SUBSIDIARIES, OR BY REASON OF ANY ACTION TAKEN BY HIM OR OF ANY INACTION ON
HIS PART WHILE ACTING AS DIRECTOR OR OFFICER OF THE COMPANY AND/OR ITS
SUBSIDIARIES, OR BY REASON OF THE FACT THAT HE IS OR WAS SERVING AT THE REQUEST
OF THE COMPANY AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF ANY OTHER FOREIGN OR
DOMESTIC CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE, IN
EACH CASE WHETHER OR NOT SERVING IN SUCH CAPACITY AT THE TIME ANY LIABILITY OR
EXPENSE IS INCURRED FOR WHICH INDEMNIFICATION, REIMBURSEMENT OR ADVANCEMENT OF
EXPENSES CAN BE PROVIDED UNDER THIS AGREEMENT.
(E)
"PROCEEDING" SHALL INCLUDE ANY THREATENED, PENDING OR COMPLETED
ACTION, SUIT, ARBITRATION, ALTERNATE DISPUTE RESOLUTION MECHANISM,
INVESTIGATION, INQUIRY, ADMINISTRATIVE OR LEGISLATIVE HEARING OR ANY OTHER
ACTUAL, THREATENED OR COMPLETED PROCEEDING, INCLUDING ANY AND ALL APPEALS,
WHETHER OF A CIVIL, CRIMINAL, ADMINISTRATIVE, INVESTIGATIVE OR OTHER NATURE, AND
IN EACH CASE WHETHER OR NOT COMMENCED PRIOR TO THE DATE OF THIS AGREEMENT, THAT
RELATES TO AN INDEMNIFIABLE EVENT.
9
12.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS (INCLUDING BY FACSIMILE TRANSMISSION), EACH OF WHICH SHALL
CONSTITUTE AN ORIGINAL.
13.
SUCCESSORS AND ASSIGNS.
(A)
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.
(B)
IF INDEMNITEE IS DECEASED AND IS ENTITLED TO INDEMNIFICATION UNDER
ANY PROVISION OF THIS AGREEMENT, THE COMPANY SHALL INDEMNIFY INDEMNITEE'S ESTATE
AND HIS OR HER SPOUSE, HEIRS, ADMINISTRATORS AND EXECUTORS AGAINST AND SHALL
ASSUME ALL OF THE EXPENSES, JUDGMENTS, PENALTIES AND FINES ACTUALLY AND
REASONABLY INCURRED BY OR FOR INDEMNITEE OR HIS OR HER ESTATE, IN CONNECTION
WITH THE INVESTIGATION, DEFENSE, SETTLEMENT OR APPEAL OF ANY SUCH PROCEEDING;
PROVIDED, HOWEVER, THAT WHEN REQUESTED IN WRITING BY THE SPOUSE OF INDEMNITEE
AND/OR THE HEIRS, EXECUTORS OR ADMINISTRATORS OF INDEMNITEE'S ESTATE, THE
COMPANY SHALL PROVIDE APPROPRIATE EVIDENCE OF THE AGREEMENT SET FORTH HEREIN TO
INDEMNIFY INDEMNITEE AGAINST, AND TO ITSELF ASSUME, SUCH COSTS, LIABILITIES AND
EXPENSES.
14.
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 EXPENSES, INCLUDING REASONABLE
ATTORNEYS' FEES, INCURRED BY INDEMNITEE WITH RESPECT TO SUCH ACTION, UNLESS AS A
PART OF SUCH ACTION, A COURT OF COMPETENT JURISDICTION DETERMINES THAT EACH OF
THE MATERIAL ASSERTIONS MADE BY INDEMNITEE AS A BASIS FOR SUCH ACTION WERE NOT
MADE IN GOOD FAITH OR WERE FRIVOLOUS.
IN THE EVENT OF AN ACTION INSTITUTED BY
OR IN THE NAME OF THE COMPANY UNDER THIS AGREEMENT OR TO ENFORCE OR INTERPRET
ANY OF THE TERMS OF THIS AGREEMENT, INDEMNITEE SHALL BE ENTITLED TO BE PAID ALL
EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED BY INDEMNITEE IN
DEFENSE OF SUCH ACTION (INCLUDING WITH RESPECT TO INDEMNITEE'S COUNTERCLAIMS AND
CROSS-CLAIMS MADE IN SUCH ACTION), UNLESS AS A PART OF SUCH ACTION A COURT OF
COMPETENT JURISDICTION DETERMINES