intended to
create in Indemnitee any right to continued employment.
The foregoing
notwithstanding, this Agreement shall continue in force after Indemnitee has
ceased to serve as a director, officer, employee or agent of the Company.
4.
Expenses; Indemnification Procedure.
(A)
ADVANCEMENT OF EXPENSES. THE COMPANY SHALL ADVANCE ALL EXPENSES INCURRED
BY INDEMNITEE IN CONNECTION WITH THE INVESTIGATION, DEFENSE, SETTLEMENT OR
APPEAL OF ANY PROCEEDING REFERRED TO IN SECTION 1 HEREOF (INCLUDING, BUT NOT
LIMITED TO, AMOUNTS ACTUALLY PAID IN SETTLEMENT OF ANY SUCH PROCEEDING AND, TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PAYMENTS TO THE INDEMNITEE (TO THE
EXTENT SUCH INDEMNITEE IS NOT AN EMPLOYEE OF THE COMPANY) OF AN HOURLY FEE OF
$500 PER HOUR FOR EACH HOUR SPENT BY THE INDEMNITEE IN INVESTIGATING, DEFENDING
4
AGAINST, BEING A WITNESS IN, PARTICIPATING IN, OR PREPARING TO DEFEND, BE A
WITNESS IN OR PARTICIPATE IN, ANY SUCH PROCEEDING).
ADVANCES SHALL BE UNSECURED
AND INTEREST FREE.
ADVANCES SHALL BE MADE WITHOUT REGARD TO INDEMNITEE'S
ABILITY TO REPAY THE EXPENSES AND WITHOUT REGARD TO INDEMNITEE'S ULTIMATE
ENTITLEMENT TO INDEMNIFICATION UNDER THE OTHER PROVISIONS OF THIS AGREEMENT.
INDEMNITEE SHALL QUALIFY FOR ADVANCES UPON THE EXECUTION AND DELIVERY TO THE
COMPANY OF THIS AGREEMENT AND INDEMNITEE HEREBY UNDERTAKES TO THE FULLEST EXTENT
REQUIRED BY LAW TO REPAY SUCH AMOUNTS ADVANCED ONLY IF, AND TO THE EXTENT THAT,
IT SHALL ULTIMATELY BE DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A
FINAL JUDGMENT, NOT SUBJECT TO APPEAL, THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY THE COMPANY AS AUTHORIZED HEREBY.
THE RIGHT TO ADVANCES UNDER
THIS PARAGRAPH SHALL IN ALL EVENTS CONTINUE UNTIL FINAL DISPOSITION OF ANY
PROCEEDING, INCLUDING ANY APPEAL THEREIN.
NOTHING IN THIS SECTION 4(A) SHALL
LIMIT INDEMNITEE'S RIGHT TO ADVANCEMENT OF ENFORCEMENT EXPENSES PURSUANT TO
SECTION 4(C).
IN ADDITION, IN THE EVENT THAT A CHANGE OF CONTROL (AS DEFINED BELOW) HAS
OCCURRED, THE COMPANY SHALL, UPON THE REQUEST OF THE INDEMNITEE, DEPOSIT IN AN
ESCROW ACCOUNT WITH A FINANCIAL INSTITUTION REASONABLY SATISFACTORY TO THE
INDEMNITEE AN AMOUNT EQUAL TO THE EXPENSES REASONABLY PROJECTED BY COUNSEL TO
THE INDEMNITEE TO BE INCURRED OVER THE NEXT SIX MONTHS IN CONNECTION WITH
DEFENDING, OR INVESTIGATING OR PREPARING TO DEFEND, ANY PROCEEDING THEN PENDING
WITH RESPECT TO WHICH THE INDEMNITEE IS ENTITLED TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES, AND SHALL, FROM TIME TO TIME UPON REQUEST OF THE
INDEMNITEE REPLENISH THE AMOUNT OF SUCH ESCROW DEPOSIT SO THAT, AFTER THE DATE
OF SUCH ADDITIONAL DEPOSIT, THE AMOUNT OF SUCH ESCROW ACCOUNT IS AT LEAST EQUAL
TO SUCH REASONABLY PROJECTED EXPENSES OVER THE ENSUING SIX MONTH PERIOD. FOR
PURPOSE OF THIS SECTION 4(A), A "CHANGE OF CONTROL" SHALL BE DEEMED TO HAVE
OCCURRED IF (I) ANY "PERSON" (AS SUCH TERM IS USED IN SECTIONS 13(D) AND
14(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"))
(OTHER THAN A TRUSTEE OR OTHER FIDUCIARY HOLDING SECURITIES UNDER AN EMPLOYEE
BENEFIT PLAN OF THE COMPANY OR A CORPORATION OWNED DIRECTLY OR INDIRECTLY BY