JUDICIAL DECISION) PERMITS GREATER
INDEMNIFICATION BY AGREEMENT THAN WOULD BE AFFORDED CURRENTLY UNDER THE
COMPANY'S CERTIFICATE, BYLAWS, APPLICABLE LAW OR THIS AGREEMENT, IT IS THE
INTENT OF THE PARTIES THAT THE INDEMNITEE ENJOY BY THIS AGREEMENT THE GREATER
BENEFITS SO AFFORDED BY SUCH CHANGE. IN THE EVENT OF ANY CHANGE IN APPLICABLE
LAW, STATUTE OR RULE WHICH NARROWS THE RIGHT OF A DELAWARE CORPORATION TO
INDEMNIFY A MEMBER OF ITS BOARD OF DIRECTORS OR AN OFFICER, EMPLOYEE, AGENT OR
FIDUCIARY, SUCH CHANGE, TO THE EXTENT NOT OTHERWISE REQUIRED BY SUCH LAW,
STATUTE OR RULE TO BE
8
APPLIED TO THIS AGREEMENT, SHALL HAVE NO EFFECT ON THIS AGREEMENT OR THE
PARTIES' RIGHTS AND OBLIGATIONS HEREUNDER.
17.
ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT.
IN THE
EVENT THAT THE INDEMNITEE IS SUBJECT TO OR INTERVENES IN ANY ACTION, SUIT OR
PROCEEDING IN WHICH THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT IS AT ISSUE
OR SEEKS AN ADJUDICATION OR AWARD IN ARBITRATION TO ENFORCE THE INDEMNITEE'S
RIGHTS UNDER, OR TO RECOVER DAMAGES FOR BREACH OF, THIS AGREEMENT
THE INDEMNITEE, IF HE/SHE PREVAILS IN WHOLE OR IN PART IN SUCH ACTION, SHALL BE
ENTITLED TO RECOVER FROM THE COMPANY AND SHALL BE INDEMNIFIED BY THE COMPANY
AGAINST ANY ACTUAL EXPENSES FOR ATTORNEYS' FEES AND DISBURSEMENTS REASONABLY
INCURRED BY THE INDEMNITEE.
18.
EFFECTIVE DATE.
THE PROVISIONS OF THIS AGREEMENT SHALL COVER
CLAIMS, ACTIONS, SUITS OR PROCEEDINGS WHETHER NOW PENDING OR HEREAFTER COMMENCED
AND SHALL BE RETROACTIVE TO COVER ACTS OR OMISSIONS OR ALLEGED ACTS OR OMISSIONS
WHICH HERETOFORE HAVE TAKEN PLACE. THE COMPANY SHALL BE LIABLE UNDER THIS
AGREEMENT, PURSUANT TO SECTIONS 3 AND 4 HEREOF, FOR ALL ACTS OF THE INDEMNITEE
WHILE SERVING AS A DIRECTOR AND/OR OFFICER, NOTWITHSTANDING THE TERMINATION OF
THE INDEMNITEE'S SERVICE, IF SUCH ACT WAS PERFORMED OR OMITTED TO BE PERFORMED
DURING THE TERM OF THE INDEMNITEE'S SERVICE TO THE COMPANY.
19.
DURATION OF AGREEMENT.
THIS AGREEMENT SHALL SURVIVE AND CONTINUE
EVEN THOUGH THE INDEMNITEE MAY HAVE TERMINATED HIS/HER SERVICE AS A DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR FIDUCIARY OF THE COMPANY OR AS A DIRECTOR, OFFICER,
EMPLOYEE, AGENT OR FIDUCIARY OF ANY OTHER ENTITY, INCLUDING, BUT NOT LIMITED TO
ANOTHER CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, EMPLOYEE BENEFIT
PLAN, JOINT VENTURE, TRUST OR OTHER ENTERPRISE OR BY REASON OF ANY ACT OR
OMISSION BY THE INDEMNITEE IN ANY SUCH CAPACITY. THIS AGREEMENT SHALL BE BINDING
UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS, INCLUDING, WITHOUT LIMITATION,
ANY CORPORATION OR OTHER ENTITY WHICH MAY HAVE ACQUIRED ALL OR SUBSTANTIALLY ALL
OF THE COMPANY'S ASSETS OR BUSINESS OR INTO WHICH THE COMPANY MAY BE
CONSOLIDATED OR MERGED, AND SHALL INURE TO THE BENEFIT OF THE INDEMNITEE AND
HIS/HER SPOUSE, SUCCESSORS, ASSIGNS, HEIRS, DEVISEES, EXECUTORS, ADMINISTRATORS
OR OTHER LEGAL REPRESENTATIONS. THE COMPANY SHALL REQUIRE ANY SUCCESSOR OR
ASSIGNEE (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR
OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY, BY WRITTEN AGREEMENT IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO