exv10w1



 






Exhibit 10.1




INDEMNITY AGREEMENT




          This
Indemnity Agreement, dated as of                
                    
     ,                
      is made by and between HANMI
FINANCIAL CORPORATION, a Delaware corporation (the “Company”), and        
                                 , a
director, officer or key employee of the Company or one of the Company’s subsidiaries or other
service provider who satisfies the definition of Indemnifiable Person set forth below (the
“Indemnitee”).



RECITALS




          A. The Company is aware that competent and experienced persons are increasingly reluctant
to serve as representatives of corporations unless they are protected by comprehensive liability
insurance and/or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such representatives;



          B. Plaintiffs often seek damages in such large amounts and the costs of litigation may be
so substantial (whether or not the case is meritorious), that the defense and/or settlement of
such litigation are often beyond the personal resources of representatives;



          C. The Company believes that it is unfair for its representatives and the representatives
of its Subsidiaries or Affiliates (as defined below) to assume the risk of large judgments and
Expenses and Other Liabilities (as defined below) that may be incurred in cases in which the
representative received no personal profit and in cases where the representative was not
culpable;



          D. The Company recognizes that the issues in controversy in litigation against a
representative of a corporation such as the Company or a Subsidiary or Affiliate of the Company
are often related to the knowledge, motives and intent of such representatives, that he or she
is usually the only witness with knowledge of the essential facts and exculpating circumstances
regarding such matters and that the long period of time which usually elapses before the trial
or other disposition of such litigation often extends beyond the time that the representative
can reasonably recall such matters; and may extend beyond the normal time for retirement for
such representative with the result that the representative, or in the event of his or her
death, his or her spouse, heirs, executors or administrators may be faced with limited ability
and undue hardship in maintaining an adequate defense, which may discourage such a
representative from serving in that position;



          E. Based upon their experience as business managers, the members of the Board of Directors
of the Company (the “Board”) have concluded that, to retain and attract talented and
experienced individuals to serve as representatives of the Company and its Subsidiaries and
Affiliates and to encourage such individuals to take the business risks necessary for the
success of the Company and its Subsidiaries and Affiliates, it is necessary for the Company to
contractually indemnify certain of its representatives and the representatives of its
Subsidiaries and Affiliates, and to assume for itself maximum liability for Expenses and Other
Liabilities in connection with claims against such representatives in



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connection with their service to the Company and its Subsidiaries and Affiliates, and have
further concluded that the failure to provide such contractual indemnification could result in
great harm to the Company and its Subsidiaries and Affiliates and the Company’s stockholders;



          F. Section 145 of the Delaware General Corporation Law, under which the Company is
organized (“Section 145”), empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as
directors, officers, employees or agents of other corporations, partnerships, joint ventures,
trusts or other enterprises, and expressly provides that the indemnification provided by Section
145 is not exclusive;



          G. The Company has determined that the liability insurance coverage available to the
Company and its Subsidiaries and Affiliates for their representatives as of the date hereof is
inadequate and/or unreasonably expensive. The Company believes, therefore, that the interests
of the Company’s stockholders would best be served by the indemnification by the Company of
selected representatives of the Company and its Subsidiaries and Affiliates;



          H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
representative of the Company and/or the Subsidiaries or Affiliates of the Company free from
undue concern about inappropriate claims for damages arising out of or related to such services
to the Company and/or the Subsidiaries or Affiliates of the Company;



          I. The Bylaws of the Company require the Company to indemnify those representatives of the
Company who are officers or directors of the Company and permit the Company to indemnify other
representatives of the Company and its Subsidiaries and Affiliates in accordance with governing
law and the Indemnitee has been serving and continues to serve as a representative of the
Company and/or its Subsidiaries and/or Affiliates in part in reliance on such Bylaws;



          J. The Indemnitee is willing to serve, or to continue to serve, the Company and/or the
Subsidiaries and Affiliates of the Company, provided that Indemnitee is furnished the indemnity
provided for herein; and



          K. In recognition of Indemnitee’s need for substantial protection against personal
liability in order to support and encourage Indemnitee’s continued service to the Company and/or
its Subsidiaries and Affiliates in an effective manner, the difficulty in obtaining satisfactory
director and officer liability insurance coverage, and Indemnitee’s reliance on the Company’s
Bylaws and applicable law, and in part to provide Indemnitee with specific contractual assurance
that the protection promised or permitted by such Bylaws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of such Bylaws or any change
in the composition of the Board or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and the advancement of Expenses
to Indemnitee to the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement, and, to the



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extent insurance is maintained, for the continued coverage of Indemnitee under the directors’
and officers’ liability insurance policies of the Company and its Subsidiaries and Affiliates.



AGREEMENT




          NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:



     1. Definitions.



          (a) Affiliate. For purposes of this Agreement, “Affiliate” of the Company means any
corporation, partnership, joint venture, trust or other enterprise in respect of which the
Indemnitee is or was or will be serving as a director, officer, advisory director, trustee,
manager, member, partner, employee, agent, attorney, consultant, member of the entity’s governing
body (whether constituted as a board of directors, board of managers, general partner or
otherwise), fiduciary, or in any other similar capacity at the direct or indirect request of the
Company, and including, but not limited to, any employee benefit plan of the Company or a
Subsidiary or Affiliate of the Company.



          (b) Expenses. For purposes of this Agreement, “Expenses” means all direct and
indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees
and related disbursements, and other out-of-pocket costs, including, without limitation, experts’
fees, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred by the Indemnitee in connection
with the inquiry, investigation, defense or appeal of a Proceeding (as defined below),
establishing, defending or enforcing a right to indemnification under this Agreement, Section 145
or otherwise or being a witness in or participating in (including on appeal) any Proceeding, or
preparing for the inquiry, defense or appeal of a Proceeding or for being a witness in or
participating in (including on appeal) any Proceeding; provided, however, that Expenses shall not
include any judgments, fines, ERISA (or other employee benefit plan related) excise taxes or
penalties or amounts paid in settlement of a Proceeding.



          (c) Indemnifiable Event. For purposes of this Agreement, “Indemnifiable Event” means
any event or occurrence related to



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Indemnitee’s service for the Company or its Subsidiaries and/or
Affiliates as an Indemnifiable Person (as defined below), or by reason of anything done or not
done, or any act or omission, by Indemnitee in any such capacity.



          (d) Indemnifiable Person. For the purposes of this Agreement, “Indemnifiable Person”
means any person who is or was a director, officer, employee, attorney, advisory director, trustee,
manager, member, partner, consultant, member of an entity’s governing body (whether constituted as
a board of directors, board of managers, general partner or otherwise) or other agent or fiduciary
of the Company or a Subsidiary or Affiliate of the Company; or is or was serving at the request of
the Company, or for the convenience of, or to represent the interest of the Company or a Subsidiary
or Affiliate of the Company as a director, officer, employee, attorney, advisory director, trustee,
manager, member, partner, consultant, member of an entity’s governing body (whether constituted as
a board of directors, board of managers, general partner or otherwise) or other agent or fiduciary
of another foreign or domestic corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise or
entity; or was a director, officer, employee, attorney, advisory director, trustee, manager,
member, partner, consultant, member of an entity’s governing body (whether constituted as a board
of directors, board of managers, general partner or otherwise) or other agent or fiduciary of a
foreign or domestic corporation or other enterprise which was a predecessor of the Company or a
Subsidiary of the Company, or was a director, officer, employee, attorney, advisory director,
trustee, manager, member, partner, consultant, member of an entity’s governing body (whether
constituted as a board of directors, board of managers, general partner or otherwise) or other
agent or fiduciary of another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise or entity at the request of, for the convenience
of, or to represent the interests of such predecessor.



          (e) Other Liabilities. For purposes of this Agreement, “Other Liabilities” means any
and all liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA
(or other benefit plan related) excise taxes or penalties, and amounts paid in settlement and all
interest, taxes, assessments and other charges paid or payable in



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connection with or in respect of
any Expenses or any such judgments, fines, ERISA (or other benefit plan related) excise taxes or
penalties, or amounts paid in settlement).



          (f) Proceeding. For the purposes of this Agreement, “Proceeding” means any
threatened, pending, or completed action, suit or other proceeding, whether civil, criminal or
administrative and including any appeal thereof, or any inquiry or investigation, whether
instituted by the Company or any governmental agency or any other party, that Indemnitee in good
faith believes might lead to the institution of any such action, suit or other proceeding, whether
civil, criminal, administrative, investigative or any other type whatsoever, including any
arbitration or other alternative dispute resolution mechanism.



          (g) Subsidiary. For purposes of this Agreement, “Subsidiary” means any corporation
controlled directly by the Company, or indirectly by the Company through one or more
intermediaries.



     2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve the
Company as an Indemnifiable Person in the capacity or capacities in which Indemnitee currently
serves the Company as an Indemnifiable Person, and any additional capacity in which Indemnitee may
agree to serve, until such time as Indemnitee’s service in a particular capacity shall end
according to the terms of an agreement, the Company’s Certificate of Incorporation or Bylaws,
governing law, or otherwise. Nothing contained in this Agreement is intended to create any right
to continued employment or other form of service for the Company or a Subsidiary or Affiliate of
the Company by Indemnitee.



     3. Mandatory Indemnification. In the event Indemnitee was, is or becomes a party to
or witness or other participant in, or is threatened to be made a party to or witness or other
participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the
Company shall hold harmless and indemnify the Indemnitee to the fullest extent not prohibited by
the provisions of the Company’s Bylaws and the Delaware General Corporation Law (“GCL”), as the
same may be amended from time to time (but only to the extent that such amendment permits the
Company to provide broader indemnification rights than the Bylaws or
the GCL permitted prior to the adoption of such amendment). In



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addition to and not in limitation of the indemnification otherwise provided for herein, and subject only to the exclusions
set forth in Section 10 below, the Company hereby further agrees to hold harmless and indemnify
Indemnitee as follows:



          (a) Third Party Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in the right of the
Company, which actions are addressed in Section 3(b) below) by reason of the fact that he or she is
or was serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person,
or by reason of anything done or not done by Indemnitee in any such capacity as an Indemnifiable
Person, or by reason of an Indemnifiable Event, against any and all Expenses and Other Liabilities
incurred by Indemnitee in connection with (including in preparation for) the inquiry,
investigation, defense, settlement or appeal of such Proceeding if Indemnitee acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or Proceeding, had no reasonable cause to believe
his or her conduct was unlawful; and



          (b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he or she is or was serving the Company or a
Subsidiary or Affiliate of the Company as an Indemnifiable Person, or by reason of anything done or
not done by Indemnitee in any such capacity as an Indemnifiable Person, or by reason of an
Indemnifiable Event, against any and all Expenses and Other Liabilities incurred by Indemnitee in
connection with the inquiry, investigation, defense, settlement, or appeal of such Proceeding if
Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company; except that no indemnification under this subsection
shall be made in respect of any claim, issue or matter as to which such person shall have been
finally adjudged to be liable to the Company, unless and only to the extent that the Court of
Chancery of the State of Delaware (“Court of Chancery”) or the court in which such Proceeding was
brought shall determine upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for
such



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amounts which the Court of Chancery or such other court shall deem proper.



          (c) Determination of “Good Faith”. For purposes of any determination of “good faith”
hereunder, Indemnitee shall be deemed to have acted in good faith if in taking such action
Indemnitee relied on the records or books of account of the Company or a Subsidiary or Affiliate of
the Company, including financial statements, or on information, opinions, reports or statements
provided to Indemnitee by the officers or other employees of the Company or a Subsidiary or
Affiliate of the Company in the course of their duties, or on the advice of legal counsel for the
Company or a Subsidiary or Affiliate of the Company, or on information or records given or reports
made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public
accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate
of the Company, or by any other person (including legal counsel, accountants and financial
advisors) as to matters Indemnitee reasonably believes are within such other person’s professional
or expert competence and who has been selected with reasonable care by or on behalf of the Company.
In connection with any determination as to
whether Indemnitee is entitled to be indemnified hereunder, the Reviewing Party (as defined
below) or court shall presume that the Indemnitee has satisfied the applicable standard of conduct
and is entitled to indemnification, and the burden of proof shall be on the Company to establish,
by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this
Section 3(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this
Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person
serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall
not be imputed to Indemnitee for purposes of determining the right to indemnification hereunder.



     4. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any Expenses or Other
Liabilities incurred by Indemnitee (a) in connection with (including in preparation for) the
inquiry, investigation, defense, settlement or appeal of a Proceeding, (b)



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as or in preparation to
be a witness or participant in a Proceeding, or (c) otherwise, but not entitled, however, to
indemnification for the total amount of such Expenses or Other Liabilities, the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the portion thereof to
which the Indemnitee is not entitled as determined pursuant to the standard set forth in Section 3
above. For avoidance of doubt, if Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee in connection with each
successfully resolved claim, issue or matter. Indemnitee’s satisfaction of the applicable standard
of conduct described in Section 3 above with respect to a particular claim, issue or matter shall
be considered a successful resolution as to such claim, issue or matter. Furthermore, for purposes
of this Agreement and without limitation, the termination of any claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a successful resolution as to such claim,
issue or matter. In any review or Proceeding to determine the extent of indemnification, the
Company shall bear the burden to establish, by clear and convincing evidence, the lack of a
successful resolution of a particular claim, issue or matter and which amounts sought in indemnity
are allocable to claims, issues or matters which were not successfully resolved.



     5. Liability Insurance. So long as Indemnitee shall continue to serve the Company or
a Subsidiary or Affiliate of the Company as an Indemnifiable Person and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending or completed Proceeding as
a result of an Indemnifiable Event, the Company shall use its commercially reasonable efforts to
maintain in full force and effect for the benefit of Indemnitee as an insured (i) liability
insurance issued by one or more reputable insurers and having the policy amount and deductible
deemed appropriate by the Board and providing in all respects coverage at least comparable to and
in the same amount as that then being provided to the Chairman of the Board or the Chief Executive
Officer of the Company and (ii) any replacement or substitute policies issued by one or more
reputable insurers providing in all respects coverage at least comparable to and in the same amount
as that currently provided under such existing policy and providing in all respects



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coverage at
least comparable to and in the same amount as that then being provided to the Chairman of the Board
or the Chief Executive Officer of the Company (collectively, “D&O Insurance”). The Company may
make other financial arrangements in order to satisfy any obligations that it may incur under this
Agreement, including but not limited to establishing one
or more trust funds, letters of credit, or surety bonds on behalf of the Indemnitee against
any and all liability, whether asserted against him or her in his or her capacity as an
Indemnifiable Person or arising out of such capacity, whether or not the Company would have the
power to indemnify him or her against such liability under the provisions of this Agreement or
under the GCL as it may then be in effect, or otherwise. The purchase, establishment and
maintenance of any such insurance or other arrangements shall not in any way limit or affect the
rights and obligations of the Company or of the Indemnitee under this Agreement except as expressly
provided herein, and the execution and delivery of this Agreement by the Company and the Indemnitee
shall not in any way limit or affect the rights and obligations of the Company or the other party
or parties thereto under any such insurance or other arrangement.



     6. Mandatory Advancement of Expenses. Subject to Section 10 below, the Company shall
advance prior to the final disposition of the Proceeding all Expenses incurred by the Indemnitee in
connection with (including in preparation for) a Proceeding related to an Indemnifiable Event.
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company
under the provisions of this Agreement, the Company’s Bylaws or the GCL. The advances to be made
hereunder shall be paid by the Company to the Indemnitee or directly to a third party designated by
Indemnitee within ten (10) days following delivery of a written request therefor by the Indemnitee
to the Company. In addition, for avoidance of doubt, the Company agrees to pay promptly, whether
by way of reimbursement to Indemnitee or direct payment to a third party designated by Indemnitee,
all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with (including in
preparation for) any Proceeding to which Indemnitee is a witness or other participant by reason of
the fact that Indemnitee is or was serving the Company or a Subsidiary or Affiliate of



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the Company
as an Indemnifiable Person. Indemnitee’s right to advancement of Expenses hereunder is absolute
and shall not be subject to any prior determination by any Reviewing Party that the Indemnitee has
satisfied any applicable standard of conduct for indemnification. Indemnitee’s undertaking to
repay any Expenses advanced to the Indemnitee hereunder shall not be subject to the accrual or
payment of any interest thereon. Indemnitee’s undertaking to repay any Expenses advanced to the
Indemnitee hereunder shall also be unsecured, unless the Company reasonably determines (1) that
there is a substantial risk supported by evidence that Indemnitee may not repay such advanced
amounts in the event that it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company and (2) that the Company will not be reasonably able to obtain and
enforce a court judgment for repayment in the United States of America, in which case the Company
shall obtain reasonable security from Indemnitee, whether in the form of secured collateral, the
funding of an escrow account, Indemnitee’s posting of a letter of credit, or otherwise, prior to
any advancement of Expenses hereunder. Indemnitee shall select the form of security to be provided
to the Company, but the selected form must be consented to in writing by the Company, which written
consent may not be unreasonably withheld.



     7. Enforcement. Any right to indemnification, advancement of Expenses or the exercise
of other rights granted by this Agreement to Indemnitee shall be enforceable by or on behalf of
Indemnitee in any court of competent jurisdiction if (i) the claim for indemnification or
advancement of Expenses is denied, in whole or in part, or Indemnitee’s exercise of his or her
rights is disputed, in whole or in part, or (ii) no decision on such claim is made within the
applicable time period set forth herein. Indemnitee, in such enforcement action, shall also be
entitled to be paid all Expenses associated with enforcing his or her claim or exercise of
rights, unless as a part of such enforcement action, the court of competent jurisdiction determines
that the action was instituted in bad faith or was frivolous or it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified by the Company under the provisions of this
Agreement, the Company’s Bylaws or the GCL with respect to the underlying claim or claims. It
shall be a defense to any action for which a claim for indemnification is made under Section 3



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hereof (other than an action brought to enforce a claim for Expenses made under Section 6 hereof,
provided that the required undertaking has been tendered to the Company) that Indemnitee is not
entitled to indemnification because of the limitations set forth in Section 10 hereof. Neither the
failure of the Company (including the Board or its stockholders) to have made a determination prior
to the commencement of such enforcement action that indemnification of Indemnitee is proper under
the circumstances, nor an actual determination by the Company (including the Board, its
stockholders, or otherwise under Section 9(d)) that such indemnification is improper shall be a
defense to the action or create a presumption that Indemnitee is not entitled to indemnification
under this Agreement or otherwise. In addition, in the event of an action instituted by or in the
name of the Company or a Subsidiary or Affiliate of the Company to enforce or interpret the terms
of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in
defense of such action (including with respect to Indemnitee’s counterclaims and cross-claims made
in such action and including any appeal), unless as a part of such action, the court of competent
jurisdiction determines that Indemnitee’s defenses to such action were made in bad faith or were
frivolous or it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Company under the provisions of this Agreement, the Company’s Bylaws or the GCL
with respect to the underlying claims or claims. The Board, may in its sole discretion, provide by
resolution for payment of such Expenses to Indemnitee even if the Board is not certain that
Indemnitee is or will be entitled to the payment of his or her Expenses under the provisions of
this Section 7.



     8. Notice and Other Indemnification Procedures.



          (a) After receipt by the Indemnitee of notice of the commencement of or the threat of
commencement of any Proceeding, the Indemnitee shall, if the Indemnitee believes that
indemnification or advancement of Expenses with respect thereto may be sought from the Company
under this Agreement, notify the Company of the commencement or threat of commencement thereof.
However, a failure so to notify the Company within a reasonable period of time following
Indemnitee’s receipt of such notice shall not relieve the Company from any liability that it may
have to the Indemnitee otherwise than under this



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Agreement, including, without limitation, its
liability under its Certificate of Incorporation, Bylaws, or the GCL.



          (b) The Indemnitee shall be entitled to select his or her own counsel to defend him or her
with respect to a Proceeding and such counsel shall be paid directly by the Company in accordance
with the provisions of Section 6. In the event that there is more than one defendant in a
particular Proceeding and the Company assumes control of the defense of such Proceeding, Indemnitee
agrees to cooperate with the Company in the selection of primary counsel. With respect to any such
Proceeding, the Company shall be entitled to participate therein at its own expense, and in the
event the Company shall be obligated to advance the Expenses for any Proceeding against the
Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election so to do. After delivery of such notice,
approval of such counsel by the Indemnitee, 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 counsel
subsequently incurred by the Indemnitee with respect to the same Proceeding; provided, however,
that (i) the Indemnitee shall have the right to employ his or her own counsel in any such
Proceeding at the Indemnitee’s expense, and (ii) if (A) the selection of separate counsel by the
Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall have notified
the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of any such defense, and the Board
reasonably concurs with Indemnitee’s conclusion, or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such Proceeding, the Expenses of Indemnitee’s counsel
shall be paid by the Company.



     9. Determination of Right to Indemnification.



          (a) Unless Indemnitee is not entitled to indemnification as a result of an exclusion set forth
in Section 10 below, the Company shall indemnify the Indemnitee against Expenses and Other
Liabilities paid or incurred by Indemnitee in connection with any Proceeding referred to in Section
3 of this Agreement or any other Proceeding arising out of an



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Indemnifiable Event, including in the
event that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding
referred to in Section 3 above or in the defense of any claim, issue or matter described herein, or
consistent with Section 145(c) of the GCL.



          (b) In the event that Section 9(a) is inapplicable, the Company shall also indemnify the
Indemnitee if he or she has not failed to meet the applicable standard of conduct for
indemnification. In connection with any determination as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to prove by clear and convincing
evidence that Indemnitee is not so entitled.



          (c) The Company’s obligations to indemnify Indemnitee under this Agreement shall be satisfied
fully no later than thirty (30) days following the receipt by the Company of written notice by or
on behalf of Indemnitee that Indemnitee is so entitled.



          (d) In the event that the Company fails to satisfy its obligations within the time frame set
forth in Section 9(c) above, the Indemnitee, in his or her sole discretion, shall be entitled to
select the forum in which determination of whether or not Indemnitee has met the applicable
standard of conduct and such election will be made from among the following:



               (1) Those members of the Board consisting of directors who are not parties to the Proceeding
for which indemnification is being sought, even though less than a quorum;



               (2) The stockholders of the Company;



               (3) Independent legal counsel selected by the Indemnitee and approved by the Board, which
approval may not be unreasonably withheld, which counsel shall make such determination in a written
opinion; or



               (4) In the event that Indemnitee is neither an officer nor a director of the Company at the
time that Indemnitee is selecting the forum, a panel of three arbitrators, one of whom is selected
by the



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Company, another of whom is selected by the Indemnitee and the last of whom is selected by
the first two arbitrators so selected.



The selected forum shall be referred to herein as the “Reviewing Party”.




          (e) As soon as practicable, and in no event later than thirty (30) days after receipt by the
Company of written notice of the Indemnitee’s choice of forum pursuant to Section 9(d) above, the
Company and Indemnitee shall each submit to the Reviewing Party such information as they believe is
appropriate for the Reviewing Party to consider. The Reviewing Party shall arrive at its decision
within a reasonable period of time following the receipt of all such information from the Company
and Indemnitee, but in no event later than sixty (60) days following the receipt of all such
information. Notwithstanding the foregoing, if additional information is requested by the
Reviewing Party in order to be able to make a more informed decision, the Reviewing Party shall
arrive at its decision within a reasonable period of time following the receipt of such additional
information, but in no event later than thirty (30) days following the receipt of such additional
information. All Expenses associated with the process set forth in this Section 9(e), including
but not limited to the Expenses of the Reviewing Party, shall be paid by the Company.



          (f) In the event that a determination is not made within the time prescribed in Section 9(e),
the requisite determination of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be absolutely entitled to such indemnification, absent (i) misrepresentation by
Indemnitee of a material fact in the request for indemnification or (ii) a final judicial
determination that all or any part of such indemnification is expressly prohibited by law.



          (g) Notwithstanding a determination by any Reviewing Party listed in Section 9(d) hereof that
Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee
shall have the right to apply to the Court of Chancery, the court in which that Proceeding is or
was pending, or any other court of competent jurisdiction, for the purpose of enforcing the
Indemnitee’s right to indemnification pursuant to the Agreement.



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          (h) To the extent deemed appropriate by the court or the Reviewing Party, interest shall be
paid by the Company at a reasonable interest rate (which shall generally be at the interest rate
that the Company is then paying or would have to pay for unsecured loans) for amounts that the
Company indemnifies or is obliged to indemnify the Indemnitee for the period commencing with the
date on which Indemnitee requested indemnification (or advancement of Expenses) and ending with the
date on which such payment is made to Indemnitee by the Company.



          (i) The Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee
in connection with any hearing or Proceeding under this Section 9 involving the Indemnitee and
against all Expenses and Other Liabilities incurred by the Indemnitee in connection with any other
Proceeding between the Company and the Indemnitee involving the interpretation or enforcement of
the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds
that each of the material claims and/or defenses of
the Indemnitee in any such Proceeding was frivolous or made in bad faith or it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company under
the provisions of this Agreement, the Company’s Bylaws or the GCL with respect to the underlying
claim or claims. Such Expenses shall be paid to Indemnitee or directly to a third party designated
by Indemnitee within ten (10) days of a written request by Indemnitee to the Company.



          (j) If a determination is made or deemed to be made pursuant to the terms of this Section 9
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration in the absence of (i) a misrepresentation of a material fact
by Indemnitee or (ii) a final judicial determination that all or any part of such indemnification
is expressly prohibited by law.



          (k) The Company and Indemnitee agree that they shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and enforceable. The Company
and Indemnitee further agree to stipulate in any such court that the Company



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and Indemnitee are
bound by all of the provisions of this Agreement and are precluded from making any assertion to the
contrary.



     10. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement under the following
circumstances:



          (a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to the
Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to (1) Proceedings brought to establish or enforce a
right to indemnification under this Agreement, any other statute or law, as permitted under Section
145, or otherwise, and (2) Proceedings brought to discharge Indemnitee’s fiduciary
responsibilities, whether under ERISA or otherwise, but such indemnification or advancement of
Expenses may be provided by the Company in specific cases if the Board finds it to be appropriate;
or



          (b) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a Proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld or delayed; or



          (c) Prior Payment from Another Source. To indemnify the Indemnitee with respect to
any Expense or Other Liability for which Indemnitee would otherwise be entitled to be indemnified
if and to the extent that Indemnitee has actually received payment with respect to such Expense or
Other Liability (net of costs incurred in collecting such payment) pursuant to this Agreement, any
insurance policy, contract, agreement or otherwise; or



          (d) Undeserved Personal Advantage. To indemnify the Indemnitee under this Agreement
for Other Liabilities from a Proceeding in which a court enters a judgment concluding that the
Indemnitee gained in fact a material personal profit or advantage to which the Indemnitee is not
entitled; or



          (e) 16(b) Actions. To indemnify the Indemnitee on account of any suit in which
judgment is rendered against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of



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securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of l934 and amendments thereto or similar provisions
of any federal, state or local statutory law; or



          (f) Unlawful Indemnification. To indemnify the Indemnitee for Other Liabilities if a
final decision by a court having jurisdiction in the matter shall determine that such
indemnification is prohibited by law. Both the Company and Indemnitee acknowledge that in certain
instances, federal law or applicable public policy may prohibit the Company from indemnifying under
this Agreement or otherwise a person serving the Company or a Subsidiary or Affiliate of the
Company as an Indemnifiable Person; or



          (g) Illegal Acts. To indemnify the Indemnitee on account of any Proceeding in which
either judgment is rendered against Indemnitee or an admission, plea of nolo contendere or an
equivalent thereto is entered by Indemnitee, in either case for violation of any statute,
regulation or other law to which Indemnitee is subject as a result of serving the Company or a
Subsidiary or Affiliate of the Company as an Indemnifiable Person.



     11. Non-exclusivity. The provisions for indemnification and advancement of Expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to acts or omissions in his or her official capacity and to acts or omissions in another capacity
while serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person
and the Indemnitee’s rights hereunder shall continue after the Indemnitee has ceased serving the
Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and shall inure to
the benefit of the heirs, executors and administrators of the Indemnitee.



     12. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs,
executors, administrators or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, a period that may not be



17









 







lengthened for any
reason, and any claim or cause of action of the Company shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such two-year period; provided,
however, that if any shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.



     13. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification and advancement of
Expenses to the Indemnitee to the fullest extent now or hereafter not expressly prohibited by law.



     14. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including, without limitation, all
portions 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 in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions 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 be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give effect to Section 13
hereof.



     15. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) and except as expressly provided herein, no such waiver
shall constitute a continuing waiver.



     16. Successors and Assigns. The terms of this Agreement shall bind, and shall inure
to the benefit of, the successors and assigns of the parties hereto.



     17. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and a receipt
is provided by



18









 







the party to whom such communication is delivered, (ii) if mailed by certified or
registered mail with postage prepaid, return receipt requested, on the signing by the recipient of
an acknowledgement of receipt form accompanying delivery through the U.S. mail, (iii) personal
service by a process server, or (iv) delivery to the recipient’s address by overnight delivery
(e.g., FedEx, UPS or DHL) or other commercial delivery service. Addresses for notice to either
party are as shown on the signature page of this Agreement, or as subsequently modified by written
notice complying with the provisions of this Section 17. Delivery of communications to the Company
with respect to this Agreement shall be sent to the attention of the Company’s General Counsel.



     18. No Presumptions. For purposes of this Agreement, except as otherwise expressly
provided herein, the termination of any claim, action, suit or Proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law or otherwise. In addition,
neither the failure of the Company or a Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual
determination by the Company or a Reviewing Party that Indemnitee has not met such standard of
conduct or did not have such belief, prior to the commencement of Proceedings by Indemnitee to
secure a judicial determination by exercising Indemnitee’s rights under Sections 7 or 9(g) of this
Agreement that Indemnitee should be indemnified under applicable law shall be a defense to
Indemnitee’s claim or create a presumption that Indemnitee has failed to meet any particular
standard of conduct or did not have any particular belief or is not entitled to indemnification
under applicable law or otherwise.



     19. Survival of Rights.



          (a) The rights conferred on Indemnitee by this Agreement shall continue after Indemnitee has
ceased to serve the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person
and shall inure to the benefit of Indemnitee’s heirs, executors and administrators.



19









 





          (b) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken place.



     20. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.



     21. Duration. All agreements and obligations of the Company contained herein shall
continue during the period while Indemnitee is serving the Company or a Subsidiary or Affiliate of
the Company as an Indemnifiable Person and shall continue thereafter so long as the Indemnitee
shall be subject to any possible claim or threatened, pending or completed Proceeding by reason of
the fact that Indemnitee served the Company or a Subsidiary or Affiliate of the Company as an
Indemnifiable Person or otherwise in connection with an Indemnifiable Event. Except to extent
prohibited by the GCL, the Company, on its own behalf and that of its Subsidiaries and Affiliates,
waives any defense to a claim by Indemnitee for indemnification or advancement of Expenses
hereunder that such claim is barred by the running of the statute of limitations.



     22. No Settlements. Neither the Company nor any Subsidiary or Affiliate of the
Company shall enter into a settlement of any Proceeding that might result in the imposition of any
Expense, penalty, limitation or any Other Liability or detriment on Indemnitee, whether
indemnifiable under this Agreement or otherwise, without the written consent of Indemnitee, which
consent to such proposed settlement shall not be unreasonably withheld or delayed.



     23. Contribution in the Event of Joint Liability. Whether or not indemnification is
available to Indemnitee hereunder or otherwise, in respect of any threatened, pending or completed
Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such
Proceeding), the Company shall pay, in the first instance, the entire



20









 







amount of any and all
Expenses and Other Liabilities paid or incurred by Indemnitee in connection with such Proceeding.
The Company may require such Indemnitee to contribute to such payment and the Company hereby may
also seek to enforce any right of contribution it may have against Indemnitee. The Company shall
not enter into any settlement of any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such action, suit or Proceeding) unless such settlement
provides for a full and final release of all claims asserted against Indemnitee.



     24. Security. To the extent requested by Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to Indemnitee for the obligations of
the Company hereunder through an irrevocable bank line of credit, funded trust or other collateral
or by other means. Any such security, once provided to Indemnitee, may not be revoked, released or
otherwise altered to the detriment of Indemnitee with the prior written consent of such Indemnitee.



     25. Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so
elects, to institute Proceedings, either in law or at equity, to obtain damages, to enforce
specific performance, to enjoin such violation, or to obtain any relief or any combination of the
foregoing as Indemnitee may elect to pursue.



     26. Counterparts. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall constitute one and the
same agreement. Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.



     27. Headings. The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction or interpretation thereof.



21









 





     28. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely with Delaware.



     29. Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any Proceeding which arises out of or relates to this Agreement.




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