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     D. This Agreement is a supplement to and in furtherance of the Charter and Bylaws of theCompany, and any resolutions adopted pursuant thereto, and shall not be deemed a substitutetherefor, nor to diminish or abrogate any rights of Indemnitee thereunder.     E. Indemnitee does not regard the protection available under the Charter, Bylaws and insuranceas adequate in the present circumstances, and may not be willing to serve, continue to serve andtake on additional service for or on behalf of the Company without adequate protection, and theCompany desires Indemnitee to serve, continue to serve and take on additional service for or onbehalf of the Company. Indemnitee is willing to serve, continue to serve and to take on additionalservice for or on behalf of the Company on the condition that he be so indemnified.     In consideration of the foregoing and the mutual covenants herein contained, and other goodand valuable consideration, the sufficiency and receipt of which are hereby acknowledged, theparties hereby agree as follows:**ARTICLE I****Certain Definitions**     As used herein, the following words and terms shall have the following respective meanings(whether singular or plural):1. The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meaningsset forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on thedate hereof.2. “Change in Control” means the occurrence of any of the following events:     (i) Acquisition of Stock by Third Party. The acquisition after the date of thisAgreement by any Person of Beneficial Ownership of 35% or more of either (x) the then outstandingshares of Common Stock of the Company (the “Outstanding Company Common Stock”), or (y) thecombined voting power of the then outstanding voting securities of the Company entitled to votegenerally in the election of directors (the “Outstanding Company Voting Securities”);provided, however, that for purposes of this Subparagraph (i), the following acquisitions shall notconstitute a Change of Control: (A) any acquisition directly from the Company, (B) any acquisitionby the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored ormaintained by the Company or any corporation controlled by the Company or (D) any acquisition byany corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of paragraph(iii) below;     (ii) Change in Board of Directors. Members of the Incumbent Board cease to constituteat least a majority of the members of the Board;     (iii) Corporate Transactions. Consummation of a reorganization, merger,consolidation, sale or other disposition of all or substantially all of the assets of the Company,or an acquisition of assets of another entity (a “Business Combination”), in each case,unless, following such Business Combination, (A) all or substantially all of the Persons who werethe
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Beneficial Owners, respectively, of the Outstanding Company Common Stock and OutstandingCompany Voting Securities immediately prior to such Business Combination are the Beneficial Ownersof, directly or indirectly, more than 50% of, respectively, the then outstanding shares of commonequity and the combined voting power of the then outstanding Voting Securities, as the case may be,of the entity resulting from such Business Combination (including, without limitation, an entitywhich as a result of such transaction owns the Company or all or substantially all of the Company’sassets either directly or through one or more Subsidiaries) in substantially the same proportionsas their ownership, immediately prior to such Business Combination of the Outstanding CompanyCommon Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person(excluding any employee benefit plan (or related trust) of the Company or the entity resulting fromsuch Business Combination) is the Beneficial Owner, directly or indirectly, of 35% or more of,respectively, the then outstanding shares of common equity of the entity resulting from suchBusiness Combination or the combined voting power of the then outstanding Voting Securities of suchentity, except to the extent that such ownership results solely from ownership of the Company thatexisted prior to the Business Combination, and (C) at least a majority of the members of the boardof directors or other similar governing body of the entity resulting from such Business Combinationwere members of the Incumbent Board at the time of the execution of the initial agreement, or ofthe action of the Board, providing for such Business Combination;     (iv) Liquidation. The approval by the stockholders of the Company of a completeliquidation or dissolution of the Company, or an agreement or series of agreements for the sale ordisposition by the Company of all or substantially all of the Company’s assets (or, if suchapproval is not required, the decision by the Board to proceed with such a liquidation, sale, ordisposition in one transaction or a series of related transactions); or     (v) Other Events. The occurrence of any other event of a nature that would berequired to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in responseto any similar item on any similar schedule or form) promulgated under the Exchange Act, whether ornot the Company is then subject to such reporting requirement.3. “Claim” means an actual or threatened claim or request for relief which was, is or maybe made by reason of anything done or not done by Indemnitee in, or by reason of any event oroccurrence related to, Indemnitee’s Corporate Status.4. “Common Stock” means the Company’s common stock and such other securities as may besubstituted (or resubstituted) for such Common Stock.5. References to the “Company,” in connection with any merger or consolidation, shallinclude not only the resulting or surviving company, but also any constituent company orconstituent of a constituent company, which, if its separate existence had continued, would havehad power and authority to indemnify its directors, officers, employees or agents. The intent ofthis provision is that a person who is or was a director of such constituent company after the datehereof or is or was serving at the request of such constituent company as a director, officer,employee, trustee or agent of another company, partnership, joint venture, trust, employee benefitplan or other Enterprise after the date hereof, shall stand in the same position under this
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Agreement with respect to the resulting or surviving company, as the person would have under thisAgreement with respect to such constituent company if its separate existence had continued.6. “Corporate Status” means the status of a person who is, becomes or was a director,officer, trustee, partner, member, employee, agent, fiduciary or similar functionary of the Companyor is, becomes or was serving at the request of the Company as a director, officer, partner,member, manager, venturer, proprietor, trustee, employee, agent, fiduciary or similar functionaryof another Enterprise. For purposes of this Agreement, the Company agrees that Indemnitee’sservice on behalf of or with respect to any Subsidiary of the Company shall be deemed to be at therequest of the Company.7. “DGCL” means the Delaware General Corporation Law and any successor statute thereto, aseither of them may from time to time be amended.8. “Disinterested Director” with respect to any request by Indemnitee for indemnificationhereunder, means a director of the Company who at the time of the vote is not a party to theProceeding in respect of which indemnification is sought by Indemnitee.9. “Enterprise” shall mean the Company and any other corporation, constituent corporation(including any constituent of a constituent) absorbed in a consolidation or merger to which theCompany (or any of its wholly-owned Subsidiaries) is a party, limited liability company,partnership, joint venture, trust, employee benefit plan, or other enterprise of which Indemniteeis or was serving at the request of the Company as a director, officer, trustee, partner, member,employee, agent, fiduciary or similar functionary.10. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules andregulations promulgated thereunder.11. “Expenses” means all costs, fees and expenses of any type or nature whatsoever,including without limitation, attorneys’ fees and disbursements, retainers, accountant’s fees anddisbursements, private investigator fees and disbursements, court costs, transcript costs, fees andexpenses of experts, witness fees and expenses, travel expenses, duplicating costs, printing andbinding costs, telephone charges, postage, delivery service fees and all other disbursements, costsor expenses of the types customarily incurred in connection with prosecuting, defending (includingaffirmative defenses and counterclaims), preparing to prosecute or defend, investigating, being orpreparing to be a witness in, or participating in or preparing to participate in a settlement orappeal of, or responding or objecting to a discovery request in, a Proceeding, and all interest orfinance charges attributable to any thereof and including reasonable compensation for time spentby the Indemnitee preparing for or participating in such Proceeding for which he or she is nototherwise compensated by the Company or a third party, provided that the rate of compensation andestimated time involved is approved by the Disinterested Directors in their sole discretion, or inthe case of a Potential Change in Control or Change in Control, by Independent Counsel. Expensesalso shall include expenses incurred in connection with any appeal resulting from any Proceeding(as defined below), including without limitation the principal, premium, security for, and othercosts relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount ofjudgments or fines against Indemnitee.
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12. “Incumbent Board” means the individuals who, as of the date of this Agreement,constitute the Board and any other individual who becomes a director of the Company after that dateand whose election or appointment by the Board or nomination for election by the Company’sstockholders was approved by a vote of at least a majority of the directors then comprising theIncumbent Board.13. “Independent Counsel” means a law firm, or a member of a law firm, that is experiencedin matters of corporation law and neither contemporaneously is, nor in the five years theretoforehas been, retained to represent: (a) the Company or Indemnitee in any matter material to eithersuch party (other than as Independent Counsel under this Agreement or similar agreements), (b) anyother party to the Proceeding giving rise to a claim for indemnification hereunder, or (c) theBeneficial Owner, directly or indirectly, of securities of the Company representing 5% or more ofthe combined voting power of the Company’s then outstanding voting securities (other than, in eachsuch case, with respect to matters concerning the rights of Indemnitee under this Agreement, or ofother indemnitees under similar indemnification agreements). Notwithstanding the foregoing, theterm “Independent Counsel” shall not include any person who, under the applicable standardsof professional conduct then prevailing, would have a conflict of interest in representing eitherthe Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.14. “Independent Directors” means the directors on the Board that are independent directorsas defined in Rule 5605(a)(2) of the Nasdaq Manual or successor provision, or, if the Company’scommon stock is not then quoted on the NASDAQ, that qualify as independent, disinterested, or asimilar term as defined in the rules of the principal securities exchange or inter-dealer quotationsystem on which the Company’s common stock is then listed or quoted.15. “NASDAQ” means The NASDAQ Stock Market, LLC.16. “Person” means any individual, entity or group (within the meaning of Sections 13(d)(3)and 14(d)(2) of the Exchange Act).17. “Potential Change in Control” shall be deemed to have occurred if (i) any Person shallhave announced publicly an intention to take actions to effect a Change in Control, or commencedany action (such as the commencement of a tender offer for the Company’s Common Stock or thesolicitation of proxies for the election of any of the Company’s directors) that, if successful,would reasonably be expected to result in the occurrence of a Change in Control; (ii) the Companyenters into an agreement or arrangement, the consummation of which would result in the occurrenceof a Change in Control; (iii) any Person who is or becomes the Beneficial Owner, directly orindirectly, of securities of the Company representing 5% or more of the combined voting power ofthe Company’s then outstanding securities entitled to vote generally in the election of directorsincreases his Beneficial Ownership of such securities by 5% or more over the percentage so owned bysuch Person on the date hereof unless such acquisition was approved in advance by the Board; or(iv) any other event occurs that the Board declares to be a Potential Change of Control.18. “Proceeding” means any threatened, pending or completed action, suit, arbitration,mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
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or any other actual, threatened or completed proceeding, whether brought in the right of theCompany or otherwise, and whether of a civil (including intentional or unintentional tort claims),criminal, administrative, arbitrative, legislative or investigative (formal of informal) nature,including any appeal therefrom in which Indemnitee was, is, will or might be involved as a party,potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was adirector, officer, employee or agent of the Company, by reason of any action (or failure to act)taken by him or of any action (or failure to act) on his part while acting as a director, officer,employee or agent of the Company, or by reason of the fact that he is or was serving at the requestof the Company as a director, officer, partner, member, manager, venturer, proprietor, trustee,employee, agent,, fiduciary or similar functionary of any other Enterprise, in each case whether ornot serving in such capacity at the time any liability or expense is incurred for whichindemnification, reimbursement, or advancement of expenses can be provided under this Agreement.If Indemnitee believes in good faith that a given situation may lead to or culminate in theinstitution of a Proceeding, this situation shall be considered a Proceeding under this paragraph.19. “Subsidiary” means, with respect to any Person, any corporation or other entity ofwhich a majority of the voting power of the voting equity securities or equity interest is owned,directly or indirectly, by that Person.20. “Voting Securities” means any securities that vote generally in the election ofdirectors, in the admission of general partners, or in the selection of any other similar governingbody.**ARTICLE II****Services by Indemnitee**     Indemnitee will serve or continue to serve as an officer or director of the Company for solong as Indemnitee is duly elected or appointed or until Indemnitee tenders his resignation or isterminated by the Company. Indemnitee may from time to time also agree to serve, as the Companymay request from time to time, in another capacity for the Company (including another officer ordirector position) or as a director, officer, partner, member, manager, venturer, proprietor,trustee, employee, agent, fiduciary or similar functionary of another Enterprise. Indemnitee andthe Company each acknowledge that they have entered into this Agreement as a means of inducingIndemnitee to serve, or continue to serve, the Company in such capacities. Indemnitee may at anytime and for any reason resign from such position or positions (subject to any other contractualobligation or any obligation imposed by operation of law). Nothing contained in this Agreementshall be construed as giving Indemnitee any right to be retained in the employment of the Companyor any of its Subsidiaries or affiliated entities.**ARTICLE III****Indemnification**     Section 3.1 General. Subject to the provisions set forth in Article IV, theCompany shall indemnify, and advance Expenses to, Indemnitee to the fullest extent permitted byapplicable law in effect on the date hereof, and to such greater extent as applicable law may
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hereafter from time to time permit. The other provisions set forth in this Agreement areprovided in addition to and as a means of furtherance and implementation of, and not in limitationof, the obligations expressed in this Article III. No requirement, condition to orlimitation of any right to indemnification or to advancement of Expenses pursuant to thisArticle III shall in any way limit the rights of Indemnitee under Article VII.     Section 3.2 Additional Indemnity of the Company. Indemnitee shall be entitled toindemnification pursuant to this Section 3.2 if, by reason of anything done or not done byIndemnitee in, or by reason of any event or occurrence related to, Indemnitee’s Corporate Status,Indemnitee is, was or becomes, or is threatened to be made or is made, a party to, or witness orother participant in, or is asked to respond to discovery requests in, any Proceeding (including aProceeding by or in the right of the Company to procure a judgment in its favor). Pursuant to thisSection 3.2, Indemnitee shall be indemnified against any and all Expenses, judgments,penalties (including excise and similar taxes), fines and amounts paid in settlement (including allinterest, assessments and other charges paid or payable in connection with or in respect of anysuch Expenses, judgments, penalties, fines and amounts paid in settlement) actually and reasonablyincurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any Claim,issue or matter therein. Notwithstanding the foregoing, the obligations of the Company under thisSection 3.2 shall be subject to the condition that no determination (which, in any case inwhich Independent Counsel is involved, shall be in a form of a written opinion) shall have beenmade pursuant to Article IV that Indemnitee would not be permitted to be indemnified underapplicable law. Nothing in this Section 3.2 shall limit the benefits of Section3.1, Section 3.3, or any other Section in this Article III.     Section 3.3 Advancement of Expenses. The Company shall pay all Expenses reasonablyincurred by, or in the case of retainers to be incurred by, or on behalf of Indemnitee (or, ifapplicable, reimburse Indemnitee for any and all Expenses reasonably incurred by Indemnitee andpreviously paid by Indemnitee) in connection with any Claim or Proceeding, whether brought by or inthe right of the Company or otherwise, in advance of any determination respecting entitlement toindemnification pursuant to Article IV hereof (and shall continue to pay such Expensesafter such determination, and until it shall ultimately be determined (in a final adjudication by acourt from which there is no further right of appeal or in a final adjudication of an arbitrationpursuant to Section 5.1 if Indemnitee elects to seek such arbitration) that Indemnitee isnot entitled to be indemnified by the Company against such Expenses) within 10 days after thereceipt by the Company of (a) a written request from Indemnitee requesting such payment or paymentsfrom time to time, whether prior to or after final disposition of such Proceeding, and (b) awritten affirmation from Indemnitee of Indemnitee’s good faith belief that Indemnitee has met thestandard of conduct necessary for Indemnitee to be permitted to be indemnified under applicablelaw. Any such payment by the Company is referred to in this Agreement as an “ExpenseAdvance.” In connection with any request for an Expense Advance, if requested by the Company,Indemnitee or Indemnitee’s counsel shall also submit an affidavit stating that the Expensesincurred were, or in the case of retainers to be incurred are, reasonably incurred. Any dispute asto the reasonableness of the incurrence of any Expense shall not delay an Expense Advance by theCompany, and the Company agrees that any such dispute shall be resolved only upon the dispositionor conclusion of the underlying Claim against Indemnitee. Indemnitee hereby undertakes and agreesthat Indemnitee will reimburse and repay the Company without interest for any Expense Advances tothe extent that it shall ultimately be determined (in
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a final adjudication by a court from which there is no further right of appeal, or in a finaladjudication of an arbitration pursuant to Section 5.1, if Indemnitee elects to seek sucharbitration) that Indemnitee is not entitled to be indemnified by the Company against such Expensesunder the provisions of this Agreement, the Charter, the Bylaws of the Company, applicable law orotherwise. Indemnitee shall not be required to provide collateral or otherwise secure theundertaking and agreement described in the prior sentence. The Company will be entitled toparticipate in the Claim or Proceeding at its own expense.     Section 3.4 Indemnification for Additional Expenses. It is the intent of the Companythat, to the fullest extent permitted by law, Indemnitee not be required to incur legal fees andother costs and expenses (of the types described in the definition of Expenses in ArticleI) associated with the interpretation, enforcement or defense of Indemnitee’s rights under thisAgreement by litigation, arbitration or otherwise because the cost and expense thereof wouldsubstantially detract from the benefits intended to be extended to Indemnitee hereunder. TheCompany shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,shall (within two business days of that request) advance those Expenses to Indemnitee, that areincurred by Indemnitee in connection with any claim asserted against, or action brought by,Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or anyother agreement or provision of the Charter or Bylaws of the Company now or hereafter in effectrelating to any Claim or Proceeding, (ii) recovery under any directors’ and officers’ liabilityinsurance policies maintained by the Company, or (iii) enforcement of, or claims for breaches of,any provision of this Agreement, in each of the foregoing situations, regardless of whetherIndemnitee ultimately is determined to be entitled to that indemnification, Expense Advance,insurance recovery, enforcement, or damage claim, as the case may be, and regardless of whether thenature of the proceeding with respect to such matters is judicial, by arbitration, or otherwise;provided, however, with respect to the foregoing clauses (i), (ii) and (iii), if Indemnitee is notwholly successful on the underlying claims, then such indemnification and advancement shall be onlyto the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law,whichever is greater. To the extent that it is ultimately determined that Indemnitee is not whollysuccessful on the underlying claims, the execution and delivery to the Company of this Agreementshall constitute an undertaking providing that the Indemnitee undertakes to repay, if required bylaw, the amounts advanced (without interest) to the extent the Indemnitee is not successful on suchunderlying claims.     Section 3.5 Partial Indemnity. If Indemnitee is entitled under any provision of thisAgreement to indemnification by the Company for some or a portion of the Expenses, judgments,fines, penalties, and amounts paid in settlement of a Claim or Proceeding but not, however, for allof the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portionthereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of thisAgreement, to the extent that Indemnitee has been successful on the merits or otherwise in defenseof any or all Claims or Proceedings, or in defense of any issue or matter therein, includingdismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred inconnection therewith.
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**ARTICLE IV****Procedure for Determination of Entitlement**