THAT TAKES PLACE
EITHER PRIOR TO OR AFTER THE EXECUTION OF THIS AGREEMENT, RELATED TO THE FACT
THAT INDEMNITEE IS OR WAS A DIRECTOR OF THE COMPANY OR ANY SUBSIDIARY OF THE
COMPANY, OR WHILE A DIRECTOR IS OR WAS SERVING AT THE REQUEST OF THE COMPANY AS
A DIRECTOR, OFFICER, TRUSTEE, MANAGER, EMPLOYEE OR AGENT OF ANOTHER CORPORATION,
PARTNERSHIP, COMPANY, LIMITED LIABILITY COMPANY, JOINT VENTURE, TRUST,
NON-PROFIT ENTITY OR OTHER ENTERPRISE, INCLUDING SERVICE WITH RESPECT TO ANY
EMPLOYEE BENEFIT PLAN (COLLECTIVELY, "OFFICIAL CAPACITY"), WHETHER THE BASIS OF
SUCH PROCEEDING IS ALLEGED ACTION IN AN OFFICIAL CAPACITY, AND WHETHER THE
INDEMNITEE IS A PARTY TO OR A WITNESS OR OTHER PARTICIPANT IN SUCH PROCEEDING.
(G)
INDEPENDENT COUNSEL:
MEANS A LAW FIRM, OR A MEMBER OF A LAW FIRM,
THAT IS EXPERIENCED IN MATTERS OF CORPORATE LAW AND NEITHER PRESENTLY IS, NOR IN
THE PAST THREE YEARS HAS BEEN, RETAINED TO REPRESENT: (I) THE COMPANY OR ANY OF
ITS SUBSIDIARIES OR AFFILIATES, (II) THE INDEMNITEE OR (III) ANY OTHER PARTY TO
THE PROCEEDING GIVING RISE TO A CLAIM FOR INDEMNIFICATION OR EXPENSE ADVANCES
HEREUNDER, IN ANY MATTER (OTHER THAN WITH RESPECT TO MATTERS RELATING TO
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES).
NO LAW FIRM OR LAWYER SHALL
QUALIFY TO SERVE AS INDEPENDENT COUNSEL IF THAT PERSON WOULD, UNDER THE
APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT THEN PREVAILING, HAVE A CONFLICT OF
INTEREST IN REPRESENTING EITHER THE COMPANY OR INDEMNITEE IN AN ACTION TO
DETERMINE INDEMNITEE'S RIGHTS UNDER THIS AGREEMENT.
THE COMPANY SHALL SELECT A
LAW FIRM OR LAWYER TO SERVE AS INDEPENDENT COUNSEL, SUBJECT TO THE CONSENT OF
THE INDEMNITEE, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
(H)
PROCEEDING:
ANY THREATENED, PENDING OR COMPLETED ACTION, SUIT OR
PROCEEDING (INCLUDING ANY ARBITRATION OR OTHER ALTERNATE DISPUTE RESOLUTION
MECHANISM OR AN INQUIRY, INVESTIGATION OR ADMINISTRATIVE HEARING), WHETHER
CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE (INCLUDING ANY APPEAL
THEREFROM), THAT RELATES TO AN INDEMNIFIABLE EVENT.
(I)
REVIEWING PARTY:
REVIEWING PARTY SHALL HAVE THE MEANING ASCRIBED
TO SUCH TERM IN SECTION 3.
2.
AGREEMENT TO INDEMNIFY.
(A)
GENERAL AGREEMENT REGARDING INDEMNIFICATION.
IN THE EVENT
INDEMNITEE WAS, IS, OR BECOMES A PARTY TO, IS THREATENED TO BE MADE A PARTY TO
OR WITNESS OR OTHER PARTICIPANT IN, A PROCEEDING BY REASON OF (OR ARISING IN
PART OUT OF) AN INDEMNIFIABLE EVENT, THE COMPANY SHALL INDEMNIFY INDEMNITEE FROM
AND AGAINST INDEMNIFIABLE COSTS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW (IN ADDITION TO ANY INDEMNIFICATION RIGHTS PROVIDED IN THE CERTIFICATE OR
BYLAWS), AS THE SAME MAY EXIST OR MAY HEREAFTER BE AMENDED OR INTERPRETED (BUT
IN THE CASE OF ANY SUCH AMENDMENT OR INTERPRETATION, ONLY TO THE EXTENT THAT
SUCH AMENDMENT OR INTERPRETATION PERMITS THE COMPANY TO PROVIDE BROADER
INDEMNIFICATION RIGHTS THAN WERE PERMITTED PRIOR THERETO); PROVIDED THAT THE
COMPANY'S COMMITMENT SET FORTH IN THIS SECTION 2(A) TO INDEMNIFY THE
3
INDEMNITEE SHALL BE SUBJECT TO THE LIMITATIONS AND PROCEDURAL REQUIREMENTS SET
FORTH IN THIS AGREEMENT.
(B)
PARTIAL INDEMNIFICATION.
IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO