EMPLOYEE OR AGENT OF THE COMPANY OR OF ANY OTHER
CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR JOINT VENTURE, TRUST,
EMPLOYEE BENEFIT PLAN OR OTHER ENTERPRISE WHICH SUCH PERSON IS OR WAS SERVING AT
THE REQUEST OF THE COMPANY.
(D)
"DISINTERESTED DIRECTOR" MEANS A DIRECTOR OF THE COMPANY WHO IS
NOT AND WAS NOT A PARTY TO THE PROCEEDING IN RESPECT OF WHICH INDEMNIFICATION IS
SOUGHT BY INDEMNITEE.
(E)
"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.
(F)
"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) FOR PURPOSES OF
SECTION 14(D) ONLY, 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.
(G)
"INDEPENDENT COUNSEL" MEANS A LAW FIRM, OR A MEMBER OF A LAW FIRM,
THAT IS EXPERIENCED IN MATTERS OF CORPORATION LAW AND NEITHER PRESENTLY IS, NOR
IN THE PAST FIVE YEARS HAS BEEN, RETAINED TO REPRESENT:
(I) THE COMPANY OR
INDEMNITEE IN ANY MATTER MATERIAL TO EITHER SUCH PARTY (OTHER THAN WITH RESPECT
TO MATTERS CONCERNING THE INDEMNITEE UNDER THIS AGREEMENT, OR OF OTHER
INDEMNITEES UNDER SIMILAR INDEMNIFICATION AGREEMENTS), OR (II) ANY OTHER PARTY
TO THE PROCEEDING GIVING RISE TO A CLAIM FOR INDEMNIFICATION HEREUNDER.
NOTWITHSTANDING THE FOREGOING, THE TERM "INDEPENDENT COUNSEL" SHALL NOT INCLUDE
ANY PERSON WHO, UNDER THE APPLICABLE STANDARDS
4
OF PROFESSIONAL CONDUCT THEN PREVAILING, WOULD HAVE A CONFLICT OF INTEREST IN
REPRESENTING EITHER THE COMPANY OR INDEMNITEE IN AN ACTION TO DETERMINE
INDEMNITEE'S RIGHTS UNDER THIS AGREEMENT.
THE COMPANY AGREES TO PAY THE
REASONABLE FEES AND EXPENSES OF THE INDEPENDENT COUNSEL REFERRED TO ABOVE