AND COSTS INCURRED (INCLUDING
REASONABLE ATTORNEY'S FEES AND DISBURSEMENTS) AS A CONSEQUENCE OF CLAIMS BY
THIRD PARTIES, WHETHER OR NOT DERIVATIVELY ON BEHALF OF THE COMPANY, RESULTING
FROM OR GROWING OUT OF (I) EXECUTIVE'S STATUS AS, OR AS A RESULT OF HIS HAVING
BEEN AN OFFICER OR DIRECTOR OF THE COMPANY OR ANY AFFILIATE OF PARENT, IN EACH
CASE, FROM AND AFTER THE DATE HEREOF, OR (II) THE PERFORMANCE BONDS ISSUED PRIOR
TO THE DATE OF THIS AGREEMENT AND SET FORTH ON SCHEDULE "A" HERETO (THE
"PERFORMANCE BONDS") IN EACH CASE, TO THE FULL EXTENT PERMITTED BY LAW.
EXECUTIVE REPRESENTS AND WARRANTS THAT NO CLAIM OR DEMAND HAS BEEN ASSERTED OR,
TO HIS KNOWLEDGE, HAS BEEN THREATENED TO BE ASSERTED WITH RESPECT TO SUCH
PERFORMANCE BONDS.
6
IN NO EVENT SHALL THE TERMS, PROVISIONS AND CONDITIONS OF THE INDEMNITY PROVIDED
FOR HEREUNDER BE LESS THAN THE SAME AS THOSE PRESENTLY PROVIDED FOR UNDER THE
ARTICLES OF INCORPORATION AND BY-LAWS OF THE COMPANY TO THE EXTENT PERMITTED BY
LAW.
SAID TERMS, PROVISIONS AND CONDITIONS OF INDEMNITY SHALL REMAIN AN
INDEPENDENT, CONTRACTUAL OBLIGATION OF THE COMPANY TO EXECUTIVE FROM AND AFTER
THE DATE HEREOF REGARDLESS OF HOW THE COMPANY MIGHT HEREAFTER AMEND OR CHANGE
ITS ARTICLES OF INCORPORATION OR BY-LAWS TO PROVIDE FOR DIFFERENT TERMS,
CONDITIONS AND PROVISIONS OF INDEMNITY FOR OTHER OFFICERS AND DIRECTORS OF THE
COMPANY.
IN THE EVENT THE COMPANY SHOULD AMEND ITS ARTICLES OF INCORPORATION OR
BY-LAWS TO PROVIDE FOR DIFFERENT TERMS, CONDITIONS AND PROVISIONS OF INDEMNITY
AFTER THE EFFECTIVE DATE HEREOF, EXECUTIVE SHALL BE NOTIFIED IN WRITING OF THE
CHANGE.
EXECUTIVE SHALL THEREAFTER HAVE THIRTY (30) DAYS TO ELECT IN WRITING TO
ACCEPT THE CHANGED CONDITIONS OF INDEMNITY AS A MODIFICATION TO THE COMPANY'S
CONTRACTUAL OBLIGATION HEREUNDER OR TO CONTINUE UNDER THE TERMS OF INDEMNITY AS
PROVIDED FOR HEREIN.
THE COMPANY'S AGREEMENT TO PROVIDE INDEMNITY HEREUNDER
SHALL SURVIVE THE TERMINATION OF THIS CONTRACT REGARDLESS OF THE CAUSE OF
TERMINATION. SUBJECT TO APPLICABLE LAW, THE COMPANY SHALL ADVANCE, PROMPTLY AS
INCURRED, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR EXECUTIVE IN
DEFENDING EXECUTIVE AGAINST ANY CLAIMS FOR WHICH THE COMPANY WOULD BE SO
REQUIRED TO INDEMNIFY EXECUTIVE; PROVIDED (I) EXECUTIVE SHALL OTHERWISE COMPLY
WITH SUCH MANDATORY REQUIREMENTS OF DELAWARE LAW AS MAY BE REQUIRED FOR SUCH
INDEMNIFICATION, AND (II) EXECUTIVE SHALL CAUSE HIS COUNSEL TO COOPERATE FULLY
IN GOOD FAITH WITH SUCH REQUESTS AS THE COMPANY OR ITS COUNSEL MAY REASONABLY
MAKE IN ORDER TO ENDEAVOR TO MINIMIZE SUCH LEGAL FEES, BUT CONSISTENT WITH
PROVIDING AN ADEQUATE DEFENSE OF EXECUTIVE.
(B)
OFFICERS AND DIRECTORS' LIABILITY
INSURANCE.
THE COMPANY AGREES TO PROVIDE, OR CAUSE PARENT TO PROVIDE, AT NO
EXPENSE TO THE EXECUTIVE, INSURANCE INSURING EXECUTIVE IN HIS CAPACITY AS AN
OFFICER AND/OR DIRECTOR OF THE COMPANY (AND/OR AS AN OFFICER OR DIRECTOR OF ANY
CONTROLLED AFFILIATES OF THE PARENT FOR WHICH EXECUTIVE SERVES IN SUCH
CAPACITIES) AS A CONSEQUENCE OF CLAIMS ARISING OUT OF EXECUTIVE'S SERVICE AS AN
OFFICER AND/OR DIRECTOR OF THE COMPANY AND/OR AS AN OFFICER