notice required hereby shall not impair Indemnitee’srights of indemnification and contribution under this Agreement except to the extent that suchfailure to provide notice actually and materially prejudices the rights of the Company to defendany action or proceeding which is the basis of the claimed indemnification; provided,however, that such failure to provide notice will not be deemed to materially prejudice therights of the Company where Indemnitee is prohibited by any applicable laws, rules, regulations ororders of any governmental body from complying with the notification procedures contained in thisSection 6(a).
 
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(b) Upon written request by Indemnitee for indemnification pursuant to the second sentence ofSection 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shallbe made by the following person or persons, who shall be empowered to make such determination: (i)if a Change in Control shall have occurred, by Independent Counsel (unless Indemnitee shall requestin writing that such determination be made by the Board of Directors (or a committee thereof) inthe manner provided for in clause (ii) of this Section 6(b)) in a written opinion to theBoard of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change ofControl shall not have occurred, (A)(1) by Independent Counsel, if Indemnitee shall request inwriting that such determination be made by Independent Counsel upon making his or her request forindemnification pursuant to the second sentence of Section 6(a), (2) by the Board ofDirectors of the Company, by a majority vote of Disinterested Directors even though less than aquorum, or (3) by a committee of Disinterested Directors designated by majority vote ofDisinterested Directors, even though less than a quorum, or (B) if there are no such DisinterestedDirectors or, even if there are such Disinterested Directors, if the Board of Directors, by themajority vote of Disinterested Directors, so directs, by Independent Counsel in a written opinionto the Board of Directors, a copy of which shall be delivered to Indemnitee.(c) If the determination of entitlement to indemnification is to be made by IndependentCounsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected by theBoard of Directors and approved by Indemnitee (such approval not to be unreasonably withheld,delayed or conditioned). Upon failure of the Board of Directors to so select, or upon the failureof Indemnitee to so approve, such Independent Counsel within 20 days after submission by Indemniteeof a written request for indemnification pursuant to Section 6(a) hereof, the IndependentCounsel shall be selected by the Court of Chancery of the State of Delaware or such other person orbody as the Indemnitee and the Company may agree in writing. Such determination of entitlement toindemnification shall be made not later than forty-five (45) days after receipt by the Company of awritten request for indemnification. If the person making such determination shall determine thatIndemnitee is entitled to indemnification as to part (but not all) of the application forindemnification, such person shall reasonably pro-rate such part of indemnification among suchclaims, issues or matters. If it is so determined that Indemnitee is entitled to indemnification,payment to Indemnitee shall be made within ten (10) days after such determination. The Companyshall pay any and all reasonable fees and expenses of Independent Counsel incurred by suchIndependent Counsel in connection with acting pursuant to Section 6(b) hereof, and theCompany shall pay all reasonable fees and expenses incident to the procedures of this Section6(c), regardless of the manner in which such Independent Counsel was selected or appointed.(d) In connection with any determination (including a determination by the Court of Chanceryof the State of Delaware (or other court of competent jurisdiction)) with respect to entitlement toindemnification hereunder, the burden of proof shall be on the Company to establish that Indemniteeis not entitled to indemnification and any decision that Indemnitee is not entitled toindemnification must be supported by clear and convincing evidence. The failure of the Company(including by its directors or Independent Counsel) to have made a determination prior to thecommencement of any action pursuant to this Agreement that indemnification is proper in thecircumstances because Indemnitee has met the applicable standard of conduct, or an actualdetermination by the Company (including by its directors orIndependent Counsel) that Indemnitee has not met such applicable standard of conduct, shallnot be a defense to the action or create a presumption that Indemnitee has not met the applicablestandard of conduct.
 
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(e) In making a determination with respect to whether Indemnitee acted in good faith and in amanner that Indemnitee reasonably believed to be in or not opposed to the best interests of theCompany, the person or persons or entity making such determination shall presume that Indemniteeacted in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed tothe best interests of the Company. Anyone seeking to overcome this presumption shall have theburden of proof and any decision that Indemnitee is not entitled to indemnification must besupported by clear and convincing evidence. Any action, or failure to act, by Indemnitee based onIndemnitee’s good faith reliance on the records or books of account of the Enterprise, includingfinancial statements, or on information supplied to Indemnitee by the officers of the Enterprise inthe course of their duties, or on the advice of legal counsel for the Enterprise or 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 shall not, in andof itself, constitute grounds for an adverse determination with respect to whether Indemnitee actedin good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to thebest interests of the Company. In addition, the knowledge and/or actions, or failure to act, ofany director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee forpurposes of determining the right to indemnification under this Agreement.(f) If the person, persons or entity empowered or selected under this Section 6 todetermine whether Indemnitee is entitled to indemnification shall not have made a determinationwithin forty-five (45) days after receipt by the Company of the request therefor, the requisitedetermination of entitlement to indemnification shall be deemed to have been made and Indemniteeshall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a materialfact, or an omission of a material fact necessary to make Indemnitee’s statement not materiallymisleading, in connection with the request for indemnification, or (ii) a prohibition of suchindemnification under applicable law; provided, however, that such forty-five(45)-day period may be extended for a reasonable time, not to exceed an additional thirty (30)days, if the person, persons or entity making such determination with respect to entitlement toindemnification in good faith requires such additional time to obtain or evaluate documentationand/or information relating thereto.(g) 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 or member of the Board ofDirectors shall act reasonably and in good faith in making a determination regarding theIndemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (includingattorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person,persons or entity making such determination shall be borne by the Company (irrespective of thedetermination as to Indemnitee’s entitlement toindemnification) and the Company hereby agrees to indemnify and hold Indemnitee harmlesstherefrom.
 
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(h) 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 Proceeding to which Indemnitee is or becomes 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 Proceeding. Anyone seeking to overcome this presumption shall have the burden ofproof and the burden of persuasion by clear and convincing evidence.(i) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,order, settlement or conviction, or upon a plea of *nolo contendere*or its equivalent, shall not(except as otherwise expressly provided in this Agreement) of itself adversely affect the right ofIndemnitee to indemnification under this Agreement or create a presumption that Indemnitee did notact in good faith and in a manner which he reasonably believed to be in or not opposed to the bestinterests of the Company or, with respect to any criminal Proceeding, that Indemnitee hadreasonable cause to believe that his conduct was unlawful.7. Remedies of Indemnitee.(a) In the event that (i) a determination is made pursuant to Section 6 of thisAgreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancementof Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) nodetermination of entitlement to indemnification is made pursuant to Section 6(b) of thisAgreement within forty-five (45) days after receipt by the Company of the request forindemnification, (iv) payment of indemnification is not made pursuant to this Agreement withinfifty-five (55) days after receipt by the Company of a written request therefor or (v) payment ofindemnification is not made within ten (10) days after a determination has been made thatIndemnitee is entitled to indemnification or such determination is deemed to have been madepursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication inan appropriate court of the State of Delaware, or in any other court of competent jurisdiction, ofIndemnitee’s entitlement to such indemnification and/or advancement of Expenses. The Company shallnot oppose Indemnitee’s right to seek any such adjudication.(b) In the event that a determination shall have been made pursuant to Section 6(b) ofthis Agreement that Indemnitee is not entitled to indemnification, any judicial proceedingcommenced pursuant to this Section 7 shall be conducted in all respects as a de novo trialon the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination underSection 6(b).(c) If a determination shall have been made pursuant to Section 6(b) of this Agreementthat Indemnitee is entitled to indemnification, the Company shall be bound by such determination inany judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement byIndemnitee of a material fact, or an omission of a material fact necessary tomake Indemnitee’s misstatement not materially misleading in connection with the applicationfor indemnification, or (ii) a prohibition of such indemnification under applicable law.
 
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(d) In the event that (a) the Indemnitee commences a proceeding seeking (1) to establish orenforce the Indemnitee’s entitlement to indemnification or advancement pursuant to this Agreement,(2) to otherwise enforce Indemnitee’s rights under or to interpret the terms of this Agreement, (3)to recover damages for breach of this Agreement, (4) to establish or enforce Indemnitee’sentitlement to indemnification or advancement pursuant to the Certificate or the Bylaws, or (5) toenforce or interpret the terms of any liability insurance policy maintained by the Company (eachsuch proceeding an “Indemnitee Enforcement Proceeding”), or (b) the Company commences a proceedingagainst the Indemnitee seeking (1) to recover, pursuant to an undertaking or otherwise, amountspreviously advanced to Indemnitee, (2) to enforce the Company’s rights under or to interpret theterms of this Agreement, or (3) to recover damages for breach of this Agreement (each suchproceeding a “Company Enforcement Proceeding” and together with each form of Indemnitee EnforcementProceeding, an “Enforcement Proceeding”), then the Indemnitee shall be entitled to recover from theCompany, and shall be indemnified by the Company against, any and all Expenses actually andreasonably incurred by or on behalf of such Indemnitee in connection with such EnforcementProceeding; 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 onwhich Indemnitee does not prevail, unless (and only to the extent that) the Court of Chancery ofthe State of Delaware or the court in which such Proceeding was brought shall determine uponapplication that, despite the adjudication in respect of such claim, issue or matter but in view ofall the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnityfor such expenses that the Court of Chancery or such other court shall deem proper. The Companyalso shall be required to advance all Expenses actually and reasonably incurred by or on behalf ofthe Indemnitee in connection with any Enforcement Proceeding in advance of the final disposition ofsuch proceeding within thirty (30) days after the receipt by the Company of a written request forsuch advance or advances from time to time, which request shall include or be accompanied by astatement or statements reasonably evidencing the Expenses incurred by or on behalf of theIndemnitee and for which advancement is requested; provided, however, that any suchadvancement shall be made only after the Company receives an undertaking by or on behalf of theIndemnitee to repay any Expenses so advanced if it shall be finally determined that Indemnitee isnot entitled to be indemnified against such Expenses.(e) The Company shall be precluded from asserting in any judicial proceeding commencedpursuant to this Section 7 that the procedures and presumptions of this Agreement are notvalid, binding and enforceable and shall stipulate in any such court that the Company is bound byall the provisions of this Agreement.(f) Notwithstanding anything in this Agreement to the contrary, no determination as toentitlement to indemnification under this Agreement shall be required to be made prior to the finaldisposition of the Proceeding.
 
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8. Non-Exclusivity; 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, the Bylaws, any Insurance Policy, any agreement, a vote of stockholders, a resolutionof directors or otherwise. No amendment, alteration or repeal of this Agreement or of anyprovision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect ofany action taken or omitted by such Indemnitee in his Corporate Status or otherwise prior to suchamendment, alteration or repeal. To the extent that a change in the DGCL, whether by statute orjudicial decision, permits greater indemnification than would be afforded currently under theCertificate, the Bylaws and this Agreement, it is the intent of the parties hereto that Indemniteeshall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedyherein conferred is intended to be exclusive of any other right or remedy, and every other rightand remedy shall be cumulative and in addition to every other right and remedy given hereunder ornow or hereafter existing at law or in equity or otherwise. The assertion or employment of anyright or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employmentof any other right or remedy. Notwithstanding anything in this Agreement to the contrary, theindemnification and contribution provided for in this Agreement will remain in full force andeffect regardless of any investigation made by or on behalf of Indemnitee or any of Indemnitee’sagents.(b) To the extent that the Company maintains any Insurance Policy or any insurance policy orpolicies providing liability insurance for any other corporation, partnership, limited liabilitycompany, joint venture, trust, employee benefit plan or other Enterprise that such person serves atthe request of the Company, Indemnitee shall be covered by such policy or policies in accordancewith its or their terms to the maximum extent of the coverage available for any director, officer,employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of anotice of a claim pursuant to the terms hereof, the Company has any Insurance Policy in effect, theCompany shall give prompt notice of the commencement of such Proceeding to the insurers inaccordance with the procedures set forth in the respective policies. The Company shall thereaftertake 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) Except as otherwise agreed between the Company, on the one hand, and Indemnitee or anotherindemnitor of Indemnitee, on the other, in the event of any payment to or on behalf of theIndemnitee under this Agreement, the Company shall be subrogated to the extent of such payment toall of the rights of recovery of Indemnitee, who shall execute all papers reasonably required andtake all action reasonably necessary to secure such rights, including execution of such documentsas are necessary to enable the Company to bring suit to enforce such rights. For the avoidance ofdoubt, the Company shall make any and all payments and reimburse Indemnitee’s costs and expenses,if any, in connection with Indemnitee’s preparation and execution of all papers and taking of anyand all actions referred to in this Section 8(c).
 
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(d) Except as otherwise agreed between the Company, on the one hand, and Indemnitee or anotherindemnitor of Indemnitee, on the other, the Company shall not be liableunder this Agreement to make any payment of amounts otherwise indemnifiable hereunder if andto the extent that Indemnitee has otherwise actually received such payment under any InsurancePolicy or any other insurance policy relating to an Enterprise other than the Company, Companycontract, Company agreement or otherwise (except to the extent that Indemnitee is required (bycourt order or otherwise) to return such payment or to surrender it to the Company).(e) Except as otherwise agreed between the Company, on the one hand, and Indemnitee or anotherindemnitor of Indemnitee, on the other, the Company’s obligation to indemnify or advance Expenseshereunder to Indemnitee who is or was serving at the request of the Company as a director, officer,employee or agent of any other corporation, partnership, limited liability company, joint venture,trust, employee benefit plan or other Enterprise shall be reduced by any amount Indemnitee hasactually received as indemnification or advancement of expenses from the Company or any InsurancePolicy (except to the extent that Indemnitee is required (by court order or otherwise) to returnsuch payment or to surrender it to the Company.9. Exception to Right of Indemnification. Notwithstanding any provision in thisAgreement, the Company shall not be obligated under this Agreement to make any indemnity inconnection with any claim made against Indemnitee:(a) for which payment has actually been made to or on behalf of Indemnitee under any InsurancePolicy, or other indemnity provision or otherwise to which the Company is a party, except as mayotherwise be agreed between the Company, on the one hand, and Indemnitee or another indemnitor ofIndemnitee, on the other;(b) for an accounting of profits made from the purchase and sale (or sale and purchase) byIndemnitee of securities of the Company within the meaning of Section 16(b) of the Act, as amended,or similar provisions of state statutory law or common law; or(c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against theCompany or any of its direct or indirect subsidiaries or the directors, officers, employees orother indemnitees of the Company or its direct or indirect subsidiaries (except where specified tothe contrary in this Agreement, in each instance to be governed by the terms of the applicablesection herein), unless (i) the Board of Directors of the Company authorized the Proceeding (or anypart of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification,in its sole discretion, pursuant to the powers vested in the Company under applicable law.10. Duration of Agreement. All agreements and obligations of the Company containedherein shall continue until ten (10) years after the end of any period Indemnitee is an officer ordirector of the Company (or is or was serving at the request of the Company as a director, officer,employee or agent of another corporation, partnership, limited liability company, joint venture,trust or other Enterprise) but shall continue thereafter so long as Indemnitee shall be subject toany Proceeding (or any proceeding commenced under Section 7 hereof) by reason of hisCorporate Status or otherwise, whether or not he is acting or serving in any such capacity at thetime any liability or expense is incurred for which indemnification canbe provided under this Agreement, notwithstanding such ten (10) year period. This Agreementshall be binding upon and inure to the benefit of and be enforceable by the parties hereto andtheir respective successors (including any direct or indirect successor by purchase, merger,consolidation or otherwise to all or substantially all of the business or assets of the Company),assigns, spouses, heirs, executors and personal and legal representatives.
 
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11. 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 an officeror director of the Company, and the Company acknowledges that Indemnitee is relying upon thisAgreement in serving as an officer or director 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, except for theorganizational documents of the Company (including, but not limited to, the Certificate and theBylaws), the Amended and Restated Shareholders Agreement of the Company, any employment agreementbetween Indemnitee and the Company and any Insurance Policy or other applicable insurance policy.(c) The Company represents that this Agreement has been approved by the Company’s Board ofDirectors.12. Severability. The invalidity or unenforceability of any provision hereof shall inno way affect the validity or enforceability of any other provision hereof. Without limiting thegenerality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnificationrights to the fullest extent permitted by applicable laws. In the event any provision hereofconflicts with any applicable law, such provision shall be deemed modified, consistent with theaforementioned intent, to the extent necessary to resolve such conflict.13. 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.14. Notice By Indemnitee. To the extent permitted by applicable laws, rules,regulations and orders of any governmental body, Indemnitee agrees promptly to notify the Companyin writing upon being served with or otherwise receiving any summons, citation, subpoena,complaint, indictment, information or other document relating to any Proceeding or matter which maybe subject to indemnification covered hereunder. The failure to so notify the Company shall notrelieve the Company of any obligation which it may have to Indemnitee under this Agreement orotherwise unless and only to the extent that such failure or delay materially prejudices theCompany; provided, however, that such failure to provide notice will not be deemedto materially prejudice the rights of the Company where Indemnitee is prohibitedby any applicable laws, rules, regulations and orders of any governmental body from complyingwith the notification procedures contained in this Section 14.(a.15. Confidentiality. From the date hereof, neither the Company or the Indemniteeshall issue, or cause or permit the publication by any of their respective affiliates orrepresentatives of, any press release or other announcement with respect to this Agreement unlesssuch party has provided such press release or other announcement to the other party hereto andprovided such other party the opportunity to review and shall not include any information whichshall have been objected to by such other party. Nothing herein shall be deemed to limit orrestrict the submission and/or disclosure of this Agreement or any payments hereunder to anygovernmental body or as otherwise required by any applicable law, rule, regulation or order of anygovernmental body.
 
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16. Notices. Unless otherwise provided herein, any notice required or permitted underthis Agreement shall be deemed effective upon the earlier of (a) actual receipt, or (b) (i) one (1)business day after the date of delivery by confirmed facsimile transmission, (ii) one (1) businessday after the business day of deposit with a nationally recognized overnight courier service fornext day delivery, freight prepaid, or (iii) three (3) business days after deposit with the UnitedStates Post Office for delivery by registered or certified mail, postage prepaid. Any such noticeshall be in writing and shall be addressed to the party to be notified at the address indicated forsuch party indicated on the signature pages or exhibits hereto, as otherwise set forth in thisSection 17, or at such other address as such party may designate by ten (10) days’ advancewritten notice to the other parties. All communications shall be sent:(a) To Indemnitee at the address set forth below Indemnitee’s signature hereto;(b) To the Company at:Broadview Networks Holdings, Inc.