THE COMPANY AND ANY NEW DIRECTOR WHOSE
ELECTION BY THE BOARD OF DIRECTORS OR NOMINATION FOR ELECTION BY THE COMPANY'S
STOCKHOLDERS WAS APPROVED BY A VOTE OF AT LEAST TWO-THIRDS (2/3) OF THE
DIRECTORS THEN STILL IN OFFICE WHO EITHER WERE DIRECTORS AT THE BEGINNING OF THE
PERIOD OR WHOSE ELECTION OR NOMINATION FOR ELECTION WAS PREVIOUSLY SO APPROVED,
CEASE FOR ANY REASON TO CONSTITUTE A MAJORITY THEREOF, OR (III) THE STOCKHOLDERS
OF THE COMPANY APPROVE A MERGER OR CONSOLIDATION OF THE COMPANY WITH ANY OTHER
CORPORATION OR ENTITY, OTHER THAN A MERGER OR CONSOLIDATION THAT WOULD RESULT IN
THE VOTING SECURITIES OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR THERETO
CONTINUING TO REPRESENT (EITHER BY REMAINING OUTSTANDING OR BY BEING CONVERTED
INTO VOTING SECURITIES OF THE SURVIVING ENTITY) AT LEAST 80% OF THE TOTAL VOTING
POWER REPRESENTED BY THE VOTING SECURITIES OF THE COMPANY OR SUCH SURVIVING
ENTITY OUTSTANDING IMMEDIATELY AFTER SUCH MERGER OR CONSOLIDATION, OR THE
STOCKHOLDERS OF THE COMPANY APPROVE A PLAN OF COMPLETE LIQUIDATION OF THE
COMPANY OR AN AGREEMENT FOR THE SALE OR DISPOSITION BY THE COMPANY, IN ONE
TRANSACTION OR A SERIES OF TRANSACTIONS, OF ALL OR SUBSTANTIALLY ALL THE
COMPANY'S ASSETS.
(B)
"PROCEEDING" SHALL MEAN ANY COMPLETED,
ACTUAL, PENDING OR THREATENED ACTION, SUIT, CLAIM, INQUIRY OR PROCEEDING,
WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE (INCLUDING AN ACTION BY
OR IN THE RIGHT OF THE COMPANY) AND WHETHER FORMAL OR INFORMAL.
(C)
"EXPENSES" MEANS ALL DIRECT AND INDIRECT
COSTS OF ANY TYPE OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL
ATTORNEYS' FEES AND RELATED DISBURSEMENTS AND OTHER OUT-OF- POCKET COSTS)
ACTUALLY AND REASONABLY INCURRED BY THE INDEMNITEE IN CONNECTION WITH THE
INVESTIGATION, DEFENSE OR APPEAL OF OR BEING A WITNESS IN, PARTICIPATING IN OR
PREPARING TO DEFEND A PROCEEDING OR ESTABLISHING OR ENFORCING A RIGHT TO (I)
INDEMNIFICATION OR ADVANCEMENT OF EXPENSES UNDER THIS AGREEMENT, THE CERTIFICATE
OF INCORPORATION, THE BY-LAWS, THE DGCL OR OTHERWISE OR (II) DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE COVERAGE; PROVIDED, HOWEVER, THAT EXPENSES SHALL
NOT INCLUDE ANY JUDGMENTS, FINES OR PENALTIES OR AMOUNTS PAID IN SETTLEMENT OF A
PROCEEDING.
(D)
"INDEMNIFIABLE EVENT" IS ANY EVENT OR
OCCURRENCE RELATED TO THE FACT THAT INDEMNITEE IS OR WAS A DIRECTOR OR OFFICER
OF THE COMPANY, OR IS OR WAS SERVING AT THE REQUEST OF THE COMPANY AS A
DIRECTOR, OFFICER, EMPLOYEE, TRUSTEE OR AGENT OF ANOTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE, TRUST, NONPROFIT ENTITY OR OTHER ENTITY (INCLUDING
SERVICE WITH RESPECT TO EMPLOYEE BENEFIT PLANS), OR BY REASON OF ANYTHING DONE
OR NOT DONE BY INDEMNITEE IN ANY SUCH CAPACITY.
(E)
"INDEMNIFICATION PERIOD" SHALL BE SUCH
PERIOD AS THE INDEMNITEE SHALL CONTINUE TO SERVE AS A DIRECTOR OR OFFICER OF THE
COMPANY, OR SHALL CONTINUE AT THE REQUEST OF THE COMPANY TO SERVE AS A DIRECTOR,
OFFICER, EMPLOYEE, TRUSTEE OR AGENT OF ANOTHER CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST, NONPROFIT ENTITY OR OTHER ENTITY, AND THEREAFTER SO LONG AS THE
INDEMNITEE SHALL BE SUBJECT TO ANY POSSIBLE PROCEEDING ARISING OUT OF THE
INDEMNITEE'S TENURE IN THE FOREGOING POSITIONS.