SAMPLE INDEMNIFICATION PROVISIONS Sample …

1 [NYCORP; :4245B:06/12/00 4:35p] SAMPLE INDEMNIFICATION PROVISIONSS ample INDEMNIFICATION provision from credit agreementcommitment letter (1999):You agree (a) to indemnify and hold harmless BigBank, BBSI, their affiliates and their respectiveofficers, directors, employees, advisors, and agents(each, an "indemnified person") from and against anyand all losses, claims, damages and liabilities towhich any such indemnified person may become subjectarising out of or in connection with this CommitmentLetter, the Facilities, the use of the proceedsthereof, the Transactions or any related transactionor any claim, litigation, investigation orproceeding relating to any of the foregoing,regardless of whether any indemnified person is aparty thereto, and to reimburse each indemnifiedperson upon demand for any reasonable legal or otherexpenses incurred in connection with investigatingor defending any of the foregoing, provided that theforegoing indemnity will not, as to any indemnifiedperson, apply to losses, claims, damages,liabilities or related expenses to the extent theyare found by a final, non-appealable judgment of acourt to arise from the willful misconduct or grossnegligence of such indemnified person, and (b)

2 Toreimburse Big Bank, BBSI and their affiliates ondemand for all out-of-pocket expenses (including duediligence expenses, syndication expenses,consultant's fees and expenses, travel expenses andreasonable fees, charges and disbursements ofcounsel) incurred in connection with the Facilitiesand any related documentation (including, withoutlimitation, this Commitment Letter, the Term Sheet,the Fee Letter and the definitive financingdocumentation) or the administration, amendment,modification or waiver thereof. No indemnifiedperson shall be liable for any indirect orconsequential damages in connection with itsactivities related to the Facilities. [It isunderstood and agreed that, to the extent notprecluded by a conflict of interest, the indemnifiedpersons and you shall endeavor to work cooperativelywith a view to minimizing the legal and otherexpenses associated with any defense and anypotential settlement or judgment. To the extentreasonably practicable and not disadvantageous toany party, it is anticipated that a single counselmay be used.]

3 Settlement of any claim or litigationinvolving any material indemnified amount will2[NYCORP; :4245B:06/12/00 4:35p]require your approval, not to be unreasonablywithheld.]" SAMPLE INDEMNIFICATION provision from underwriter's formof Underwriting Agreement (revised January, 2000): INDEMNIFICATION and Contribution. (a) The Companywill indemnify and hold harmless each Underwriter,its partners, directors and officers and eachperson, if any, who controls such Underwriter withinthe meaning of Section 15 of the Act, against anylosses, claims, damages or liabilities, joint orseveral, to which such Underwriter may becomesubject, under the Act or otherwise, insofar as suchlosses, claims, damages or liabilities (or actionsin respect thereof) arise out of or are based uponany untrue statement or alleged untrue statement ofany material fact contained in any RegistrationStatement, the Prospectus, or any amendment orsupplement thereto, or any related preliminaryprospectus, or arise out of or are based upon theomission or alleged omission to state therein amaterial fact required to be stated therein ornecessary to make the statements therein notmisleading, and will reimburse each Underwriter forany legal or other expenses reasonably incurred bysuch Underwriter in connection with investigating ordefending any such loss, claim, damage, liability oraction as such expenses are incurred.

4 Provided,however, that the Company will not be liable in anysuch case to the extent that any such loss, claim,damage or liability arises out of or is based uponan untrue statement or alleged untrue statement inor omission or alleged omission from any of suchdocuments in reliance upon and in conformity withwritten information furnished to the Company by anyUnderwriter through the Representative[s]specifically for use therein, it being understoodand agreed that the only such information furnishedby any Underwriter consists of the informationdescribed as such in subsection (b) below.[If any Underwriter, or any partner or controllingperson of an Underwriter, is also a director,officer or controlling person of the Company, and ifsuch Underwriter, or partner or controlling person,does not file a waiver of INDEMNIFICATION with theRegistration Statements, insert Insofar as the foregoing indemnity agreement, or therepresentations and warranties contained in3[NYCORP; :4245B:06/12/00 4:35p]Section 2(b), may permit INDEMNIFICATION forliabilities under the Act of any person who is anUnderwriter or a partner or controlling person of anUnderwriter within the meaning of Section 15 of theAct and who, at the date of this Agreement, is adirector, officer or controlling person of theCompany, the Company has been advised that in theopinion of the Commission such PROVISIONS maycontravene Federal public policy as expressed in theAct and may therefore be unenforceable.]

5 In the eventthat a claim for INDEMNIFICATION under suchagreement or such representations and warranties forany such liabilities (except insofar as suchagreement provides for the payment by the Company ofexpenses incurred or paid by a director, officer orcontrolling person in the successful defense of anyaction, suit or proceeding) is asserted by such aperson, the Company will submit to a court ofappropriate jurisdiction (unless in the opinion ofcounsel for the Company the matter has already beensettled by controlling precedent) the question ofwhether or not INDEMNIFICATION by it for suchliabilities is against public policy as expressed inthe Act and therefore unenforceable, and the Companywill be governed by the final adjudication of suchissue.][If there is a Directed Share Program, insert:The Company agrees to indemnify and hold harmlessthe Designated Underwriter and each person, if any,who controls the Designated Underwriter within themeaning of either Section 15 of the Securities Actor Section 20 of the Exchange Act (the DesignatedEntities ), from and against any and all losses,claims, damages and liabilities (including, withoutlimitation, any legal or other expenses reasonablyincurred in connection with defending orinvestigating any such action or claim) (i) causedby any untrue statement or alleged untrue statementof a material fact contained in any materialprepared by or with the consent of the Company fordistribution to Participants in connection with theDirected Share Program or caused by any omission oralleged omission to state therein a material factrequired to be stated therein or necessary to makethe statements therein not misleading.

6 (ii) causedby the failure of any Participant to pay for andaccept delivery of Directed Shares that theParticipant agreed to purchase; or (iii) related to,4[NYCORP; :4245B:06/12/00 4:35p]arising out of, or in connection with the DirectedShare Program, other than losses, claims, damages orliabilities (or expenses relating thereto) that arefinally judicially determined to have resulted fromthe bad faith or gross negligence of the DesignatedEntities.](b) Each Underwriter will severally and not jointlyindemnify and hold harmless the Company, itsdirectors and officers and each person, if any whocontrols the Company within the meaning ofSection 15 of the Act, against any losses, claims,damages or liabilities to which the Company maybecome subject, under the Act or otherwise, insofaras such losses, claims, damages or liabilities (oractions in respect thereof) arise out of or arebased upon any untrue statement or alleged untruestatement of any material fact contained in anyRegistration Statement, the Prospectus, or anyamendment or supplement thereto, or any relatedpreliminary prospectus, or arise out of or are basedupon the omission or the alleged omission to statetherein a material fact required to be statedtherein or necessary to make the statements thereinnot misleading, in each case to the extent, but onlyto the extent, that such untrue statement or allegeduntrue statement or omission or alleged omission wasmade in reliance upon and in conformity with writteninformation furnished to the Company by suchUnderwriter through the Representative[s]

7 Specifically for use therein, and will reimburse anylegal or other expenses reasonably incurred by theCompany in connection with investigating ordefending any such loss, claim, damage, liability oraction as such expenses are incurred, it beingunderstood and agreed that the only such informationfurnished by any Underwriter consists of [(i)] thefollowing information in the Prospectus furnished onbehalf of each Underwriter: the concession andreallowance figures appearing in the paragraph under the caption Underwriting [Ifparagraphs regarding sales to discretionary accountsand/or passive market making are included,insert and the information contained in the [and ] paragraph[s] under thecaption Underwriting ] [If applicable, insert ; and(ii) the following information in the Prospectusfurnished on behalf of [insert name of Underwriter]:[insert description of information, such as material5(1) Special care should be taken to ensure that thedescription of the information, including captionreferences and any references to particular paragraphs orsentences, matches the final Prospectus.]]

8 [NYCORP; :4245B:06/12/00 4:35p]relationship disclosure under the caption Underwriting ].(1)(c) Promptly after receipt by an indemnified partyunder this Section [If a Qualified IndependentUnderwriter ( QIU ) is used insert or Section 9]of notice of the commencement of any action, suchindemnified party will, if a claim in respectthereof is to be made against the indemnifying partyunder subsection (a) or (b) above [If a QIU is usedinsert or Section 9], notify the indemnifyingparty of the commencement thereof; but the omissionso to notify the indemnifying party will not relieveit from any liability which it may have to anyindemnified party otherwise than undersubsection (a) or (b) above [If a QIU is used insert or Section 9]. In case any such action is broughtagainst any indemnified party and it notifies theindemnifying party of the commencement thereof, theindemnifying party will be entitled to participatetherein and, to the extent that it may wish, jointlywith any other indemnifying party similarlynotified, to assume the defense thereof, withcounsel satisfactory to such indemnified party (whoshall not, except with the consent of theindemnified party, be counsel to the indemnifyingparty), and after notice from the indemnifying partyto such indemnified party of its election so toassume the defense thereof, the indemnifying partywill not be liable to such indemnified party underthis Section [If a QIU is used insert orSection 9, as the case may be,] for any legal orother expenses subsequently incurred by suchindemnified party in connection with the defensethereof other than reasonable costs ofinvestigation.

9 [If there is a Directed ShareProgram, insert: Notwithstanding anything containedherein to the contrary, if indemnity may be soughtpursuant to the last paragraph in Section 7(a) hereof in respect of such action or proceeding,then in addition to such separate firm for theindemnified parties, the indemnifying party shall beliable for the reasonable fees and expenses of notmore than one separate firm (in addition to any6[NYCORP; :4245B:06/12/00 4:35p]local counsel) for the Designated Underwriter forthe defense of any losses, claims, damages andliabilities arising out of the Directed ShareProgram, and all persons, if any, who control theDesignated Underwriter within the meaning of eitherSection 15 of the Act of Section 20 of the ExchangeAct.] No indemnifying party shall, without the priorwritten consent of the indemnified party, effect anysettlement of any pending or threatened action inrespect of which any indemnified party is or couldhave been a party and indemnity could have beensought hereunder by such indemnified party unlesssuch settlement (i) includes an unconditionalrelease of such indemnified party from all liabilityon any claims that are the subject matter of suchaction and (ii) does not include a statement as to,or an admission of, fault, culpability or a failureto act by or on behalf of an indemnified party.

10 (d) If the INDEMNIFICATION provided for in thisSection is unavailable or insufficient to holdharmless an indemnified party under subsection (a)or (b) above, then each indemnifying party shallcontribute to the amount paid or payable by suchindemnified party as a result of the losses, claims,damages or liabilities referred to in subsection (a)or (b) above (i) in such proportion as isappropriate to reflect the relative benefitsreceived by the Company on the one hand and theUnderwriters on the other from the offering of theSecurities or (ii) if the allocation provided byclause (i) above is not permitted by applicable law,in such proportion as is appropriate to reflect notonly the relative benefits referred to in clause (i)above but also the relative fault of the Company onthe one hand and the Underwriters on the other inconnection with the statements or omissions whichresulted in such losses, claims, damages orliabilities as well as any other relevant equitableconsiderations.