ACT), (B) WERE NOT
IN GOOD FAITH OR INVOLVED A KNOWING VIOLATION OF LAW, OR (C) RESULTED IN RECEIPT
BY THE INDEMNITEE OF AN IMPROPER PERSONAL BENEFIT.
10.
CONSTRUCTION OF CERTAIN PHRASES.
FOR PURPOSES OF THIS AGREEMENT,
THE FOLLOWING TERMS AND REFERENCES SHALL HAVE THE FOLLOWING MEANINGS:
(A)
REFERENCES TO THE "COMPANY" SHALL INCLUDE, IN ADDITION TO THE
RESULTING CORPORATION IN ANY CONSOLIDATION, MERGER OR SIMILAR BUSINESS
COMBINATION, ANY CONSTITUENT CORPORATION (INCLUDING ANY CONSTITUENT OF A
CONSTITUENT) ABSORBED IN A CONSOLIDATION OR MERGER OR SIMILAR BUSINESS
COMBINATION WHICH, IF ITS SEPARATE EXISTENCE HAD CONTINUED, WOULD HAVE HAD POWER
AND AUTHORITY TO INDEMNIFY ITS DIRECTORS, OFFICERS, AND EMPLOYEES OR AGENTS, SO
THAT IF INDEMNITEE IS OR WAS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF SUCH
CONSTITUENT CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF SUCH CONSTITUENT
CORPORATION AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF ANOTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE, INDEMNITEE SHALL STAND IN
THE SAME POSITION UNDER THE PROVISIONS OF THIS AGREEMENT WITH RESPECT TO THE
RESULTING OR SURVIVING CORPORATION AS INDEMNITEE WOULD HAVE WITH RESPECT TO SUCH
CONSTITUENT CORPORATION IF ITS SEPARATE EXISTENCE HAD CONTINUED.
(B)
REFERENCES TO "OTHER ENTERPRISES" SHALL INCLUDE EMPLOYEE BENEFIT
PLANS;
(C)
REFERENCES TO "FINES" SHALL INCLUDE ANY EXCISE TAXES ASSESSED ON
INDEMNITEE WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN;
(D)
REFERENCES TO "SERVING AT THE REQUEST OF THE COMPANY" SHALL
INCLUDE ANY SERVICE AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE COMPANY
WHICH IMPOSES DUTIES ON, OR INVOLVES SERVICES BY, SUCH DIRECTOR, OFFICER,
EMPLOYEE OR AGENT WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN, ITS PARTICIPANTS, OR
BENEFICIARIES; AND
6
(E)
IF INDEMNITEE ACTED IN GOOD FAITH AND IN A MANNER INDEMNITEE
REASONABLY BELIEVED TO BE IN THE INTEREST OF THE PARTICIPANTS AND BENEFICIARIES
OF AN EMPLOYEE BENEFIT PLAN, INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN A
MANNER "NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY" AS REFERRED TO IN THIS
AGREEMENT.
11.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL.
12.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON THE
COMPANY AND ITS SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF
INDEMNITEE AND INDEMNITEE'S ESTATE, HEIRS, LEGAL REPRESENTATIVES AND ASSIGNS.
THE COMPANY SHALL REQUIRE AND CAUSE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT,
AND WHETHER BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO AGREE IN WRITING
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.
13.
ATTORNEYS' FEES.
IN THE EVENT THAT ANY ACTION IS INSTITUTED BY
INDEMNITEE UNDER THIS AGREEMENT TO ENFORCE OR INTERPRET ANY OF THE TERMS HEREOF,
INDEMNITEE SHALL BE ENTITLED TO BE PAID ALL COSTS AND EXPENSES, INCLUDING
REASONABLE ATTORNEYS' FEES, INCURRED BY INDEMNITEE WITH RESPECT TO SUCH ACTION,
UNLESS AS A PART OF SUCH ACTION, THE COURT OF COMPETENT JURISDICTION DETERMINES
THAT EACH OF THE