MEMBER OF A LAW FIRM, THAT IS EXPERIENCED IN MATTERS OF CORPORATE 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 OR (II) ANY OTHER PARTY TO THE PROCEEDING GIVING RISE TO A CLAIM FOR
INDEMNIFICATION HEREUNDER.
NOTWITHSTANDING THE FOREGOING, THE TERM "INDEPENDENT
LEGAL 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.
(G)
"PROCEEDING" INCLUDES ANY ACTION, SUIT,
ARBITRATION, ALTERNATE DISPUTE RESOLUTION MECHANISM, INVESTIGATION,
ADMINISTRATIVE HEARING OR ANY OTHER PROCEEDING WHETHER CIVIL, CRIMINAL,
ADMINISTRATIVE OR INVESTIGATIVE.
(H)
"SERVING AT THE REQUEST OF THE COMPANY"
SHALL INCLUDE ANY SERVICE AT THE REQUEST OR WITH THE EXPRESS OR IMPLIED
AUTHORIZATION OF THE COMPANY, AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE
COMPANY WHICH IMPOSES DUTIES ON, OR INVOLVES SERVICES BY, INDEMNITEE WITH
RESPECT TO AN ENTERPRISE, ITS PARTICIPANTS OR BENEFICIARIES; AND IF INDEMNITEE
ACTED IN GOOD FAITH AND IN A MANNER [HE/SHE] REASONABLY BELIEVED TO BE IN THE
INTEREST OF THE PARTICIPANTS AND BENEFICIARIES OF SUCH ENTERPRISE, [HE/SHE]
SHALL BE DEEMED TO HAVE ACTED IN A MANNER "NOT OPPOSED TO THE BEST INTERESTS OF
THE COMPANY" AS REFERRED TO IN THIS AGREEMENT.
8.
D&O INSURANCE.
THE COMPANY REPRESENTS
THAT IT HAS PURCHASED OR CURRENTLY MAINTAINS AND WILL MAINTAIN (EXCEPT AS
HEREINAFTER PROVIDED) INSURANCE PROTECTING ITS OFFICERS AND DIRECTORS AND
CERTAIN OTHER PERSONS (INCLUDING THE INDEMNITEE) AGAINST CERTAIN LOSSES AND
CERTAIN EXPENSES, ARISING OUT OF ACTUAL OR THREATENED PROCEEDINGS TO WHICH SUCH
PERSONS MAY BE MADE OR THREATENED TO BE MADE PARTIES ("D&O INSURANCE").
ALTHOUGH THERE CAN BE NO ASSURANCE AS TO THE CONTINUATION OR RENEWAL OF THE D&O
INSURANCE OR THAT ANY SUCH D&O INSURANCE WILL PROVIDE COVERAGE FOR LOSSES TO
WHICH THE INDEMNITEE MAY
6
BE EXPOSED, THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS, TAKING INTO
CONSIDERATION AVAILABILITY OF D&O INSURANCE IN THE MARKETPLACE, TO CONTINUE D&O
INSURANCE IN EFFECT AT CURRENT LEVELS FOR THE DURATION OF INDEMNITEE'S SERVICE
AND FOR SIX (6) YEARS THEREAFTER.
9.
RELIANCE BY INDEMNITEE.
THE COMPANY
EXPRESSLY CONFIRMS AND AGREES THAT IT HAS ENTERED INTO THIS AGREEMENT AND
ASSUMED THE OBLIGATIONS IMPOSED ON IT HEREBY IN ORDER TO INDUCE INDEMNITEE TO
SERVE OR CONTINUE TO SERVE AS A DIRECTOR AND/OR AN OFFICER OF THE COMPANY, AND
ACKNOWLEDGES THAT INDEMNITEE IS RELYING UP-ON THIS AGREEMENT IN SERVING OR
CONTINUING TO SERVE IN SUCH CAPACITY.
10.
INDEMNIFICATION FOR NEGLIGENCE.
TO THE
EXTENT PERMITTED BY THEN APPLICABLE LAW AND SUBJECT TO THE PROVISIONS OF THIS
AGREEMENT, THE PARTIES HERETO RECOGNIZE AND ACKNOWLEDGE THAT THE INDEMNITEE MAY
BE INDEMNIFIED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT IN
PROCEEDINGS INVOLVING THE NEGLIGENCE OF THE INDEMNITEE.
11.
ENFORCEMENT.
THE COMPANY HAS ENTERED INTO
THIS AGREEMENT AND ASSUMED THE OBLIGATIONS IMPOSED ON THE COMPANY HEREBY IN
ORDER TO INDUCE