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 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 UNDER THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE TERM
"INDEPENDENT COUNSEL" WILL 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.
(H)
"PERSON" MEANS ANY INDIVIDUAL, CORPORATION,
PARTNERSHIP, LIMITED LIABILITY COMPANY, TRUST, BENEFIT PLAN, GOVERNMENTAL OR
QUASI-GOVERNMENTAL AGENCY, AND ANY OTHER ENTITY, PUBLIC OR PRIVATE.
(I)
"PROCEEDING" INCLUDES ANY THREATENED,
PENDING, OR COMPLETED ACTION, CLAIM, 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 ACTING IN HIS OR HER
CORPORATE STATUS, BY REASON OF ANY ACTION TAKEN BY HIM OR HER OR OF ANY INACTION
ON HIS OR HER PART WHILE ACTING IN HIS OR HER CORPORATE STATUS; IN EACH CASE
WHETHER OR NOT HE OR SHE 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 ANY PROCEEDING PENDING ON OR BEFORE THE DATE OF
THIS AGREEMENT, BUT EXCLUDING ANY PROCEEDING INITIATED BY AN INDEMNITEE PURSUANT
TO SECTION 7 OF THIS AGREEMENT TO ENFORCE HIS OR HER RIGHTS UNDER THIS
AGREEMENT.
15.
SEVERABILITY.
THE INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT WILL IN NO WAY AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION.
WITHOUT
14
LIMITING THE GENERALITY OF THE FOREGOING, THIS AGREEMENT IS INTENDED TO CONFER
UPON INDEMNITEE INDEMNIFICATION RIGHTS TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW.
IN THE EVENT ANY PROVISION OF THIS AGREEMENT CONFLICTS WITH ANY
APPLICABLE LAW, SUCH PROVISION WILL BE DEEMED MODIFIED, CONSISTENT WITH THE
AFOREMENTIONED INTENT, TO THE EXTENT NECESSARY TO RESOLVE SUCH CONFLICT.
16.
MODIFICATION AND WAIVER.
NO SUPPLEMENT,
MODIFICATION, TERMINATION, OR AMENDMENT OF THIS AGREEMENT WILL BE BINDING UNLESS
EXECUTED IN WRITING BY EACH OF THE PARTIES.
NO WAIVER OF ANY OF THE PROVISIONS
OF THIS AGREEMENT WILL BE DEEMED OR WILL CONSTITUTE A WAIVER OF ANY OTHER
PROVISIONS OF THIS AGREEMENT (WHETHER OR NOT SIMILAR) NOR WILL SUCH WAIVER
CONSTITUTE A CONTINUING WAIVER.
THIS AGREEMENT CANNOT BE MODIFIED OR AMENDED,
OR ANY PROVISION OF THIS AGREEMENT WAIVED, BY COURSE OF CONDUCT.
17.
NOTICE BY INDEMNITEE.
INDEMNITEE AGREES
PROMPTLY TO NOTIFY THE COMPANY IN WRITING UPON