BY A COURT) BE MADE BY THE CORPORATION UNLESS A
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DETERMINATION IS MADE THAT INDEMNIFICATION OF SUCH PERSON IS NOT PROPER IN THE
CIRCUMSTANCES BECAUSE HE OR SHE HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT
SET FORTH IN SECTION 2(B) HEREOF.
ANY SUCH DETERMINATION SHALL BE MADE:
(A)
BY A MAJORITY VOTE OF THE DIRECTORS WHO ARE
NOT PARTIES TO THE PROCEEDING IN QUESTION ("DISINTERESTED DIRECTORS"), EVEN IF
LESS THAN A QUORUM;
(B)
BY A MAJORITY VOTE OF A COMMITTEE OF
DISINTERESTED DIRECTORS DESIGNATED BY MAJORITY VOTE OF DISINTERESTED DIRECTORS,
EVEN IF LESS THAN A QUORUM;
(C)
BY A MAJORITY VOTE OF A QUORUM OF THE
OUTSTANDING SHARES OF STOCK OF ALL CLASSES ENTITLED TO VOTE ON THE MATTER,
VOTING AS A SINGLE CLASS, WHICH QUORUM SHALL CONSIST OF STOCKHOLDERS WHO ARE NOT
AT THAT TIME PARTIES TO THE PROCEEDING IN QUESTION;
(D)
BY INDEPENDENT LEGAL COUNSEL; OR
(E)
BY A COURT OF COMPETENT JURISDICTION.
4.
LIMITATIONS ON ADDITIONAL INDEMNITY.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE CONTRARY, NO INDEMNITY
PURSUANT TO SECTION 2 HEREOF SHALL BE PAID BY THE CORPORATION:
(A)
ON ACCOUNT OF ANY PROCEEDING WITH RESPECT
TO WHICH FINAL JUDGMENT IS RENDERED AGAINST AGENT FOR AN ACCOUNTING OF PROFITS
MADE FROM THE PURCHASE OR SALE BY AGENT OF SECURITIES OF THE CORPORATION
PURSUANT TO THE PROVISIONS OF SECTION 16(B) OF THE SECURITIES EXCHANGE ACT OF
1934 AND AMENDMENTS THERETO OR SIMILAR PROVISIONS OF ANY FEDERAL, STATE OR LOCAL
STATUTORY LAW;
(B)
FOR WHICH PAYMENT IS ACTUALLY MADE TO AGENT
UNDER A VALID AND COLLECTIBLE INSURANCE POLICY OR UNDER A VALID AND ENFORCEABLE
INDEMNITY CLAUSE, BYLAW OR AGREEMENT, EXCEPT IN RESPECT OF ANY EXCESS BEYOND
PAYMENT UNDER SUCH INSURANCE, CLAUSE, BYLAW OR AGREEMENT;
(C)
IF INDEMNIFICATION IS NOT LAWFUL (AND, IN
THIS RESPECT, BOTH THE CORPORATION AND THE AGENT HAVE BEEN ADVISED THAT THE
SECURITIES AND EXCHANGE COMMISSION BELIEVES THAT INDEMNIFICATION FOR LIABILITIES
ARISING UNDER THE FEDERAL SECURITIES LAWS IS AGAINST PUBLIC POLICY AND IS,
THEREFORE, UNENFORCEABLE AND THAT CLAIMS FOR INDEMNIFICATION SHOULD BE SUBMITTED
TO APPROPRIATE COURTS FOR ADJUDICATION); OR
(D)
IN CONNECTION WITH ANY PROCEEDING (OR PART
THEREOF) INITIATED BY AGENT, OR ANY PROCEEDING BY AGENT AGAINST THE CORPORATION
OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR OTHER AGENTS, UNLESS (I) SUCH
INDEMNIFICATION IS EXPRESSLY REQUIRED TO BE MADE BY LAW, (II) THE PROCEEDING WAS
AUTHORIZED BY THE BOARD OF DIRECTORS OF THE CORPORATION, (III) SUCH
INDEMNIFICATION IS PROVIDED BY THE CORPORATION, IN ITS SOLE DISCRETION, PURSUANT
TO THE POWERS VESTED IN THE CORPORATION UNDER THE CODE, OR (IV) THE PROCEEDING
IS INITIATED PURSUANT TO SECTION 10 HEREOF.
5.
CONTINUATION OF INDEMNITY.
ALL
AGREEMENTS AND OBLIGATIONS OF THE CORPORATION CONTAINED HEREIN SHALL CONTINUE
DURING THE PERIOD AGENT IS A DIRECTOR, OFFICER, EMPLOYEE OR OTHER
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AGENT OF THE CORPORATION (OR IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION
AS A DIRECTOR, OFFICER, EMPLOYEE OR OTHER AGENT OF ANOTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN OR OTHER ENTERPRISE)
AND SHALL CONTINUE