which any person may have or hereafter acquire under the Certificate of Incorporation, these Amended and Restated Bylaws, or any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
Section 6.6 Indemnification Following a Change of Control. Notwithstanding any other provision contained herein,
if the Corporation shall be subject to a Change of Control (as hereinafter defined), the additional provisions of this Section 6.6 shall apply.
A. In the event that the Corporation denies a claimants entitlement to indemnification and, within two years prior to the
date of the commencement of the proceeding for which indemnification is claimed, a Change of Control shall have occurred, then the claimant shall have the right to select an Independent Counsel (as hereinafter defined) to make the determination with
respect to such claimants entitlement to indemnification, such decision to be binding upon the Corporation unless the Independent Counsel so selected does not meet the requirements of Independent Counsel as defined in this
Section 6.6.
B. If, following a Change of Control, any judicial proceeding is commenced to challenge a determination
that a claimant is not entitled to indemnification or that expenses or claims have not been timely paid in full by the Corporation, then the Corporation shall have the burden of proving that the claimant is not entitled to indemnification and/or the
reimbursement of such expenses or claims.
C. If, following a Change of Control, the person, persons or entity empowered or
selected under this Article VI to determine whether the claimant is entitled to indemnification shall not have made a determination within ninety (90) days after receipt by the Corporation of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and the claimant shall be entitled to such indemnification, absent (i) a misstatement by the claimant of a material fact, or an omission of a material fact necessary to make the
claimants statement(s) not materially misleading, in connection with the request for indemnification or (ii) a prohibition of such indemnification under applicable law.
D. For the purposes of this Article VI:
Change of Control shall mean:
(1) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act (a Person)), directly or indirectly, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares
of common stock of the Corporation (the Outstanding Corporation Common Stock) or (ii) the Voting Stock; provided, however, that for purposes of this part (1), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Corporation or any acquisition from other stockholders where
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