AGREEMENT
NOW, THEREFORE, in consideration of the Indemnitees service or continued service as a director or officer of the Company, the parties hereto agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) A Change in Control will be deemed to have occurred if, with respect to any particular 24-month
period, the individuals who, at the beginning of such 24-month period, constituted the Board (the Incumbent Board) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the beginning of such 24-month period whose election, or nomination for election by the stockholders of the Company, was
approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest 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) Disinterested Director means a director of the Company who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by the Indemnitee.
(c) Expenses includes, without limitation, expenses incurred in connection with the
defense or settlement of any action, suit, arbitration, alternative dispute resolution mechanism, inquiry, judicial, administrative or legislative hearing, investigation, or any other threatened, pending or completed proceeding, whether brought by
or in the right of the Company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature, attorneys fees, witness fees and expenses, fees and expenses of accountants
and other advisors, retainers and disbursements and advances thereon, the premium, security for, and other costs relating to any bond (including cost bonds, appraisal bonds or their equivalents), and any expenses of establishing a right to
indemnification or advancement under this Agreement, but shall not include the amount of judgments, fines, ERISA excise taxes or penalties actually levied against the Indemnitee, or any amounts paid in settlement by or on behalf of the Indemnitee.
(d) Independent Counsel means a law firm or a member of a law firm that neither is presently nor in the past five years has been
retained to represent (i) the Company or the Indemnitee in any matter material to either such party or (ii) any other party to the Proceeding giving rise to a request for indemnification hereunder. Notwithstanding the foregoing, the term
Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to
determine the Indemnitees right to indemnification under this Agreement.
(e) Proceeding means any action, suit, arbitration,
alternative dispute resolution mechanism, inquiry, judicial, administrative or legislative hearing, investigation, or any other threatened, pending or completed proceeding, whether brought by or in the right of the Company or otherwise, including
any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature, to which the Indemnitee was or is a party or is threatened to be made a party or is otherwise involved in by reason of the fact that the
Indemnitee is or was a director, officer, employee, agent or trustee of the Company or while a director, officer, employee, agent or trustee of the Company is or was serving at the request of the Company as a director, officer, employee, agent or
trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (such status, the Indemnitees Corporate Status), or by reason of
anything done or not done by the Indemnitee in any such capacity, whether or not the Indemnitee is serving in such capacity at the time any expense, liability or loss is incurred for which indemnification or advancement can be provided under this
Agreement.
2. Service by the Indemnitee. The Indemnitee shall serve and/or continue to serve as a director or officer of the Company faithfully
and to the best of the Indemnitees ability so long as the Indemnitee is duly elected or appointed and until such time as the Indemnitees successor is elected and qualified or the Indemnitee is removed as permitted by applicable law or
tenders a resignation in writing.
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