DENY OR TO RECOVER FROM INDEMNITEE THE BENEFITS
INTENDED TO BE PROVIDED TO INDEMNITEE HEREUNDER, INDEMNITEE SHALL HAVE THE RIGHT
TO RETAIN COUNSEL OF INDEMNITEE'S CHOICE, AT THE EXPENSE OF THE COMPANY, TO
REPRESENT INDEMNITEE IN CONNECTION WITH ANY SUCH MATTER.
12.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO INDEMNITEE AS FOLLOWS:
(A)
AUTHORITY.
THE COMPANY HAS ALL NECESSARY POWER AND AUTHORITY TO
ENTER INTO, AND BE BOUND BY THE TERMS OF, THIS AGREEMENT, AND THE EXECUTION,
DELIVERY AND PERFORMANCE OF THE UNDERTAKINGS CONTEMPLATED BY THIS AGREEMENT HAVE
BEEN DULY AUTHORIZED BY THE COMPANY.
(B)
ENFORCEABILITY.
THIS AGREEMENT, WHEN EXECUTED AND DELIVERED BY
THE COMPANY IN ACCORDANCE WITH THE PROVISIONS HEREOF, SHALL BE A LEGAL, VALID
AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE AGAINST THE COMPANY IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION OR SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
13.
CONTRACT RIGHTS NOT EXCLUSIVE.
THE RIGHTS
TO PAYMENT OF INDEMNIFIABLE AMOUNTS AND ADVANCEMENT OF INDEMNIFIABLE EXPENSES
PROVIDED BY THIS AGREEMENT SHALL BE IN ADDITION TO, BUT NOT EXCLUSIVE OF, ANY
OTHER RIGHTS WHICH INDEMNITEE MAY HAVE AT ANY TIME UNDER APPLICABLE LAW, THE
COMPANY'S CERTIFICATE OR BYLAWS OR ANY OTHER AGREEMENT, VOTE OF STOCKHOLDERS OR
DIRECTORS (OR A COMMITTEE OF DIRECTORS), OR OTHERWISE (COLLECTIVELY, "OTHER
INDEMNITY PROVISIONS"), BOTH AS TO ACTION IN INDEMNITEE'S OFFICIAL CAPACITY AND
AS TO ACTION IN ANY OTHER CAPACITY AS A RESULT OF INDEMNITEE'S SERVING AS A
DIRECTOR OF THE COMPANY; PROVIDED, HOWEVER, THAT (I) TO THE EXTENT THAT
INDEMNITEE OTHERWISE WOULD HAVE ANY GREATER RIGHT TO INDEMNIFICATION UNDER ANY
OTHER INDEMNITY PROVISION, INDEMNITEE WILL BE DEEMED TO HAVE SUCH GREATER RIGHT
HEREUNDER AND (II) TO THE EXTENT THAT ANY CHANGE IS MADE TO ANY OTHER INDEMNITY
PROVISION WHICH PERMITS ANY GREATER RIGHT TO INDEMNIFICATION THAN THAT PROVIDED
UNDER THIS AGREEMENT AS OF THE DATE HEREOF, INDEMNITEE WILL BE DEEMED TO HAVE
SUCH GREATER RIGHT HEREUNDER.
THE COMPANY SHALL NOT ADOPT ANY AMENDMENT TO
EITHER THE CERTIFICATE OR THE BY-LAWS THE EFFECT OF WHICH WOULD BE TO DENY,
DIMINISH OR ENCUMBER INDEMNITEE'S RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT
OR ANY OTHER INDEMNITY PROVISION.
14.
SUCCESSORS.
THIS AGREEMENT SHALL BE
(A) BINDING UPON ALL SUCCESSORS AND ASSIGNS OF THE COMPANY (INCLUDING, WITHOUT
LIMITATION, ANY TRANSFEREE OF ALL OR A SUBSTANTIAL PORTION OF THE BUSINESS,
STOCK AND/OR ASSETS OF THE COMPANY AND ANY DIRECT OR INDIRECT SUCCESSOR BY
MERGER OR CONSOLIDATION OR OTHERWISE BY OPERATION OF LAW) AND (B) BINDING ON AND
SHALL INURE TO THE BENEFIT OF THE HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS AND
ADMINISTRATORS OF INDEMNITEE.
THIS AGREEMENT SHALL CONTINUE FOR THE BENEFIT OF
INDEMNITEE AND SUCH HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS AND
ADMINISTRATORS AFTER INDEMNITEE HAS CEASED TO HAVE CORPORATE STATUS.
15.
SUBROGATION.
IN THE EVENT OF ANY PAYMENT OF
INDEMNIFIABLE AMOUNTS UNDER THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO
THE EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS OF
7
CONTRIBUTION OR