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 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 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 OF THE INDEPENDENT COUNSEL REFERRED TO ABOVE
AND TO FULLY INDEMNIFY SUCH COUNSEL AGAINST ANY AND ALL EXPENSES, CLAIMS,
LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS
ENGAGEMENT PURSUANT HERETO.
(F)
"PROCEEDING" INCLUDES ANY THREATENED, PENDING OR COMPLETED
ACTION, SUIT, ARBITRATION, ALTERNATE DISPUTE RESOLUTION MECHANISM,
INVESTIGATION, INQUIRY, ADMINISTRATIVE HEARING OR ANY OTHER ACTUAL, THREATENED
OR COMPLETED PROCEEDING, WHETHER BROUGHT BY OR IN THE RIGHT OF THE COMPANY OR
OTHERWISE AND WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE, IN WHICH
INDEMNITEE WAS, IS OR WILL BE INVOLVED AS A PARTY OR OTHERWISE, BY REASON OF THE
FACT THAT INDEMNITEE IS OR WAS AN OFFICER OR DIRECTOR OF THE COMPANY, BY REASON
OF ANY ACTION TAKEN BY HIM OR OF ANY INACTION ON HIS PART WHILE ACTING AS AN
OFFICER OR DIRECTOR OF THE COMPANY, OR BY REASON OF THE FACT THAT HE IS OR WAS
SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR, OFFICER, EMPLOYEE, AGENT OR
FIDUCIARY OF ANOTHER CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER
ENTERPRISE; IN EACH CASE WHETHER OR NOT HE IS ACTING OR SERVING IN ANY SUCH
CAPACITY AT THE TIME ANY LIABILITY OR EXPENSE IS INCURRED FOR WHICH
INDEMNIFICATION CAN BE PROVIDED UNDER THIS AGREEMENT; INCLUDING ONE PENDING ON
OR BEFORE THE DATE OF THIS AGREEMENT, BUT EXCLUDING ONE INITIATED BY AN
INDEMNITEE PURSUANT TO SECTION 7 OF THIS AGREEMENT TO ENFORCE HIS RIGHTS UNDER
THIS AGREEMENT.
14.
SEVERABILITY. THE INVALIDITY OF UNENFORCEABILITY OF ANY PROVISION
HEREOF SHALL IN NO WAY AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER
PROVISION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS AGREEMENT IS
INTENDED TO CONFER UPON INDEMNITEE INDEMNIFICATION RIGHTS TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAWS. IN THE EVENT ANY PROVISION HEREOF CONFLICTS WITH
ANY
11
APPLICABLE LAW, SUCH PROVISION SHALL BE DEEMED MODIFIED, CONSISTENT WITH THE
AFOREMENTIONED INTENT, TO THE EXTENT NECESSARY TO RESOLVE SUCH CONFLICT.
15.
MODIFICATION AND WAIVER. NO SUPPLEMENT, MODIFICATION, TERMINATION
OR AMENDMENT OF THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY
BOTH OF THE PARTIES HERETO. NO WAIVER OF ANY OF THE PROVISIONS OF THIS AGREEMENT
SHALL BE DEEMED OR SHALL CONSTITUTE A WAIVER OF ANY OTHER PROVISIONS HEREOF
(WHETHER OR NOT SIMILAR) NOR SHALL SUCH WAIVER CONSTITUTE A CONTINUING WAIVER.
16.
NOTICE BY