EXECUTORS, AND PERSONAL AND LEGAL REPRESENTATIVES.
11.
SECURITY.
TO THE EXTENT REQUESTED BY
INDEMNITEE AND APPROVED BY THE BOARD, THE COMPANY MAY AT ANY TIME, AND FROM TIME
TO TIME, PROVIDE SECURITY TO INDEMNITEE FOR THE COMPANY'S OBLIGATIONS UNDER THIS
AGREEMENT THROUGH AN IRREVOCABLE BANK LINE OF CREDIT, FUNDED TRUST OR OTHER
COLLATERAL.
ANY SUCH SECURITY, ONCE PROVIDED TO INDEMNITEE, MAY NOT BE REVOKED
OR RELEASED WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNITEE.
12.
ENFORCEMENT.
(A)
THE COMPANY EXPRESSLY CONFIRMS AND AGREES
THAT IT HAS ENTERED INTO THIS AGREEMENT AND ASSUMES THE OBLIGATIONS IMPOSED ON
IT BY THIS AGREEMENT IN ORDER TO INDUCE INDEMNITEE TO SERVE AS AN OFFICER OR
DIRECTOR OF THE COMPANY, AND THE COMPANY ACKNOWLEDGES THAT INDEMNITEE IS RELYING
UPON THIS AGREEMENT IN SERVING AS AN OFFICER OR DIRECTOR OF THE COMPANY.
(B)
SUBJECT TO SECTION 8(A) HEREOF, THIS
AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL,
AND CONTEMPORANEOUS ORAL, AGREEMENTS, NEGOTIATIONS, AND UNDERSTANDINGS, EXPRESS
OR IMPLIED, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
THIS
SECTION 12(B) WILL NOT BE CONSTRUED TO LIMIT ANY OTHER RIGHTS INDEMNITEE MAY
HAVE UNDER THE CERTIFICATE, THE BYLAWS, APPLICABLE LAW OR OTHERWISE.
13.
PERIOD OF LIMITATIONS.
NO LEGAL ACTION MAY
BE BROUGHT AND NO CAUSE OF ACTION MAY BE ASSERTED BY OR IN THE RIGHT OF THE
COMPANY AGAINST INDEMNITEE, INDEMNITEE'S ESTATE, SPOUSE, HEIRS, EXECUTORS, OR
PERSONAL OR LEGAL REPRESENTATIVES AFTER THE EXPIRATION OF TWO YEARS FROM THE
DATE OF ACCRUAL OF SUCH CAUSE OF ACTION, AND ANY CLAIM OR CAUSE OF ACTION OF THE
COMPANY WILL BE EXTINGUISHED AND DEEMED RELEASED, UNLESS ASSERTED BY THE TIMELY
FILING OF A LEGAL ACTION WITHIN SUCH TWO YEAR PERIOD; PROVIDED, HOWEVER, THAT IF
ANY SHORTER PERIOD OF LIMITATIONS IS OTHERWISE APPLICABLE TO ANY SUCH CAUSE OF
ACTION, SUCH SHORTER PERIOD WILL GOVERN.
14.
DEFINITIONS.
FOR PURPOSES OF THIS
AGREEMENT:
(A)
"CORPORATE STATUS" DESCRIBES THE STATUS OF
A PERSON WHO IS OR WAS A DIRECTOR, OFFICER, MANAGER, PARTNER, TRUSTEE, EMPLOYEE,
AGENT, OR FIDUCIARY OF THE ENTERPRISE THAT SUCH PERSON IS OR WAS SERVING AT THE
EXPRESS REQUEST OF THE COMPANY AND INCLUDES, WITHOUT LIMITATION, THE STATUS OF
SUCH PERSON AS AN ADVISOR TO THE ENTERPRISE PRIOR TO THE COMMENCEMENT OF SERVICE
IN ANY OTHER CORPORATE STATUS.
(B)
"CHANGE IN CONTROL" WILL BE DEEMED TO OCCUR
UPON THE EARLIEST TO OCCUR AFTER THE DATE OF THIS AGREEMENT OF ANY OF THE
FOLLOWING EVENTS:
12
(I)
ANY ACQUIRING PERSON IS OR BECOMES THE
BENEFICIAL OWNER, DIRECTLY OR INDIRECTLY, OF SECURITIES OF THE COMPANY
REPRESENTING 20% OR MORE OF THE COMBINED VOTING POWER OF THE COMPANY'S THEN
OUTSTANDING SECURITIES;
(II)
DURING ANY PERIOD OF TWO CONSECUTIVE YEARS
(NOT INCLUDING ANY PERIOD PRIOR TO THE EXECUTION OF THIS AGREEMENT), INDIVIDUALS
WHO AT THE BEGINNING OF SUCH PERIOD CONSTITUTE THE BOARD, AND ANY NEW DIRECTOR
(OTHER THAN A DIRECTOR DESIGNATED BY A PERSON WHO HAS ENTERED INTO AN AGREEMENT