OF
SECTION 10 OF THIS AGREEMENT.
12.
INDEMNIFICATION. AT ALL TIMES DURING AND AFTER THE EMPLOYMENT
TERM, THE COMPANY SHALL INDEMNIFY EXECUTIVE TO THE FULLEST EXTENT PERMITTED BY
THE LAWS OF THE STATE OF DELAWARE FOR ALL ACTIONS OR OMISSIONS TAKEN OR MADE BY
EXECUTIVE (WHETHER BEFORE OR AFTER THE DATE OF THIS AGREEMENT) IN HIS SERVICE TO
THE COMPANY OR ITS AFFILIATED ENTITIES FOR WHICH EXECUTIVE HAS PERFORMED OR DOES
PERFORM SERVICES AT THE REQUEST OF THE COMPANY, INCLUDING, TO THE FULLEST EXTENT
INDEMNIFICATION OF AN OFFICER BY A CORPORATION IS ALLOWED BY DELAWARE LAW, THE
ADVANCEMENT TO EXECUTIVE OF ALL REASONABLE ATTORNEYS' COSTS AND EXPENSES
INCURRED BY EXECUTIVE IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING, WHETHER
CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE, BY REASON OF THE FACT THAT HE
IS OR WAS A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY, WITHIN TWENTY
(20) CALENDAR DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN REQUEST FROM
EXECUTIVE FOR SUCH ADVANCE. EXECUTIVE'S REQUEST FOR ADVANCEMENT OF ATTORNEYS'
COSTS AND EXPENSES
17
PURSUANT TO THE PRECEDING SENTENCE SHALL INCLUDE AN UNDERTAKING BY EXECUTIVE TO
REPAY THE AMOUNT OF SUCH ADVANCE IF IT SHALL ULTIMATELY BE DETERMINED THAT
EXECUTIVE IS NOT ENTITLED TO BE INDEMNIFIED AGAINST SUCH COSTS AND EXPENSES. ANY
DETERMINATION REQUIRED TO BE MADE WITH RESPECT TO WHETHER EXECUTIVE'S CONDUCT
COMPLIES WITH THE STANDARDS SET FORTH UNDER DELAWARE LAW SHALL BE MADE BY
INDEPENDENT COUNSEL SELECTED BY EXECUTIVE (SUCH INDEPENDENT COUNSEL TO BE
REASONABLY ACCEPTABLE TO THE COMPANY).
13.
MISCELLANEOUS.
(A)
GOVERNING LAW. EXCEPT ONLY WITH RESPECT TO EXECUTIVE'S RIGHT TO
INDEMNIFICATION UNDER SECTION 12 (AS TO WHICH DELAWARE LAW APPLIES IN THE FIRST
INSTANCE), THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE
WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO ITS CONFLICT OF LAWS
PROVISIONS OR THE CONFLICT OF LAWS PROVISIONS OF ANY OTHER JURISDICTION WHICH
WOULD CAUSE THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF
CALIFORNIA.
(B)
ENTIRE AGREEMENT/AMENDMENTS. THIS AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE EMPLOYMENT OF EXECUTIVE BY THE
COMPANY, AND, WITHOUT LIMITING THE EFFECT OF THE FOREGOING, SPECIFICALLY
SUPERSEDES THE RETENTION AGREEMENT, THE COMPANY'S SHORT TERM INCENTIVE PLAN AND
THE COMPANY'S EXECUTIVE SEVERANCE PLAN. THERE ARE NO RESTRICTIONS, AGREEMENTS,
PROMISES, WARRANTIES, COVENANTS OR UNDERTAKINGS BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREIN OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN. THIS
AGREEMENT MAY NOT BE ALTERED, MODIFIED OR AMENDED EXCEPT BY WRITTEN INSTRUMENT
SIGNED BY THE PARTIES HERETO. SECTIONS 9, 10, 11 , 12 AND 13 OF THIS AGREEMENT
SHALL SURVIVE THE TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, TO THE
EXTENT SPECIFICALLY STATED THEREIN. NOTWITHSTANDING THE FOREGOING, NOTHING IN
THIS AGREEMENT SHALL AFFECT EXECUTIVE'S ENTITLEMENTS PURSUANT TO THE COMPANY'S
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN.
(C)
JURISDICTION AND CHOICE OF FORUM.
EXECUTIVE AND THE COMPANY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT