(a)        “Change in Control” means a change in control of the Company after the Effective Date of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after the Effective Date (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 20 percent or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such person attaining such percentage interest; (ii) the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board in office immediately prior to such transaction or event constitute less than a majority of the Board thereafter; or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.

        (b)        “Corporate Position” means the position of a person as a director, officer, employee, agent or fiduciary of the Company or as a director, officer, partner, trustee, employee or agent of any other foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, whether for profit or not, which such person is or was serving at the request of the Company.

        (c)        “Disinterested Director” means a director of the Company who is not a party, or threatened to be made a party, to the Proceeding in respect of which indemnification is sought by Indemnitee.

        (d)        “Effective Date” means the date of this Agreement.

        (e)        “Expenses” shall include all reasonable attorney fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding.

        (f)        “Independent Counsel” means a law firm, or a member of a law firm, that is (i) experienced in matters of corporation law; (ii) is selected as set forth in Section 9(c) of this Agreement; and (iii) neither presently is, nor in the past five years has been, retained to represent (x) the Company or Indemnitee in any matter material to either such party, or (y) any other party to the Proceeding giving rise to a claim 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 Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

        (g)        “Independent Director” means a director who meets all the following requirements:

        (i)        is elected by the shareholders of the Company;

        (ii)        is designated as an independent director by the Board or the shareholders of the Company;

        (iii)        has at least five years of business, legal or financial experience or other equivalent experience as a senior executive, director, or attorney for a corporation with securities registered under Section 12 of the Act;

        (iv)        is not and during the three years prior to being designated as an independent director has not been any of the following:

        x)        an officer or employee of the Company or any affiliate of the Company;

        y)        engaged in any business transaction for profit or series of transactions for profit, including banking, legal or consulting services, involving more than $10,000 with the Company or any affiliate of the Company; or

        z)        an affiliate, executive officer, general partner or member of the immediate family of any person that had the status or engaged in a transaction described in subparagraphs x) or y);

        (v)        does not propose to enter into a relationship or transaction described in subdivision (iv) x) through z); and

        (vi)        does not have an aggregate of more than three years of service as a director of the Company, whether or not as an independent director.

        (h)        “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, except one initiated by an Indemnitee pursuant to Section 11 of this Agreement to enforce his rights under this Agreement.

        (a)        To obtain indemnification, including advancement of Expenses pursuant to Section 8, under this Agreement, Indemnitee shall submit to the Company a written request, including such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification.

        (b)        Upon written request by Indemnitee for indemnification pursuant to Section 9(a) hereof, unless such indemnification was ordered by a court of competent jurisdiction, a determination, with respect to Indemnitee’s entitlement thereto, including whether he has met the applicable standards of conduct set forth herein, if any, and whether Expenses and amounts paid in settlement were reasonable, shall be made in each specific case:

        (i)        if a Change in Control shall have occurred, the determination shall be made by Independent Counsel, provided that the Indemnitee shall have the right to direct that such determination be made by the Board or the stockholders, in which case it shall so be made in the manner provided in the following subparagraph (ii);

        (ii)        if a Change in Control shall not have occurred, the determination shall be made (A) by the Board by a majority vote of a quorum consisting of Disinterested Directors, or (B) if a quorum of Disinterested Directors is not obtainable by majority vote of a committee consisting solely of two or more Disinterested Directors duly appointed by the Board, or (C) by Independent Counsel, or (D) by the stockholders of the Company, but shares held by directors, officers, employees, or agents who are parties or threatened to be made parties to the Proceeding may not be voted, or (E) by unanimous vote of all Disinterested Directors who are Independent Directors.

        (c)        If the determination of entitlement to indemnification is to be made by Independent Counsel, the Independent Counsel shall be selected (i) by the Board by a majority vote of a quorum consisting of Disinterested Directors, or (ii) if a quorum of Disinterested Directors is not obtainable by majority vote of a committee consisting solely of two or more Disinterested Directors duly appointed by the Board, or (iii) if a quorum of the Board cannot be obtained under (i) and a committee cannot be designated under (ii), by the Board; The Company shall advise the Indemnitee in writing of the identity of the Independent Counsel so selected. The Company shall pay any and all reasonable fees and expenses incurred by such Independent Counsel and otherwise incident to the procedures of this Section 9.

        (d)        In the designation of a committee pursuant to Sections 1(f)(ii)(y) or 9(b)(ii)(B) above, or in the selection of Independent Counsel pursuant to the provisions of Section 9(c)(iii), all directors on the Board may participate.

        (a)        If a Change in Control shall have occurred, the person or persons making a determination with respect to entitlement to indemnification shall presume that Indemnitee is entitled to indemnification under this Agreement, and the Company shall have the burden of proof to overcome that presumption.

        (b)        If the person or persons empowered or selected to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after being selected or empowered to do so (or within ninety [90] days thereafter, if such determination is to be made by the stockholders), the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, unless such indemnification is prohibited under applicable law.

        (c)        The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee of indemnification or create a presumption that Indemnitee did not act in good faith and in manner which he reasonably believed to be in or not opposed to the best interests of the Company or its shareholders or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

        (a)        The Indemnitee shall be entitled to an adjudication of his right to indemnification or to the advancement of Expenses. Such adjudication shall take place either, at Indemnitee’s option, by any court of competent jurisdiction, or by a single arbitrator in an arbitration conducted pursuant to the rules of the American Arbitration Association. The matters subject to adjudication shall include, without limitation:

        (i)        a determination has been made pursuant to Section 9 that the Indemnitee is not entitled to indemnification;

        (ii)        advancement of Expenses is not timely made pursuant to Section 8;

        (iii)        the determination of his entitlement to indemnification is not timely made pursuant to Section 9; or

        (iv)        payment of indemnification is not timely made pursuant to Section 6 or after a determination has been made that Indemnitee is entitled to indemnification.

        (b)        If a determination shall have been made that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 11 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change in Control shall have occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 11 the Company shall have the burden or proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

        (c)        If a determination shall have been made that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 11, unless such indemnification is prohibited under applicable law.

        (d)        The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 11 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

        (e)        If Indemnitee, pursuant to this Section 11, seeks a judicial adjudication of or an award in arbitration to enforce his rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all expenses (of the types described in the definition of Expenses) actually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in the judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement or expenses sought, the expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated between the Company and the Indemnitee.

        (a)        The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles of Incorporation, the Bylaws, any agreement, a vote of stockholders, a resolution of this Agreement or any provision hereof shall be effective as to any Indemnitee with respect to any action taken or omitted by such Indemnitee in his Corporate Position prior to such amendment, alteration or termination.

        (b)        To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.

        (c)        If the Company makes any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

        (d)        The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise. The total amount of Expenses advanced or indemnified from all sources combined shall not exceed the amount of actual Expenses incurred by the Indemnitee.