Common use of Indemnification and Advancement of Expenses Clause in Contracts

Indemnification and Advancement of Expenses. The Company shall maintain directors and officers liability coverage pursuant to which Executive shall be a covered insured. Executive shall receive indemnification and advancement of expenses in accordance with the Company’s Amended and Restated Bylaws in effect as of the date of this Agreement. Such indemnification shall be contractual in nature and shall remain in effect notwithstanding any future change to the Company’s Amended and Restated Bylaws; provided that, Executive may, but shall not be obligated to, consent in writing to be instead subject to the indemnification and advancement of expenses in any amendment to the Company’s Amended and Restated Bylaws. In the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding (including those brought by or in the right of the Company), whether civil, criminal, administrative or investigative (“proceeding”), by reason of the fact that he is or was an officer, director, employee or agent of or is or was serving the Company or any subsidiary of the Company, or is or was serving at the request of the Company or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith, provided Executive acted within the scope of his employment. Such right shall be a contract right and shall include the right to be paid by the Company for expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to the Company of an undertaking, by or on behalf of Executive, to repay all amounts to the Company so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise.

Indemnification and Advancement of Expenses. The Company (a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall maintain directors indemnify and officers liability coverage pursuant to which Executive shall be a covered insured. Executive shall receive indemnification and advancement of expenses in accordance with the Company’s Amended and Restated Bylaws in effect as of the date of this Agreement. Such indemnification shall be contractual in nature and shall remain in effect notwithstanding any future change to the Company’s Amended and Restated Bylaws; provided that, Executive may, but shall not be obligated to, consent in writing to be instead subject to the indemnification and advancement of expenses in any amendment to the Company’s Amended and Restated Bylaws. In the event that Executive hold harmless each Person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (including those brought by or in the right of the Company)proceeding, whether civil, criminal, administrative or investigative (for purposes of this Section 9.2, a “proceedingProceeding”), ) by reason of the fact that he or she is or was an officer, director, employee a director or agent of or is or was serving the Company or any subsidiary officer of the CompanyCorporation or, while a director or officer of the Corporation, is or was serving at the request of the Company Corporation as a director, member, manager, officer, employee or agent of another corporation, corporation or of a partnership, limited liability company, joint venture, trust trust, other enterprise or other enterprisenonprofit entity, including service with respect to an employee benefit plansplan (an “Indemnitee”), whether the basis of such proceeding Proceeding is alleged action in an official capacity as a director, member, manager, officer, employee or agent agent, or in any other capacity while serving as a director, member, manager, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expensesliability and loss suffered and expenses (including, liabilities and losses (including without limitation, attorneys’ fees, judgments, fines, ERISA Employee Retirement Income Security Act of 1974 excise taxes or and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive such Indemnitee in connection therewith, provided Executive acted within with such Proceeding. The Corporation shall to the scope of his employment. Such right shall be a contract right and shall include fullest extent not prohibited by applicable law pay the right to be paid expenses (including attorneys’ fees) incurred by the Company for expenses incurred an Indemnitee in defending or otherwise participating in any such proceeding Proceeding in advance of its final disposition; provided. Notwithstanding the foregoing, however, that to the extent required by applicable law, such payment of expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will the Proceeding shall be made only upon delivery to the Company receipt of an undertaking, by or on behalf of Executivethe Indemnitee, to repay all amounts to the Company so advanced if it should shall ultimately be determined ultimately that Executive the Indemnitee is not entitled to be indemnified under this section Section 9.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 9.2 shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 9.2(a), except for Proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board. (b) The rights to indemnification and advancement of expenses conferred on any Indemnitee by this Section 9.2 shall not be exclusive of any other rights that any Indemnitee may have or hereafter acquire under law, this Certificate of Incorporation, the Bylaws, insurance, an agreement, vote of stockholders or disinterested directors, or otherwise. (c) Any repeal or amendment of this Section 9.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this Section 9.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision. (d) This Section 9.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to Persons other than Indemnitees. (e) The Corporation shall purchase and maintain insurance (or be named insured on the insurance policy of an affiliate), on behalf of the Indemnitees and such other Persons as the Board shall determine, in its sole discretion, against any liability that may be asserted against, or expense that may be incurred by, such Person in connection with such Person’s activities on behalf of the Corporation, regardless of whether the Corporation would have the power to indemnify such Person against such liability under the provisions of this Certificate of Incorporation.