Section 3. *Action or Proceeding*. In addition to the indemnification of Indemnitee providedpursuant to the other provisions hereof, Indemnitee shall be entitled to the indemnification rightsprovided in this Section 3 if he or she is a party or is threatened to be made a party to anythreatened, pending, or completed action, suit, or proceeding, whether civil, criminal,administrative, or investigative in nature, by reason of the fact that he or she is or was aRepresentative or fiduciary of the Company or is or was serving at the request of the Company as aRepresentative or fiduciary of any other entity or by reason of anything done or not done by him orher in such capacity. Pursuant to this Section 3, Indemnitee shall be indemnified against allexpenses (including attorneys’ fees), costs, judgments, penalties, fines, and amounts paid insettlement or litigation actually and reasonably incurred by him or her in connection with suchaction, suit, or proceeding (including, but not limited to, the investigation, defense, or appealthereof), unless such amounts were incurred because Indemnitee breached or failed to perform a dutyowed to the Company and the breach or failure to perform constitutes: (a) a willful failure to deal fairly with the Company or its shareholders inconnection with a matter in which Indemnitee has a material conflict ofinterest;  (b) a violation of criminal law, unless Indemnitee had reasonable cause tobelieve that his or her conduct was lawful or no reasonable cause tobelieve that his or her conduct was unlawful;  (c) a transaction from which Indemnitee derived an improper personal profit; or  (d) willful misconduct.Section 4. *Indemnification for Costs, Charges, and Expenses of Successful Party*.Notwithstanding the other provisions of this Agreement and in addition to the rights toindemnification set forth elsewhere herein, to the extent that Indemnitee has served as a witnesson behalf of the Company or has been successful on the merits or otherwise, including, withoutlimitation, the dismissal of an action, with or without prejudice, or in defense of any action,suit, or proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim, issue, ormatter therein, he or she shall be indemnified against all costs, charges, and expenses (includingattorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf inconnection therewith. This Section shall not be construed to limit or prohibit other rights toindemnification provided herein or by statute that may be available and such other rights shall notbe dependent on the outcome of any action.Section 5. *Partial Indemnification*. In addition to the rights to indemnification set forthelsewhere herein, if Indemnitee is only partially successful in the defense, investigation,settlement, or appeal of any action, suit, investigation, or proceeding described in Section 3 or 4hereof, and as a result, is not entitled under the other provisions of this Agreement toindemnification by the Company for the total amount of the expenses (including attorneys’ fees),costs, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurredby him or her, the Company shall nevertheless indemnify Indemnitee, as a matter of right pursuantto Section 5 hereof, to the extent Indemnitee has been partially successful.
 
2

 
Section 6. *Procedures for Seeking Indemnification*. An Indemnitee who seeks indemnificationhereunder shall make a written request therefor to the Company.(a) Subject to Section 6(b), within sixty days of the Company’s receipt of such request, theCompany shall pay or reimburse Indemnitee for the entire amount incurred by the Indemnity inconnection with the subject proceeding.(b) No indemnification shall be required to be paid by the Company hereunder if, within suchsixty-day period, (i) a disinterested quorum of the Board, by a majority vote thereof, determinesthat the Indemnitee requesting indemnification engaged in misconduct constituting a breach of dutyto the Company or (i) a disinterested quorum cannot be obtained. In such case, the Board shallimmediately authorize by resolution that an Authority, as defined in Section 7, determine whetherthe Indemnitee’s conduct constituted a breach of duty and, therefore, whether indemnificationshould be denied hereunder. If (i) the Board does not authorize an Authority to determine theIndemnitee’s right to indemnification hereunder within such sixty-day period and/or (ii) ifindemnification of the requested amount is paid by the Company, then it shall be conclusivelypresumed for all purposes that a disinterested quorum has affirmatively determined that theIndemnitee did not engage in misconduct constituting a breach of duty and, in the case ofsubsection (i) above (but not subsection (ii)), indemnification by the Company of the requestedamount shall be paid to the Indemnitee immediately.Section 7. *Determination of Entitlement to Indemnification*. If the Board authorizes anAuthority to determine an Indemnitee’s right to indemnification pursuant to Section 6, theIndemnitee requesting indemnification shall have the absolute discretionary authority to select oneof the following as such Authority:(i) An independent legal counsel; provided, that such counsel shall be mutuallyselected by such Indemnitee and by a majority vote of a disinterested quorum of the Boardor, if a disinterested quorum cannot be obtained, then by a majority vote of the Board;(ii) A panel of three arbitrators selected from the panels of arbitrators of theAmerican Arbitration Association in Wisconsin; provided, that (A) one arbitrator shall beselected by such Indemnitee, the second arbitrator shall be selected by a majority vote of adisinterested quorum or, if a disinterested quorum cannot be obtained, then by a majorityvote of the Board, and the third arbitrator shall be selected by the two previously selectedarbitrators, and (B) in all other respects (other than this Article V), such panel shall begoverned by the American Arbitration Association’s then existing Commercial ArbitrationRules; or(iii) A court pursuant to and in accordance with Section 180.0854 of the Statute.In any such determination by the selected Authority, there shall exist a rebuttablepresumption that the Indemnitee’s conduct did not constitute a breach of duty and thatindemnification against the requested amount is required. The burden of rebutting such apresumption by clear and convincing evidence shall be on the Company or such other partyasserting that such indemnification should not be allowed. The Authority shall make itsdetermination within sixty days of being selected and shall submit a written opinion of itsconclusion simultaneously to both the Company and the Indemnitee.
 
3

 
If the Authority determines that indemnification is required hereunder, then the Company shallpay the entire requested amount, including interest thereon at a reasonable rate, as determined bythe Authority, within ten days of receipt of the Authority’s opinion; provided, that, if it isdetermined by the Authority that an Indemnitee is entitled to indemnification against liabilitiesincurred in connection with some claims, issues or matters, but not as to other claims, issues ormatters, involved in the subject Proceeding, then the Company shall be required to pay (as setforth above) only the amount requested as the Authority shall deem appropriate in light of all ofthe circumstances of such Proceeding. The determination by the Authority that indemnification isrequired hereunder shall be binding upon the Company and the Indemnitee, regardless of any priordetermination that the Indemnitee engaged in a Breach of Duty. Any costs or expenses (includingattorneys’ fees) incurred by Indemnitee in connection with his request for indemnificationhereunder shall be borne by the Company. The Company hereby indemnifies and agrees to holdIndemnitee harmless therefrom irrespective of the outcome of the determination of Indemnitee’sentitlement to indemnification.Section 8: *Mandatory Allowance of Expenses*: The Company shall pay or reimburse from time totime, within twenty (20) days after the receipt of the Representative’s written request therefore,the reasonable expenses of the Representative as such expenses are incurred; provided, however, thefollowing conditions are satisfied:(i) The Indemnitee furnishes to the Company an executed written certificate affirminghis or her good faith belief that he or she has not breached or failed to perform his or herduties to the Company; and(ii) The Indemnitee furnishes to the Company an unsecured executed written agreement torepay any advances made hereunder if it is ultimately determined that he or she is notentitled to be indemnified by the Company.If the Indemnitee must repay any previously advanced expenses pursuant to this Section, thensuch Indemnitee shall not be required to pay interest on such amounts.Section 9. *Other Rights to Indemnification*. The indemnification and advancement of expenses(including attorneys’ fees) and costs provided by this Agreement shall not be deemed exclusive ofany other rights to which Indemnitee may now or in the future be entitled under any provision ofthe Bylaws of the Company, Articles of Incorporation of the Company, this Agreement, any vote ofshareholders or disinterested directors, provision of law, or otherwise.Section 10. *Attorneys’ Fees and Other Expenses to Enforce Agreement*. In the event thatIndemnitee is subject to or intervenes in any proceeding in which the validity or enforceability ofthis Agreement is at issue or seeks an adjudication or award in arbitration to enforce his or herrights under, or to recover damages for breach of this Agreement, Indemnitee, if he or she prevailsin whole or in part in such action, shall be entitled to recover form the Company andshall be indemnified by the Company against, any actual expenses for attorneys’ fees anddisbursements reasonably incurred by him or her.
 
4

 
Section 11. *Directors and Officers’ Insurance*. The Company shall, to the extent that theBoard determines it to be economically reasonable, maintain a policy of directors’ and officers’liability insurance, which includes coverage for Indemnitee, on such terms and conditions as may beapproved by the Board.Section 12. *Duration of Agreement*. This Agreement shall continue until and terminate upon thelater of: (i) ten (10) years after Indemnitee has ceased to occupy any of the positions or have anyof the relationships described in this Agreement; and (ii) the final termination of all pending orthreatened actions, suits, proceedings, or investigations with respect to Indemnitee.Section 13. *Severability*. Each section and subsection of this Agreement shall be consideredseparable and if, for any reason, any section or paragraph herein is determined to be invalid andcontrary to any existing or future laws, such invalidity shall not impair or affect those portionsof the Agreement which are valid.Section 14. *Agreement in Counterparts*. This Agreement may be executed in several counterpartsand all so executed shall constitute one agreement, binding on all of the parties hereto,notwithstanding that all of the parties may not be signatories to the same counterpart, providedthat each party is a signatory to at least one counterpart.Section 15. *Captions and References*. Titles or captions contained in this Agreement areinserted only as a matter of convenience and for reference, and in no way define, limit, extend ordescribe the scope of this Agreement or the intent of any provisions hereof.Section 16. *Amendment*. This Agreement may only be amended by a written instrument executed byall of the parties.Section 17. *Notice by Indemnitee*. Indemnitee agrees promptly to notify the Company in writingupon being served with any summons, citation, subpoena, complaint, indictment, information, orother document relating to any matter which may be subject to indemnification covered hereunder,either civil, criminal, or investigative.Section 18. *Notices*. All notices required or permitted to be given hereunder shall be inwriting and shall be deemed to have been given to a party at the earlier of the date (i) whenactually delivered to such party, (ii) when facsimile transmitted to such party to the facsimilenumber indicated for such party below (or to such other facsimile number for a party as such partymay have substituted by notice pursuant to this Section) or (iii) when mailed to such party byregistered or certified U.S. Mail (return receipt requested) or sent by overnight courier,confirmed by receipt, and addressed to such party at the address designated below for such party(or to such other address for such party as such party may have substituted by notice pursuant tothis Section):
 
5

 
   (a) If to the Company: 1240 Deming Way  Madison, WI 53717  Attn: General Counsel   (b) If to Indemnitee:                 or to such other address as may have been furnished to Indemnitee by the Company or to the Companyby Indemnitee, as the case may be.Section 19. *Applicable Law and Construction*. This Agreement and the validity and constructionhereof shall be determined and governed in all respects by the internal laws of the State ofWisconsin. This Agreement shall be construed without regard to any rules of construction regardingthe party responsible for the drafting hereof.Section 20. *Binding Effect and Benefit*. This Agreement shall be binding upon and inure to thebenefit of the Indemnitee and his or her respective heirs, administrators, executors, successors,assigns and legal representatives.IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date firstappearing above.TOMOTHERAPY INCORPORATED  Frederick A. Robertson,