(b) “Corporate Status” means the status of a person as a present or former director, officer,employee or agent of the Company or as a director, trustee, officer, partner, manager, managingmember, fiduciary, employee or agent of any other foreign or domestic corporation, partnership,limited liability company, joint venture, trust, employee benefit plan or other enterprise thatsuch person is or was serving in such capacity at the request of the Company. As a clarificationand without limiting the circumstances in which Indemnitee may be serving at the request of theCompany, service by Indemnitee shall be deemed to be at the request of the Company if Indemniteeserves or served as a director, trustee, officer, partner, manager, managing member, fiduciary,employee or agent of any corporation, partnership, limited liability company, joint venture, trust,employee benefit plan or other enterprise (i) of which a majority of the voting power or equityinterest is owned directly or indirectly by the Company or (ii) the management of which iscontrolled directly or indirectly by the Company.(c) “Disinterested Director” means a director of the Company who is not and was not a party tothe Proceeding in respect of which indemnification and/or advance of Expenses is sought byIndemnitee.(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.(e) “Expenses” means any and all reasonable and out-of-pocket attorneys’ fees and costs,retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemedreceipt of any payments under this Agreement, ERISA excise taxes and penalties and any otherdisbursements or expenses incurred in connection with prosecuting, defending, preparing toprosecute or defend, investigating, being or preparing to be a witness in or otherwiseparticipating in a Proceeding. Expenses shall also include Expenses incurred in connection withany appeal resulting from any Proceeding including, without limitation, the premium, security forand other costs relating to any cost bond, supersedeas bond or other appeal bond or its equivalent.(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced inmatters of corporation law and neither is, nor in the past five years has been, retained torepresent: (i) the Company or Indemnitee in any matter material to either such party (other thanwith respect to matters concerning Indemnitee under this Agreement or of other indemnitees undersimilar indemnification agreements), or (ii) any other party to or participant or witness in theProceeding giving rise to a claim for indemnification or advance of Expenses hereunder.Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who,under the applicable standards of professional conduct then prevailing, would have a conflict ofinterest in representing either the Company or Indemnitee in an action to determine Indemnitee’srights under this Agreement.
 
-2-

 
(g) “Proceeding” means any threatened, pending or completed action, suit, arbitration,alternate dispute resolution mechanism, investigation, inquiry, administrative hearingor any other proceeding, whether brought by or in the right of the Company or otherwise andwhether of a civil (including intentional or unintentional tort claims), criminal, administrativeor investigative (formal or informal) nature, including any appeal therefrom, including thosepending or completed on or before the Effective Date. If Indemnitee reasonably believes that agiven situation may lead to or culminate in the institution of a Proceeding, such situation shallalso be considered a Proceeding.Section 2. Services by Indemnitee. Indemnitee will serve as a director of theCompany. However, this Agreement shall not impose any independent obligation on Indemnitee or theCompany to continue Indemnitee’s service to the Company. This Agreement shall not be deemed anemployment contract between the Company (or any other entity) and Indemnitee.Section 3. General. The Company shall indemnify, and advance Expenses to, Indemnitee(a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Delawarelaw in effect on the Effective Date and as amended from time to time; provided, however, that nochange in Delaware law shall have the effect of reducing the benefits available to Indemniteehereunder based on Delaware law as in effect on the Effective Date. The rights of Indemniteeprovided in this Section 3 shall include, without limitation, the rights set forth in the othersections of this Agreement, including any additional indemnification permitted by Section 145(including subsection (f)) of the Delaware General Corporation Law (the “DGCL”).Section 4. Proceedings Other Than Proceedings by or in the Right of the Company.Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, byreason of his Corporate Status, he is, or is threatened to be, made a party to or a witness in anythreatened, pending, or completed Proceeding, other than a Proceeding by or in the right of theCompany. Pursuant to this Section 4, Indemnitee shall be indemnified against all judgments,penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurredby him or on his behalf in connection with a Proceeding by reason of his Corporate Status ifIndemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or notopposed to the best interests of the Company and, with respect to a criminal Proceeding, had noreasonable cause to believe his conduct was unlawful.Section 5. Proceedings by or in the Right of the Company. Indemnitee shall beentitled to the rights of indemnification provided in this Section 5 if, by reason of his CorporateStatus, he is, or is threatened to be, made a party to or a witness in any threatened, pending orcompleted Proceeding brought by or in the right of the Company to procure a judgment in its favor.Pursuant to this Section 5, Indemnitee shall be indemnified against all amounts paid in settlementand all Expenses actually and reasonably incurred by him or on his behalf in connection with suchProceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to bein or not opposed to the best interests of the Company and except that no indemnification shall bemade in respect of any Proceeding where the Indemnitee has been adjudged to be liable to theCompany.
 
-3-

 
Section 6. Court-Ordered Indemnification. Notwithstanding any other provision of thisAgreement, the Court of Chancery of the State of Delaware or the court in which such action or suitwas brought may determine upon application that, despite the adjudication of liability butin view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled toindemnity for any claim, issue or matter.Section 7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.Notwithstanding any other provision of this Agreement, and without limiting any such provision, tothe extent that Indemnitee was or is, by reason of his Corporate Status, made a party to (orotherwise becomes a participant in) any Proceeding and is successful, on the merits or otherwise,in the defense of such Proceeding, Indemnitee shall be indemnified for all Expenses actually andreasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not whollysuccessful in such Proceeding but is successful, on the merits or otherwise, as to one or more butless than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemniteeunder this Section 7 for all Expenses actually and reasonably incurred by him or on his behalf inconnection with each such claim, issue or matter, allocated on a reasonable and proportionatebasis. For purposes of this Section 7 and, without limitation, the termination of any claim, issueor matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be asuccessful result as to such claim, issue or matter.Section 8. Advance of Expenses for a Party. If, by reason of Indemnitee’s CorporateStatus, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall,without requiring a preliminary determination of Indemnitee’s ultimate entitlement toindemnification hereunder, advance all reasonable Expenses incurred by or on behalf of Indemniteein connection with such Proceeding within ten days after the receipt by the Company of a statementor statements requesting such advance or advances from time to time, whether prior to or afterfinal disposition of such Proceeding. Such statement or statements shall set forth in reasonabledetail the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by awritten undertaking by or on behalf of Indemnitee, in substantially the form attached hereto asExhibit A or in such form as may be required under applicable law as in effect at the timeof the execution thereof, to reimburse the portion of any Expenses advanced to Indemnitee relatingto any claim, issue or matter in the Proceeding as to which it is ultimately determined that theIndemnitee is not entitled to be indemnified and which has not been successfully resolved asdescribed in Section 7 of this Agreement. To the extent that Expenses advanced to Indemnitee donot relate to a specific claim, issue or matter in the Proceeding, such Expenses shall be allocatedon a reasonable and proportionate basis. The undertaking required by this Section 8 shall be anunlimited general obligation by or on behalf of Indemnitee and shall be accepted without referenceto Indemnitee’s financial ability to repay such advanced Expenses and without any requirement topost security therefor.Section 9. Indemnification and Advance of Expenses of a Witness. Notwithstanding anyother provision of this Agreement, to the extent that Indemnitee is or may be, by reason of hisCorporate Status, made a witness or otherwise required to participate in any Proceeding, whetherinstituted by the Company or any other party, and to which Indemnitee is not a party, he shall beadvanced all reasonable Expenses and indemnified against all Expenses actually and reasonablyincurred by him or on his behalf in connection therewith within ten days after the receipt by theCompany of a statement or statements requesting such advance or advances from time to time, whetherprior to or after final disposition of such Proceeding. Such statement or statements shall setforth in reasonable detail the Expenses incurred by Indemnitee.
 
-4-

 
Section 10. Procedure for Determination of Entitlement to Indemnification.(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company awritten request, 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. Indemnitee may submit one or more such requests fromtime to time and at such time(s) as Indemnitee deems appropriate in his sole discretion. Theofficer of the Company receiving any such request from Indemnitee shall, promptly upon receipt ofsuch a request for indemnification, advise the Board of Directors in writing that Indemnitee hasrequested indemnification.(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a) above, adetermination, if required by applicable law, with respect to Indemnitee’s entitlement theretoshall promptly be made in the specific case: (i) if a Change in Control shall have occurred, byIndependent Counsel, in a written opinion to the Board of Directors, a copy of which shall bedelivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approvedby the Board of Directors in accordance with Section 145(d)(3) of the DGCL, which approval will notbe unreasonably withheld or delayed; or (ii) if a Change in Control shall not have occurred, (A) bythe Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, (B) bya majority vote of a committee of Disinterested Directors designated by a majority of DisinterestedDirectors even if less than a quorum, (C) if Independent Counsel has been selected by the Board ofDirectors in accordance with Section 145(d)(3) of the DGCL and approved by the Indemnitee, whichapproval shall not be unreasonably withheld or delayed, by Independent Counsel, in a writtenopinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (D) if sodirected by the Board of Directors, by the stockholders of the Company. If it is so determinedthat Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten daysafter such determination. Indemnitee shall cooperate with the person, persons or entity makingsuch determination with respect to Indemnitee’s entitlement to indemnification, including providingto such person, persons or entity upon reasonable advance request any documentation or informationwhich is not privileged or otherwise protected from disclosure and which is reasonably available toIndemnitee and reasonably necessary to such determination in the discretion of the Board ofDirectors or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(b). AnyExpenses incurred by Indemnitee in so cooperating with the person, persons or entity making suchdetermination shall be borne by the Company (irrespective of the determination as to Indemnitee’sentitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmlesstherefrom.(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one isappointed.
 
-5-

 
Section 11. Presumptions; Effect of Certain Proceedings; No Imputed Knowledge**;**Pleading.(a) In making any 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 if Indemnitee has submitted arequest for indemnification in accordance with Section 10(a) of this Agreement, and theCompany shall have the burden of proof to overcome that presumption in connection with the makingof any determination contrary to that presumption.(b) The knowledge and/or actions, or failure to act, of any other director, officer, employeeor agent of the Company or any other director, trustee, officer, partner, manager, managing member,fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limitedliability company, joint venture, trust, employee benefit plan or other enterprise shall not beimputed to Indemnitee for purposes of determining any other right to indemnification under thisAgreement.(c) In any Proceeding with respect to entitlement to indemnification, the Company shall havethe burden of pleading with particularity or providing a detailed writing setting forth the allegedfactual basis for each defense to Indemnitee’s claim for indemnification and, without limiting thegenerality of the foregoing, the pleading or writing filed by the Company objecting to the grantingof indemnification shall be verified and shall set forth a detailed statement of the time and placeof any act, omission or statement by Indemnitee, or others, which allegedly supports any suchdefense.Section 12. Remedies of Indemnitee.(a) If (i) a determination is made pursuant to Section 10(b) of this Agreement that Indemniteeis not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timelymade pursuant to Section 8 of this Agreement, (iii) no determination of entitlement toindemnification shall have been made pursuant to Section 10(b) of this Agreement within 60 daysafter receipt by the Company of the request for indemnification, (iv) payment of indemnification isnot made pursuant to Section 7 of this Agreement within ten days after receipt by the Company of awritten request therefor, or (v) payment of indemnification pursuant to any other section of thisAgreement or the charter or Bylaws of the Company is not made within ten days after a determinationhas been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to anadjudication by the Court of Chancery of the State of Delaware or in any other court of competentjurisdiction of his entitlement to such indemnification or advance of Expenses. Alternatively,Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitratorpursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemniteeshall commence a proceeding seeking an adjudication or an award in arbitration within 180 daysfollowing the date on which Indemnitee first has the right to commence such proceeding pursuant tothis Section 12(a); provided, however, that the foregoing time limit shall not apply to aproceeding brought by Indemnitee to enforce his rights under Section 7 of this Agreement. Exceptas set forth herein, the provisions of Delaware law (without regard to its conflicts of laws rules)shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek anysuch adjudication or award in arbitration.
 
-6-

 
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 12,Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the casemay be, under this Agreement and the Company shall have the burden of proving that Indemnitee isnot entitled to indemnification or advance of Expenses, as the case may be. IfIndemnitee commences a judicial proceeding or arbitration pursuant to this Section 12,Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 8 ofthis Agreement until a final determination is made with respect to Indemnitee’s entitlement toindemnification (as to which all rights of appeal have been exhausted or lapsed). The Companyshall, to the fullest extent not prohibited by law, be precluded from asserting in any judicialproceeding or arbitration commenced pursuant to this Section 12 that the procedures andpresumptions of this Agreement are not valid, binding and enforceable and shall stipulate in anysuch court or before any such arbitrator that the Company is bound by all of the provisions of thisAgreement.(c) If a determination shall have been made pursuant to Section 10(b) of this Agreement thatIndemnitee is entitled to indemnification, the Company shall be bound by such determination in anyjudicial proceeding or arbitration commenced pursuant to this Section 12, absent a misstatement byIndemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’sstatement not materially misleading, in connection with the request for indemnification.(d) In the event that Indemnitee, pursuant to this Section 12, seeks a judicial adjudicationof or an award in arbitration to enforce his rights under, or to recover damages for breach of,this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnifiedby the Company for, any and all Expenses actually and reasonably incurred by him or on his behalfin such judicial adjudication or arbitration. If it shall be determined in such judicialadjudication or arbitration that Indemnitee is entitled to receive part but not all of theindemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connectionwith such judicial adjudication or arbitration shall be paid on a reasonable and proportionatebasis.(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to becharged for judgments under Delaware law for amounts which the Company pays or is obligated to payfor the period commencing with the date on which the Company was requested to advance expenses inaccordance with Section 8 of this Agreement or to make the determination of entitlement toindemnification under Section 12(a) above and ending on the date such payment is made to Indemniteeby the Company.Section 13. Defense of the Underlying Proceeding.(a) Indemnitee shall notify the Company promptly in writing upon being served with anysummons, citation, subpoena, complaint, indictment, request or other document relating to anyProceeding which may result in the right to indemnification or the advance of Expenses hereunderand shall include with such notice a description of the nature of the Proceeding and a summary ofthe facts underlying the Proceeding. The failure to give any such notice shall not disqualifyIndemnitee from the right, or otherwise affect in any manner any right of Indemnitee, toindemnification or the advance of Expenses under this Agreement unless the Company’s ability todefend in such Proceeding or to obtain proceeds under any insurance policy is materially andadversely prejudiced thereby, and then only to the extent the Company is thereby actually soprejudiced.
 
-7-

 
(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c)below, the Company shall have the right to defend Indemnitee in any Proceeding which may give riseto indemnification hereunder; provided, however, that the Company shall notify Indemnitee of anysuch decision to defend within 15 calendar days following receipt of notice of any such Proceedingunder Section 13(a) above. The Company shall not, without the prior written consent of Indemnitee,which shall not be unreasonably withheld or delayed, consent to the entry of any judgment againstIndemnitee or enter into any settlement or compromise which (i) includes an admission of fault ofIndemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemniteefrom all liability in respect of such Proceeding, which release shall be in form and substancereasonably satisfactory to Indemnitee, or (iii) would impose any Expense, judgment, fine, penaltyor limitation on Indemnitee. This Section 13(b) shall not apply to a Proceeding brought byIndemnitee under Section 12 of this Agreement.(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to whichIndemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonablyconcludes, based upon an opinion of counsel approved by the Company, which approval shall not beunreasonably withheld or delayed, that he may have separate defenses or counterclaims to assertwith respect to any issue which may not be consistent with other defendants in such Proceeding,(ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company,which approval shall not be unreasonably withheld or delayed, that an actual or apparent conflictof interest or potential conflict of interest exists between Indemnitee and the Company, or(iii) if the Company fails to assume the defense of such Proceeding in a timely manner, Indemniteeshall be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject tothe prior approval of the Company, which shall not be unreasonably withheld or delayed, at theexpense of the Company. In addition, if the Company fails to comply with any of its obligationsunder this Agreement or in the event that the Company or any other person takes any action todeclare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recoverfrom Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall havethe right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company,which shall not be unreasonably withheld or delayed, at the expense of the Company (subject toSection 12(d) of this Agreement), to represent Indemnitee in connection with any such matter.Section 14. Non-Exclusivity; Survival of Rights; Subrogation.(a) The rights of indemnification and advance of Expenses as provided by this Agreement shallnot be deemed exclusive of any other rights to which Indemnitee may at any time be entitled underapplicable law, the Certificate of Incorporation or Bylaws of the Company, any agreement or aresolution of the Board of Directors or of the stockholders entitled to vote generally in theelection of directors, or otherwise. Unless consented to in writing by Indemnitee, no amendment,alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any rightof Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee inhis Corporate Status prior to such amendment, alteration or repeal, regardless of whether a claimwith respect to such action or inaction is raised prior or subsequent to such amendment, alterationor repeal. No right or remedy herein conferred is intended to be exclusive of any other right orremedy, and every other right or remedy shall becumulative and in addition to every other right or remedy given hereunder or now or hereafterexisting at law or in equity or otherwise. The assertion of any right or remedy hereunder, orotherwise, shall not prohibit the concurrent assertion or employment of any other right or remedy.
 
-8-

 
(b) In the event of any payment under this Agreement, the Company shall be subrogated to theextent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papersrequired and take all action necessary to secure such rights, including execution of such documentsas are necessary to enable the Company to bring suit to enforce such rights.Section 15. Coordination of Payments. The Company shall not be liable under thisAgreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable asExpenses hereunder if and to the extent that Indemnitee has otherwise actually received suchpayment under any insurance policy, contract, agreement or otherwise.Section 16. Exception to Right of Indemnification or Advance of Expenses.Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled toindemnification or advance of Expenses hereunder if the Proceeding was brought by Indemniteeunless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and thenonly to the extent in accordance with and as authorized by Section 12 of this Agreement, or(ii) the Company’s Certificate of Incorporation or Bylaws, a resolution of the Board of Directorsor of the stockholders entitled to vote generally in the election of directors or an agreementapproved by the Board of Directors to which the Company is a party expressly provide otherwise.Section 17. Insurance. The Company will use its reasonable best efforts to acquiredirectors and officers liability insurance, on terms and conditions deemed appropriate by the Boardof Directors, with the advice of counsel, covering Indemnitee or any claim made against Indemniteeby reason of his Corporate Status and covering the Company for any indemnification or advance ofExpenses made by the Company to Indemnitee for any claims made against Indemnitee by reason of hisCorporate Status. Without in any way limiting any other obligation under this Agreement, theCompany shall indemnify Indemnitee for any payment by Indemnitee arising out of the amount of anydeductible or retention and the amount of any excess of the aggregate of all judgments, penalties,fines, settlements and Expenses incurred by Indemnitee in connection with a Proceeding over thecoverage of any insurance referred to in the previous sentence. The purchase, establishment andmaintenance of any such insurance shall not in any way limit or affect the rights or obligations ofthe Company or Indemnitee under this Agreement except as expressly provided herein, and theexecution and delivery of this Agreement by the Company and the Indemnitee shall not in any waylimit or affect the rights or obligations of the Company under any such insurance policies. If, atthe time the Company receives notice from any source of a Proceeding to which Indemnitee is a partyor a participant (as a witness or otherwise) the Company has director and officer liabilityinsurance in effect, the Company shall give prompt notice of such Proceeding for itself and onbehalf of the Indemnitee to the insurers in accordance with the procedures set forth in therespective policies.
 
-9-

 
Section 18. Duration of Agreement; Binding Effect.(a) This Agreement shall continue until and terminate on the later of (i) the date thatIndemnitee shall have ceased to serve as a director, officer, employee or agent of the Company oras a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent ofany other foreign or domestic corporation, real estate investment trust, partnership, limitedliability company, joint venture, trust, employee benefit plan or other enterprise that such personis or was serving in such capacity at the request of the Company and (ii) the date that Indemniteeis no longer subject to any actual or possible Proceeding (including any rights of appeal theretoand any Proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement).(b) The indemnification and advance of Expenses provided by, or granted pursuant to, thisAgreement shall be binding upon and be enforceable by the parties hereto and their respectivesuccessors and assigns (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),shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent ofthe Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employeeor agent of any other foreign or domestic corporation, partnership, limited liability company,joint venture, trust, employee benefit plan or other enterprise that such person is or was servingin such capacity at the request of the Company, and shall inure to the benefit of Indemnitee andhis spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.(c) The Company shall require and cause any successor (whether direct or indirect by purchase,merger, consolidation or otherwise) to all or substantially all of the business and/or assets ofthe Company, by written agreement in form and substance satisfactory to Indemnitee, expressly toassume and agree to perform this Agreement in the same manner and to the same extent that theCompany would be required to perform if no such succession had taken place.(d) The Company and Indemnitee agree herein that a monetary remedy for breach of thisAgreement, at some later date, may be inadequate, impracticable and difficult of proof, and furtheragree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties heretoagree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specificperformance hereof, without any necessity of showing actual damage or irreparable harm and that byseeking injunctive relief and/or specific performance, Indemnitee shall not be precluded fromseeking or obtaining any other relief to which he may be entitled. Indemnitee shall further beentitled to such specific performance and injunctive relief, including temporary restrainingorders, preliminary injunctions and permanent injunctions, without the necessity of posting bondsor other undertakings in connection therewith. The Company acknowledges that, in the absence of awaiver, a bond or undertaking may be required of Indemnitee by a court, and the Company herebywaives any such requirement of such a bond or undertaking.
 
-10-

 
Section 19. Severability. If any provision or provisions of this Agreement shall beheld to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legalityand enforceability of the remaining provisions of this Agreement (including, withoutlimitation, each portion of any Section, paragraph or sentence of this Agreement containing anysuch provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal orunenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable tothe fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed tothe extent necessary to conform to applicable law and to give the maximum effect to the intent ofthe parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement(including, without limitation, each portion of any Section, paragraph or sentence of thisAgreement containing any such provision held to be invalid, illegal or unenforceable, that is notitself invalid, illegal or unenforceable) shall be construed so as to give effect to the intentmanifested thereby.Section 20. 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. One such counterpart signed by the partyagainst whom enforceability is sought shall be sufficient to evidence the existence of thisAgreement.Section 21. Headings. The headings of the paragraphs of this Agreement are insertedfor convenience only and shall not be deemed to constitute part of this Agreement or to affect theconstruction thereof.Section 22. Modification and Waiver. No supplement, modification or amendment of thisAgreement shall be binding unless executed in writing by both of the parties hereto. No waiver ofany of the provisions of this Agreement shall be deemed or shall constitute a waiver of any otherprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.Section 23. Notices. All notices, requests, demands and other communicationshereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by handand receipted for by the party to whom said notice or other communication shall have been directedor (ii) mailed by certified or registered mail with postage prepaid, on the third business dayafter the date on which it is so mailed:(a) If to Indemnitee, to the address set forth on the signature page hereto.(b) If to the Company, to:   Jos. A. Bank Clothiers, Inc.Attn: Charles D. Frazer, Esquire  Senior Vice President and General Counsel500 Hanover PikeHampstead, Maryland 21074-2095United States of Americaor to such other address as may have been furnished in writing to Indemnitee by the Company or tothe Company by Indemnitee, as the case may be.
 
-11-

 
Section 24. Governing Law. This Agreement shall be governed by, and construed andenforced in accordance with, the laws of the State of Delaware, without regard to its conflicts oflaws rules.Section 25. Miscellaneous. Use of the masculine pronoun shall be deemed to includeusage of the feminine pronoun where appropriate.[SIGNATURE PAGE FOLLOWS]
 
-12-

 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and yearfirst above written.      COMPANY: