Common use of Construction of Certain Phrases Clause in Contracts

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (c) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, (i) who shall not have otherwise performed services for the Company or Indemnitee within the last five years and (ii) except as provided in Section 4(b), who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld).

Construction of Certain Phrases. (a) For the purposes of this Agreement, references to an “AFFILIATED PERSON” of the “Company” Indemnitee shall include, in addition to the resulting corporation, include any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agentcontrolling person (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), control person, agent or fiduciary of such constituent corporationthe Indemnitee, or is or was serving at any shareholder of the request of such constituent corporation Company for whom Indemnitee serves as a director, officer, employee, control controlling person, agent or fiduciary of another fiduciary, and any partnership, corporation, partnershiplimited liability company, association, joint venture, employee benefit planstock company, trust or other enterprisejoint venture controlling, Indemnitee shall stand in controlled by or under common control with such a shareholder. For these purposes, “CONTROL” means the same position under possession, directly or indirectly, of the provisions power to direct management and policies of this Agreement with respect to a person or entity, whether through the resulting ownership of voting securities, contract or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continuedotherwise. (b) For purposes of this Agreement Agreement, a “Change in ControlCHANGE IN CONTROL” shall be deemed to have occurred if if, after the date hereof, (i) any “person” (as such term is in used in Sections 13(d)(313(d) and 14(d)(214(d) of the Exchange Act), ) other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock the Company’s shares, (A) who 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 Voting Securities, increases his/her beneficial ownership of such securities by 5% or more over the percentage so owned by such person (except for acquisition of such securities by the Company’s existing shareholders or their affiliates who hold the Company’s shares, directly or indirectly, on the date hereof), or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said the Exchange Act), directly or indirectly, of securities of the Company representing more than 2030% of the total voting power represented by the Company’s then outstanding Voting SecuritiesSecurities (except for acquisition of such securities by the Company’s existing shareholders or their affiliates who hold the Company’s shares, directly or indirectly, on the date hereof), (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation corporation, other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 8060% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (c) For purpose of this Agreement, a “CLAIM” shall mean any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation that the Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or otherwise. (d) For purposes of this Agreement, references to the “Independent Legal CounselCOMPANY” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify is directors, officers, employees, agents, fiduciaries and other Affiliated Persons, so that if the Indemnitee is or was a director, officer, employee, agent, controlling person, fiduciary or an Affiliated Person of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, controlling person, agent or fiduciary or another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, the Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as the Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (e) For the purpose of this Agreement, “CONSOLIDATED ENTITY”, with respect to the Company, shall mean any entity the financial results of which are consolidated with those of the Company in accordance with generally accepted accounting principals in the United States. (f) For purpose of this Agreement, “EXPENSES” shall mean an attorney any and all of the losses, claims, damages, expenses and liabilities, joint or firm of several (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending a witness in or participating in (i) who shall not have otherwise performed services for the Company or Indemnitee within the last five years and (ii) except as provided in Section 4(bincluding on appeal), who shall or preparing to defend, be selected a witness in or participate in, any action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation) related to any Claim, judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company Company) of any Claim and approved by any federal, state, local or foreign taxes imposed on the Indemnitee (which approval as a result of the actual or deemed receipt of any payments under this Agreement, including all interest, assessments and other charges paid or payable in connection with or in respect of such payments. Expenses shall not be unreasonably withheld)also include any deductible or other charges imposed in order to access insurance from the Company’s insurance carriers, and any other charges.

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, person or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on any Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement. (c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Company’s then outstanding Voting Securities, increases his or her beneficial ownership of such securities by 5% or more over the percentage so owned by such person or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, thereof or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (c) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, (i) who shall not have otherwise performed services for the Company or Indemnitee within the last five years and (ii) except as provided in Section 4(b), who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld).

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(313(d) and 14(d)(214(d) of the Securities Exchange ActAct of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Company’s then outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (b) For purposes of this Agreement, “Expense” shall include any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, a Proceeding), judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) of a Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement. (c) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, (i) attorneys who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). Independent Legal Counsel shall be selected as follows: (i) by a majority of the Disinterested Directors if there has not been a Change in Control or there has been a Change in Control which has been approved by a majority of the Incumbent Directors; or (ii) except as provided in Section 4(b)by Indemnitee, who shall be selected subject to the approval by a majority of the Company and approved by Indemnitee Disinterested Directors (which approval shall not be unreasonably withheld), if there has been a Change in Control which has not been approved by a majority of the Incumbent Directors. The Company agrees to pay the reasonable fees of the Independent Legal Counsel, regardless of which party selects the Independent Legal Counsel.

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents employees or fiduciariesagents, so that if Indemnitee is or was a director, officer, employee, agent, control person, employee or fiduciary agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, employee or agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries. (c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(313(d) and 14(d)(214(d) of the Securities Exchange ActAct of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 2050% of the total voting power represented by the Company’s then outstanding Voting SecuritiesSecurities (as defined below), (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (cd) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, (iselected in accordance with the provisions of Section1(c) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (ii) except as provided in Section 4(b)other than with respect to matters concerning the rights of Indemnitee under this Agreement, who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheldor of other indemnitees under similar indemnity agreements).

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement a “"Change in Control” " shall be deemed to have occurred if (i) any “"person” " (as such term is used in Sections 13(d)(313(d) and 14(d)(214(d) of the Securities Exchange ActAct of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the “beneficial owner” , directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Company's then outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or more over the percentage so owned by such person, or (B) becomes the "beneficial owner" (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s 's then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders 's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets. (b) For purposes of this Agreement, "Expense" shall include any and all expenses (including attorneys' fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, a Proceeding), judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) of a Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement. (c) For purposes of this Agreement, “"Independent Legal Counsel” " shall mean an attorney or firm of attorneys, (i) attorneys who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). Independent Legal Counsel shall be selected as follows: (i) by a majority of the Disinterested Directors if there has not been a Change in Control or there has been a Change in Control which has been approved by a majority of the Incumbent Directors; or (ii) except as provided in Section 4(b)by Indemnitee, who shall be selected subject to the approval by a majority of the Company and approved by Indemnitee Disinterested Directors (which approval shall not be unreasonably withheld), if there has been a Change in Control which has not been approved by a majority of the Incumbent Directors. The Company agrees to pay the reasonable fees of the Independent Legal Counsel, regardless of which party selects the Independent Legal Counsel.

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “"Company” " shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, controlling persons, agents or fiduciaries, so that if Indemnitee lndemnitee is or was a director, officer, employee, agent, control controlling person, agent or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control controlling person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee lndemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement, references to ''fines" shall include any excise taxes assessed on any Indemnitee with respect to an employee benefit plan; and references to "serving at the request of the Company" shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to in this Agreement. (c) For purposes of this Agreement a “"Change in Control” " shall be deemed to have occurred if (i) any “"person” " (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, who becomes the “"beneficial owner” " (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s 's then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s 's shareholders was approved by a vote of at least two-two­ thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereofthereof , or (iiii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidationconsolidation , or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s Company 's assets. (cd) For purposes of this Agreement, “"Independent Legal Counsel” " shall mean an attorney or firm of attorneys, (iselected in accordance with the provisions of Section 2(d) hereof, who shall not have otherwise performed services for the Company or any Indemnitee within the last five three years and (ii) except as provided in Section 4(b)other than with respect to matters concerning the right of any Indernnitee under this Agreement, who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheldor of other indemnitees under similar indemnity agreements).

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “CompanyCorporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, agent or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee, agent or fiduciary of the Corporation which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries. (c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(313(d) and 14(d)(214(d) of the Securities Exchange ActAct of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company Corporation or a corporation owned directly or indirectly by the shareholders stockholders of the Company Corporation in substantially the same proportions as their ownership of stock of the CompanyCorporation, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Corporation representing 10% or more of the combined voting power of the Corporation’s then outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company Corporation representing more than 20% of the total voting power represented by the CompanyCorporation’s then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Corporation and any new director whose election by the Board of Directors or nomination for election by the CompanyCorporation’s shareholders stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company Corporation approve a merger or consolidation of the Company Corporation with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company Corporation or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company Corporation approve a plan of complete liquidation of the Company Corporation or an agreement for the sale or disposition by the Company Corporation of (in one transaction or a series of transactions) all or substantially all of the CompanyCorporation’s assets. (c) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, (i) who shall not have otherwise performed services for the Company or Indemnitee within the last five years and (ii) except as provided in Section 4(b), who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld).

Construction of Certain Phrases. (a) For purposes of this Agreement a "Change in Control" shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Company's then outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or more over the percentage so owned by such person, or (B) becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company's then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company's assets. (b) For purposes of this Agreement, references to the “"Company” " shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, agent or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. (c) For purposes of this Agreement, “"Expense" shall include any and all expenses (including attorneys' fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, a Proceeding), judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) of a Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement. (d) For purposes of this Agreement, "Independent Legal Counsel” " shall mean an attorney or firm of attorneys, (i) attorneys who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). Independent Legal Counsel shall be selected as follows: (i) by a majority of the Disinterested Directors if there has not been a Change of Control or there has been a Change of Control which has been approved by a majority of the Incumbent Directors; or (ii) except as provided in Section 4(b)by Indemnitee, who shall be selected subject to the approval by a majority of the Company and approved by Indemnitee Disinterested Directors (which approval shall not be unreasonably withheld), if there has been a Change of Control which has not been approved by a majority of the Incumbent Directors. The Company agrees to pay the reasonable fees of the Independent Legal Counsel, regardless of which party selects the Independent Legal Counsel.

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.: (ba) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said the Exchange Act), directly or indirectly, of securities of the Company representing more than 20% thirty percent (30%) of the total voting power represented by the Company’s then outstanding Voting SecuritiesSecurities (as defined in Section 5.01(f) below), (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% two-thirds (2/3) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets. ; provided that, in no event shall a Change in Control be deemed to include (cA) For purposes a merger, consolidation or reorganization of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm the Company for the purpose of attorneys, (i) who shall not have otherwise performed services for changing the Company’s state of incorporation and in which there is no substantial change in the shareholders of the Company or Indemnitee within its successor (as the last five years and (ii) except as provided in Section 4(bcase may be), who shall or (B) the Company’s first firm commitment underwritten public offering of any of its securities to the general public pursuant to (x) a registration statement filed under the Securities Act, or (y) the securities laws applicable to an offering of securities in another jurisdiction pursuant to which such securities will be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld)listed on an internationally recognized securities exchange.

Construction of Certain Phrases. (a) For purposes of this Agreement, references to the “"Company” " shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents employees or fiduciariesagents, so that if Indemnitee is or was a director, officer, employee, agent, control person, employee or fiduciary agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, control person, employee or agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued. (b) For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries. (c) For purposes of this Agreement a “"Change in Control” " shall be deemed to have occurred if (i) any “"person” " (as such term is used in Sections 13(d)(313(d) and 14(d)(214(d) of the Securities Exchange ActAct of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the shareholders stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “"beneficial owner” " (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 2050% of the total voting power represented by the Company’s 's then outstanding Voting SecuritiesSecurities (as defined below), (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders 's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets. (cd) For purposes of this Agreement, “"Independent Legal Counsel” " shall mean an attorney or firm of attorneys, (iselected in accordance with the provisions of Section 1(c) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (ii) except as provided in Section 4(b)other than with respect to matters concerning the rights of Indemnitee under this Agreement, who shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheldor of other indemnitees under similar indemnity agreements).

Construction of Certain Phrases. (a) a. For purposes of this Agreement, (i) references to the “Company” "other enterprises" shall include, in addition include employee benefit plans; (ii) references to the resulting corporation, "fines" shall include any constituent corporation excise taxes assessed on any Indemnitee with respect to an employee benefit plan; and (including any constituent of a constituentiii) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority references to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person, or fiduciary of such constituent corporation, or is or was "serving at the request of such constituent corporation the Company" shall include any service as a director, officer, employee, control personagent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, with respect to an employee benefit plan, trust its participants or other enterpriseits beneficiaries. In the case of any such employee benefit plan, Indemnitee shall stand be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the same position under interests of the provisions participants and beneficiaries of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continuedemployee benefit plan. (b) b. For purposes of this Agreement a “"Change in Control” " shall be deemed to have occurred if (i) any “"person” " (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, Xxxx Xxxxxxxxx and his affiliates and associates becomes the “"beneficial owner” " (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than 2050% of the total voting power represented by the Company’s 's then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders 's stockholders was approved by a vote of at least two-thirds a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% two-thirds of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s 's assets. (c) c. For purposes of this Agreement, “"Independent Legal Counsel” " shall mean an attorney or firm of attorneys, (ithat is/are experienced in matters of Delaware corporate law, selected in accordance with the provisions of Section 3(b) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last five three years and (ii) except other than with respect to matters concerning the right of any Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). Notwithstanding the foregoing, the term "Independent Legal Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Inde1m1itee's rights under this Agreement. If Independent Legal Counsel is selected by a quorum of Disinterested Directors to be the Reviewing Party, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Legal Counsel so selected. Indemnitee may, within seven days after receipt of written notice, deliver to the Company a written objection to the selection. His objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of independent Counsel as provided defined in this Section 4(b12(c), who and the objection shall set forth with particularity the factual basis of the assertion. If written objection is made, the Independent Legal Counsel so selected shall be disqualified. If, within 20 days after submission by Indemnitee of a demand for indemnification pursuant to this Agreement, no Independent Legal Counsel shall have been selected, or if selected shall have been objected to, in accordance with this Section 12(c), either the Company or Indemnitee may petition a court of competent jurisdiction in the State of Delaware for the appointment as Independent Legal Counsel of a person selected by that court or by any other person that court shall designate, and the Company and approved by Indemnitee (which approval person so appointed shall not be unreasonably withheld)act as Independent Legal Counsel.