THE LAST THREE YEARS (OTHER THAN WITH RESPECT TO MATTERS
CONCERNING THE RIGHT OF ANY INDEMNITEE UNDER THIS AGREEMENT, OR OF OTHER
INDEMNITEES UNDER SIMILAR INDEMNITY AGREEMENTS) AND SHALL NOT HAVE OTHERWISE
PERFORMED SERVICES FOR 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 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.
(E)
FOR PURPOSES OF THIS AGREEMENT, "VOTING
SECURITIES" SHALL MEAN ANY SECURITIES OF THE COMPANY THAT VOTE GENERALLY IN THE
ELECTION OF DIRECTORS.
10
15.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED
IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL.
16.
BINDING EFFECT; SUCCESSORS AND ASSIGNS.
THIS
AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE
BY THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, INCLUDING ANY
DIRECT OR INDIRECT SUCCESSOR BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY, SPOUSES,
HEIRS, AND PERSONAL AND LEGAL REPRESENTATIVES. THE COMPANY SHALL REQUIRE AND
CAUSE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL, SUBSTANTIALLY ALL, OR A SUBSTANTIAL PART, OF
THE BUSINESS AND/OR ASSETS OF THE COMPANY, EXPRESSLY TO ASSUME AND AGREE TO
PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE
COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD TAKEN PLACE. THIS
AGREEMENT SHALL CONTINUE IN EFFECT WITH RESPECT TO PROCEEDINGS RELATING TO
INDEMNIFICATION EVENTS REGARDLESS OF WHETHER ANY INDEMNITEE CONTINUES TO SERVE
AS A DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONTROLLING PERSON, OR FIDUCIARY OF THE
COMPANY OR OF ANY OTHER ENTERPRISE, INCLUDING SUBSIDIARIES OF THE COMPANY, AT
THE COMPANY'S REQUEST.
17.
ATTORNEYS' FEES.
IN THE EVENT THAT ANY ACTION
IS INSTITUTED BY INDEMNITEE UNDER THIS AGREEMENT OR UNDER ANY LIABILITY
INSURANCE POLICIES MAINTAINED BY THE COMPANY TO ENFORCE OR INTERPRET ANY OF THE
TERMS HEREOF OR THEREOF, INDEMNITEE SHALL BE ENTITLED TO BE PAID ALL EXPENSES
INCURRED BY INDEMNITEE WITH RESPECT TO SUCH ACTION IF INDEMNITEE IS ULTIMATELY
SUCCESSFUL IN SUCH ACTION, AND SHALL BE ENTITLED TO THE ADVANCEMENT OF EXPENSES
WITH RESPECT TO SUCH ACTION, UNLESS, AS A PART OF SUCH ACTION, A COURT OF
COMPETENT JURISDICTION OVER SUCH ACTION DETERMINES THAT THE MATERIAL ASSERTIONS
MADE BY INDEMNITEE AS A BASIS FOR SUCH ACTION WERE NOT MADE IN GOOD FAITH OR
WERE FRIVOLOUS. IN THE EVENT OF AN ACTION INSTITUTED BY OR IN THE NAME OF THE
COMPANY UNDER THIS AGREEMENT TO ENFORCE OR INTERPRET ANY OF THE TERMS OF THIS
AGREEMENT, INDEMNITEE SHALL BE ENTITLED TO BE PAID ALL EXPENSES INCURRED BY
INDEMNITEE IN DEFENSE OF SUCH ACTION (INCLUDING COSTS AND EXPENSES INCURRED WITH
RESPECT TO INDEMNITEE COUNTERCLAIMS AND CROSS-CLAIMS MADE IN SUCH ACTION), AND
SHALL BE ENTITLED TO THE ADVANCEMENT OF