ENTER INTO SUCH
AGREEMENTS WITH THE COMPANY'S OFFICERS AND DIRECTORS AS THE COMPANY'S BOARD OF
DIRECTORS DEEMS APPROPRIATE FOR THE INDEMNIFICATION OF SUCH PERSONS AS WELL AS
THE ADVANCEMENT OF EXPENSES IN CONNECTION THEREWITH.
K.
THEREFORE, IN RECOGNITION OF THE NEED TO PROVIDE INDEMNITEE WITH
SUBSTANTIAL PROTECTION AGAINST PERSONAL LIABILITY, IN ORDER TO PROCURE
INDEMNITEE'S CONTINUED SERVICE AS A DIRECTOR AND/OR OFFICER OF THE COMPANY AND
TO ENHANCE INDEMNITEE'S ABILITY TO SERVE THE COMPANY IN AN EFFECTIVE MANNER, AND
IN ORDER TO PROVIDE SUCH PROTECTION PURSUANT TO EXPRESS CONTRACT RIGHTS
(INTENDED TO BE ENFORCEABLE IRRESPECTIVE OF, AMONG OTHER THINGS, ANY AMENDMENT
TO THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS (COLLECTIVELY, THE
"CONSTITUENT DOCUMENTS"), ANY CHANGE IN THE COMPOSITION OF THE COMPANY'S BOARD
OF DIRECTORS (THE "BOARD") OR ANY CHANGE-IN-CONTROL OR BUSINESS COMBINATION
TRANSACTION RELATING TO THE COMPANY), THE COMPANY WISHES TO PROVIDE IN THIS
AGREEMENT FOR THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES TO INDEMNITEE ON
THE TERMS, AND SUBJECT TO THE CONDITIONS, SET FORTH IN THIS AGREEMENT,
L.
IN LIGHT OF THE CONSIDERATIONS REFERRED TO IN THE PRECEDING
RECITALS, IT IS THE COMPANY'S INTENTION AND DESIRE THAT THE PROVISIONS OF THIS
AGREEMENT BE CONSTRUED LIBERALLY, SUBJECT TO THEIR EXPRESS TERMS, TO MAXIMIZE
THE PROTECTIONS TO BE PROVIDED TO INDEMNITEE HEREUNDER.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1.
CERTAIN DEFINITIONS. IN ADDITION TO TERMS DEFINED ELSEWHERE
HEREIN, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS WHEN USED IN THIS
AGREEMENT WITH INITIAL CAPITAL LETTERS:
(A)
"CHANGE IN CONTROL" SHALL HAVE OCCURRED AT SUCH TIME, IF ANY, AS
INCUMBENT DIRECTORS CEASE FOR ANY REASON TO CONSTITUTE A MAJORITY OF DIRECTORS.
FOR PURPOSES OF THIS SECTION 1(A), "INCUMBENT DIRECTORS" MEANS THE INDIVIDUALS
WHO, AS OF THE DATE HEREOF, ARE DIRECTORS OF THE COMPANY AND ANY INDIVIDUAL
BECOMING A DIRECTOR SUBSEQUENT TO THE DATE HEREOF WHOSE ELECTION, NOMINATION FOR
ELECTION BY THE COMPANY'S STOCKHOLDERS, OR APPOINTMENT, WAS APPROVED BY A VOTE
OF AT LEAST A MAJORITY OF THE THEN INCUMBENT DIRECTORS (EITHER BY A SPECIFIC
VOTE OR BY APPROVAL OF THE PROXY STATEMENT OF THE COMPANY IN WHICH SUCH PERSON
IS NAMED AS A NOMINEE FOR DIRECTOR, WITHOUT OBJECTION TO SUCH NOMINATION);
PROVIDED, HOWEVER, THAT AN INDIVIDUAL SHALL NOT BE AN INCUMBENT DIRECTOR IF SUCH
INDIVIDUAL'S ELECTION OR APPOINTMENT TO THE BOARD OCCURS AS A RESULT OF AN
ACTUAL OR THREATENED ELECTION CONTEST (AS DESCRIBED IN RULE 14A-12(C) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) WITH RESPECT TO THE ELECTION OR
REMOVAL OF DIRECTORS OR OTHER ACTUAL OR THREATENED SOLICITATION OF PROXIES OR
CONSENTS BY OR ON BEHALF OF A PERSON OTHER THAN THE BOARD.
(B)
"CLAIM" MEANS (I) ANY THREATENED, ASSERTED, PENDING OR COMPLETED CLAIM,
DEMAND, ACTION, SUIT OR PROCEEDING, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE,
ARBITRATIVE, INVESTIGATIVE OR OTHER, AND WHETHER MADE PURSUANT TO FEDERAL, STATE
OR OTHER LAW; AND (II) ANY INQUIRY OR
2
investigation, whether made, instituted or conducted by the Company or any other
Person, including, without limitation, any federal, state or other governmental
entity, that