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Board or nomination for election by the Company’s stockholders was approved by a vote of atleast two-thirds of the directors then still in office who either were directors at the beginningof the period or whose election or nomination was previously so approved, cease for any reason toconstitute a majority of the Board, (iii) the stockholders of the Company approve a merger orconsolidation or a sale of all or substantially all of the Company’s assets with or to anotherentity, other than a merger, consolidation or asset sale that would result in the holders of theCompany’s outstanding voting securities immediately prior thereto continuing to represent (eitherby remaining outstanding or by being converted into voting securities of the surviving entity) atleast a majority of the total voting power represented by the voting securities of the Company orsuch surviving or successor entity outstanding immediately thereafter, or (iv) the stockholders ofthe Company approve a plan of complete liquidation of the Company.          (d) “Expenses” shall include all out-of-pocket costs of any type or nature whatsoever(including, without limitation, all attorneys’ fees and related disbursements), actually andreasonably incurred by the Indemnitee in connection with either the investigation, defense orappeal of a Proceeding or establishing or enforcing a right to indemnification under thisAgreement, or Section 145 or otherwise; provided, however, that “Expenses” shall not include anyjudgments, fines, ERISA excise taxes or penalties, or amounts paid in settlement of a Proceeding.          (e) “Independent Counsel” means a law firm, or a partner (or, if applicable, member)of such a law firm, that is experienced in matters of corporation law and neither currently is, norin the past five years has been, retained to represent: (i) the Company or the Indemnitee in anymatter material to either such party or (ii) any other party to or witness in the proceeding givingrise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “IndependentCounsel” shall not include any person who, under the applicable standards of professional conductthen prevailing, would have a conflict of interest in representing either the Company or theIndemnitee in an action to determine the Indemnitee’s rights under this Agreement.          (f) “Proceeding” means any threatened, pending, or completed action, suit or otherproceeding, whether civil, criminal, administrative, or investigative.          (g) “Subsidiary” means any corporation of which more than 50% of the outstandingvoting securities is owned directly or indirectly by the Company, by the Company and one or moreother subsidiaries, or by one or more other subsidiaries.     2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as anAgent of the Company, at its will (or under separate agreement, if such agreement exists), in thecapacity the Indemnitee currently serves as an Agent of the Company, so long as the Indemnitee isduly appointed or elected and qualified in accordance with the applicable provisions of the Bylawsof the Company or any subsidiary of the Company or until such time as the Indemnitee tenders his orher resignation in writing; provided, however, that nothing contained in this Agreement is intendedto create any right to continued employment by the Indemnitee.     3. Liability Insurance.          (a) Maintenance of D&O Insurance. The Company hereby covenants and agrees that, solong as the Indemnitee shall continue to serve as an Agent of the Company and thereafter so long asthe Indemnitee shall be subject to any possible Proceeding by reason of the fact that theIndemnitee was an Agent of the Company, the Company, subject to Section 3(c), shall promptly obtainand maintain in full force and effect directors’ and officers’ liability insurance (“D&OInsurance”) in reasonable amounts from established and reputable insurers, as more fullydescribed below.          (b) Rights and Benefits. In all policies of D&O Insurance, the Indemnitee shallqualify as an insured in such a manner as to provide the Indemnitee the same rights and benefits asare accorded to the most favorably insured of the Company’s independent directors (as defined bythe insurer) if the Indemnitee is such an independent director; of the Company’s non-independentdirectors if the Indemnitee is not an independent director; of the Company’s officers if theIndemnitee is an officer of the Company; or of the Company’s key employees, if the Indemnitee isnot a director or officer but is a key employee.
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          (c) Limitation on Required Maintenance of D&O Insurance. Notwithstanding theforegoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Companydetermines in good faith that: such insurance is not reasonably available; the premium costs forsuch insurance are disproportionate to the amount of coverage provided; the coverage provided bysuch insurance is limited by exclusions so as to provide an insufficient benefit; the Indemnitee iscovered by similar insurance maintained by a subsidiary of the Company; the Company is to beacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts oromissions by the Indemnitee; or the Company is to be acquired and D&O Insurance will be maintainedby the acquirer that covers pre-closing acts and omissions by the Indemnitee.     4. Mandatory Indemnification. Subject to the terms of this Agreement:          (a) Third Party Actions. If the Indemnitee is a person who was or is a party or isthreatened to be made a party to any Proceeding (other than an action by or in the right of theCompany) by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reasonof anything done or not done by the Indemnitee in any such capacity, the Company shall indemnifythe Indemnitee against all Expenses and liabilities of any type whatsoever (including, but notlimited to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement)actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,settlement or appeal of such Proceeding, provided the Indemnitee acted in good faith and in amanner the Indemnitee reasonably believed to be in or not opposed to the best interests of theCompany, and, with respect to any criminal action or Proceeding, had no reasonable cause to believehis or her conduct was unlawful.          (b) Derivative Actions. If the Indemnitee is a person who was or is a party or isthreatened to be made a party to any Proceeding by or in the right of the Company by reason of thefact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or notdone by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against allExpenses actually and reasonably incurred by the Indemnitee in connection with the investigation,defense, settlement or appeal of such Proceeding, provided the Indemnitee acted in good faith andin a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of theCompany; except that no indemnification under this Section 4(b) shall be made in respect to anyclaim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable tothe Company by a court of competent jurisdiction unless and only to the extent that the DelawareCourt of Chancery or the court in which such Proceeding was brought shall determine uponapplication that, despite the adjudication of liability but in view of all the circumstances of thecase, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which theDelaware Court of Chancery or such other court shall deem proper.          (c) Actions where Indemnitee is Deceased. If the Indemnitee is a person who was or isa party or is threatened to be made a party to any Proceeding by reason of the fact that theIndemnitee is or was an Agent of the Company, or by reason of anything done or not done by theIndemnitee in any such capacity, and if, prior to, during the pendency of or after completion ofsuch Proceeding the Indemnitee is deceased, the Company shall indemnify the Indemnitee’s heirs,executors and administrators against all Expenses and liabilities of any type whatsoever to theextent the Indemnitee would have been entitled to indemnification pursuant to this Agreement werethe Indemnitee still alive.          (d) Certain Terminations. The termination of any Proceeding or of any claim, issue, ormatter therein by judgment, order, settlement, or conviction, or upon a plea of *nolocontendere* or its equivalent, shall not (except as otherwise expressly provided in thisAgreement) of itself create a presumption that the Indemnitee did not act in good faith and in amanner which the Indemnitee reasonably believed to be in or not opposed to the best interests ofthe Company or, with respect to any criminal action or Proceeding, that the Indemnitee hadreasonable cause to believe that the Indemnitee’s conduct was unlawful.          (e) Limitations. Notwithstanding the foregoing, the Company shall not be obligated toindemnify the Indemnitee for Expenses or liabilities of any type whatsoever for which payment isactually made to or on behalf of the Indemnitee under an insurance policy, or under a valid andenforceable indemnity clause, by-law or agreement.     5. Indemnification for Expenses in a Proceeding in Which the Indemnitee is Wholly orPartly Successful.
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          (a) Successful Defense. Notwithstanding any other provisions of this Agreement, tothe extent the Indemnitee has been successful, on the merits or otherwise, in defense of anyProceeding (including, without limitation, an action by or in the right of the Company) in whichthe Indemnitee was a party by reason of the fact that the Indemnitee is or was an Agent of theCompany at any time, the Company shall indemnify the Indemnitee against all Expenses actually andreasonably incurred by or on behalf of the Indemnitee in connection with the investigation, defenseor appeal of such Proceeding.          (b) Partially Successful Defense. Notwithstanding any other provisions of thisAgreement, to the extent that the Indemnitee is a party to or a participant in any Proceeding(including, without limitation, an action by or in the right of the Company) in which theIndemnitee was a party by reason of the fact that the Indemnitee is or was an Agent of the Companyat any time and is successful, on the merits or otherwise, as to one or more but less than allclaims, issues or matters in such Proceeding, the Company shall indemnify the Indemnitee againstall Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection witheach successfully resolved claim, issue or matter.          (c) Dismissal. For purposes of this section and without limitation, the terminationof any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shallbe deemed to be a successful result as to such claim, issue or matter.     6. Mandatory Advancement of Expenses. Subject to the terms of this Agreement andfollowing notice pursuant to Section 7(a) below, the Company shall advance all Expenses reasonablyincurred by the Indemnitee in connection with the investigation, defense, settlement or appeal ofany Proceeding to which the Indemnitee is a party or is threatened to be made a party by reason ofthe fact that the Indemnitee is or was an Agent of the Company (unless there has been a finaldetermination that the Indemnitee is not entitled to indemnification for such Expenses) uponreceipt of (i) an undertaking by or on behalf of the Indemnitee to repay the amount advanced in theevent that it shall ultimately be determined that the Indemnitee is not entitled to indemnificationby the Company and (ii) satisfactory documentation supporting such Expenses. Such advances areintended to be an obligation of the Company to the Indemnitee hereunder and shall in no event bedeemed to be a personal loan. The advances to be made hereunder shall be paid by the Company to theIndemnitee within twenty (20) days following delivery of a written request therefor by theIndemnitee to the Company. In the event that the Company fails to pay Expenses as incurred by theIndemnitee as required by this paragraph, Indemnitee may seek mandatory injunctive relief from anycourt having jurisdiction to require the Company to pay Expenses as set forth in this paragraph. IfIndemnitee seeks mandatory injunctive relief pursuant to this paragraph, it shall not be a defenseto enforcement of the Company’s obligations set forth in this paragraph that Indemnitee has anadequate remedy at law for damages.     7. Notice and Other Indemnification Procedures.          (a) Notice by Indemnitee. Promptly after receipt by the Indemnitee of notice of thecommencement of or the threat of commencement of any Proceeding, the Indemnitee shall, if theIndemnitee believes that indemnification with respect thereto may be sought from the Company underthis Agreement, notify the Company in writing of the commencement or threat of commencementthereof.          (b) Insurance. If the Company receives notice pursuant to Section 7(a) hereof of thecommencement of a Proceeding that may be covered under D&O Insurance then in effect, the Companyshall give prompt notice of the commencement of such Proceeding to the insurers in accordance withthe procedures set forth in the respective policies. The Company shall thereafter take allnecessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, allamounts payable as a result of such proceeding in accordance with the terms of such policies.          (c) Defense. In the event the Company shall be obligated to pay the Expenses of anyProceeding against the Indemnitee, the Company shall be entitled to assume the defense of suchProceeding, with counsel selected by the Company and approved by the Indemnitee (which approvalshall not be unreasonably withheld), upon the delivery to the Indemnitee of written notice of itselection so to do. After delivery of such notice, and the retention of such counsel by the Company,the Company will not be liable to the Indemnitee under this Agreement for any fees of counselsubsequently incurred by the Indemnitee with respect to the same Proceeding, provided that (i) theIndemnitee shall have the right to employ his or her own counsel in any such Proceeding at theIndemnitee’s expense; and (ii) the Indemnitee shall have the right to employ his or her own counselin any such Proceeding at the
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Company’s expense if (A) the Company has authorized the employment of counsel by theIndemnitee at the expense of the Company, (B) the Indemnitee shall have reasonably concluded thatthere may be a conflict of interest between the Company and the Indemnitee in the conduct of anysuch defense, (C) after a Change in Control not approved by a majority of the members of the Boardwho were directors immediately prior to such Change in Control, or (D) the Company shall not, infact, have employed counsel to assume the defense of such Proceeding.     8. Right to Indemnification.          (a) Right to Indemnification. In the event that Section 5(a) is inapplicable, theCompany shall indemnify the Indemnitee pursuant to this Agreement unless, and except to the extentthat, it shall have been determined by one of the methods listed in Section 8(b) that theIndemnitee has not met the applicable standard of conduct required to entitle the Indemnitee tosuch indemnification.          (b) Determination of Right to Indemnification. A determination of the Indemnitee’sright to indemnification hereunder shall be made at the election of the Board by (i) a majorityvote of directors who are not parties to the Proceeding for which indemnification is being sought,even though less than a quorum, or by a committee consisting of directors who are not parties tothe Proceeding for which indemnification is being sought, who, even though less than a quorum, havebeen designated by a majority vote of the disinterested directors, or (ii) if there are no suchdisinterested directors or if the disinterested directors so direct, by Independent Counsel in awritten opinion to the Board, a copy of which shall be delivered to the Indemnitee, or (iii) by thestockholders of the Company, or (iv) by a panel of three arbitrators, one of whom is selected bythe Company, one of whom is selected by the Indemnitee and the last of whom is selected by thefirst two arbitrators so selected; *provided, however*, that, following any Change in Control notapproved by a majority of the members of the Board who were directors immediately prior to suchChange in Control, such determination shall be made by an Independent Counsel or by a panel ofarbitrators as specified in clause (iv) above.          (c) Submission for Decision. As soon as practicable, and in no event later thanthirty (30) days after the Indemnitee’s written request for indemnification, the Board shall selectthe method for determining the Indemnitee’s right to indemnification. The Indemnitee shallcooperate with the person or persons or entity making such determination with respect to theIndemnitee’s right to indemnification, including providing to such person, persons or entity uponreasonable advance request any documentation or information which is not privileged or otherwiseprotected from disclosure and which is reasonably available to the Indemnitee and reasonablynecessary to such determination. Any Independent Counsel, member of the Board or stockholder of theCompany shall act reasonably and in good faith in making a determination regarding the Indemnitee’sentitlement to indemnification under this Agreement.          (d) Application to Court. If (i) the claim for indemnification or advancement ofExpenses is denied, in whole or in part, (ii) no disposition of such claim is made by the Companywithin ninety (90) days after the request therefor, (iii) the advancement of Expenses is not timelymade pursuant to Section 6 of this Agreement or (iv) payment of indemnification is not madepursuant to Section 5 of this Agreement, the Indemnitee shall have the right to apply to theDelaware Court of Chancery, the court in which the Proceeding is or was pending or any other courtof competent jurisdiction, for the purpose of enforcing the Indemnitee’s right to indemnification(including the advancement of Expenses) pursuant to this Agreement.          (e) Expenses Related to the Enforcement or Interpretation of this Agreement. TheCompany shall indemnify the Indemnitee against all reasonable Expenses incurred by the Indemniteein connection with any hearing or proceeding under this Section 8 involving the Indemnitee andagainst all reasonable Expenses incurred by the Indemnitee in connection with any other proceedingbetween the Company and the Indemnitee involving the interpretation or enforcement of the rights ofthe Indemnitee under this Agreement, unless a court of competent jurisdiction finds that each ofthe claims and/or defenses of the Indemnitee in any such proceeding was frivolous or made in badfaith.     9. Exceptions. Any other provision herein to the contrary notwithstanding, theCompany shall not be obligated:
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          (a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to theIndemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemniteeand not by way of defense, with a reasonable allocation where appropriate, unless (i) suchindemnification is expressly required to be made by law, (ii) the Proceeding was authorized by theBoard, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant tothe powers vested in the Company under the General Corporation Law of Delaware or (iv) theProceeding is brought to establish or enforce a right to indemnification under this Agreement orany other statute or law or otherwise as required under Section 145 in advance of a finaldetermination;          (b) Lack of Good Faith. To indemnify the Indemnitee for any Expenses incurred by theIndemnitee with respect to any Proceeding instituted by the Indemnitee to enforce or interpret thisAgreement, if a court of competent jurisdiction determines that each of the material assertionsmade by the Indemnitee in such Proceeding was not made in good faith or was frivolous;          (c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement forany amounts paid in settlement of a Proceeding unless the Company consents to such settlement,which consent shall not be unreasonably withheld;          (d) Claims Under Section 16(b). To indemnify the Indemnitee for Expenses and thepayment of profits made from the purchase and sale (or sale and purchase) by the Indemnitee ofsecurities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of1934, as amended, or similar provisions of state statutory law or common law; or          (e) Payments Contrary to Law. To indemnify or advance Expenses to the Indemnitee forwhich payment is prohibited by applicable law.     10. Non-Exclusivity. The provisions for indemnification and advancement of Expensesset forth in this Agreement shall not be deemed exclusive of any other rights which the Indemniteemay have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the voteof the Company’s stockholders or disinterested directors, other agreements, or otherwise, both asto action in the Indemnitee’s official capacity and as to action in another capacity whileoccupying the Indemnitee’s position as an Agent of the Company, and the Indemnitee’s rightshereunder shall continue after the Indemnitee has ceased acting as an Agent of the Company andshall inure to the benefit of the heirs, executors and administrators of the Indemnitee.     11. Permitted Defenses. It shall be a defense to any action for which a claim forindemnification is made under this Agreement (other than an action brought to enforce a claim forExpenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered tothe Company) that the Indemnitee is not entitled to indemnification because of the limitations setforth in Sections 4 and 9 hereof. Neither the failure of the Company (including its Board ofDirectors) or an Independent Counsel to have made a determination prior to the commencement of suchenforcement action that indemnification of the Indemnitee is proper in the circumstances, nor anactual determination by the Company (including its Board of Directors) or an Independent Counselthat such indemnification is improper, shall be a defense to the action or create a presumptionthat the Indemnitee is not entitled to indemnification under this Agreement or otherwise.     12. Subrogation. In the event the Company is obligated to make a payment under thisAgreement, the Company shall be subrogated to the extent of such payment to all of the rights ofrecovery under an insurance policy or any other indemnity agreement covering the Indemnitee, whoshall execute all documents required and take all action that may be necessary to secure suchrights and to enable the Company effectively to bring suit to enforce such rights (provided thatthe Company pays the Indemnitee’s costs and expenses of doing so), including without limitation byassigning all such rights to the extent of such indemnification or advancement of Expenses.     13. Survival of Rights.          (a) All agreements and obligations of the Company contained herein shall continue during theperiod Indemnitee is an Agent of the Company and shall continue thereafter so long as Indemniteeshall be subject to any
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possible claim or threatened, pending or completed Proceeding by reason of the fact thatIndemnitee was serving in the capacity referred to herein.          (b) The Company shall require any successor to the Company (whether direct or indirect, bypurchase, merger, consolidation or otherwise) to all or substantially all of the business or assetsof the Company, expressly to assume and agree to perform this Agreement in the same manner and tothe same extent that the Company would be required to perform if no such succession had takenplace.     14. Interpretation of Agreement. It is understood that the parties hereto intend thisAgreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to thefullest extent permitted by law, including those circumstances in which indemnification wouldotherwise be discretionary.     15. Severability. If any provision or provisions of this Agreement shall be held tobe invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality andenforceability of the remaining provisions of the Agreement (including, without limitation, allportions of any paragraphs of this Agreement containing any such provision held to be invalid,illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not inany way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions ofthis Agreement (including, without limitation, all portions of any paragraph of this Agreementcontaining any such provision held to be invalid, illegal or unenforceable, that are not themselvesinvalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifestedby the provision held invalid, illegal or unenforceable and to give effect to Section 14 hereof.     16. Modification and Waiver. No supplement, modification or amendment of thisAgreement shall be binding unless it is in a writing signed by both of the parties hereto. Nowaiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver ofany other provisions hereof (whether or not similar) nor shall such waiver constitute a continuingwaiver.     17. Notice. All notices, requests, demands and other communications under thisAgreement shall be in writing and shall be deemed to have been duly given (a) upon delivery ifdelivered by hand to the party to whom such notice or other communication shall have been directed,(b) if mailed by certified or registered mail with postage prepaid, return receipt requested, onthe third business day after the date on which it is so mailed, (c) one business day after thebusiness day of deposit with a nationally recognized overnight delivery service, specifying nextday delivery, with written verification of receipt, or (d) on the same day as delivered byconfirmed facsimile transmission if delivered during business hours or on the next successivebusiness day if delivered by confirmed facsimile transmission after business hours. Addresses fornotice to either party shall be as shown on the signature page of this Agreement, or to such otheraddress as may have been furnished by either party in the manner set forth above.     18. Governing Law. This Agreement shall be governed exclusively by and construedaccording to the laws of the State of Delaware as applied to contracts between Delaware residentsentered into and to be performed entirely within Delaware. This Agreement is intended to be anagreement of the type contemplated by Section 145 (f) of the General Corporation Law of Delaware.     19. Counterparts. This Agreement may be executed in one or more counterparts, each ofwhich shall for all purposes be deemed to be an original but all of which together shall constituteone and the same Agreement. Only one such counterpart signed by the party against whom enforcementis sought needs to be produced to evidence the existence of this Agreement.* * *