B. The right to indemnification conferred by this Article II Section 8
shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any Proceeding in advance of its final disposition, and the Corporation shall, to the fullest extent permitted by law, promptly
advance expenses (including, without limitation, attorneys fees and disbursements) that are incurred, from time to time, in connection therewith by any such current or former director or officer of the Corporation, subject to the receipt by
the Corporation of an undertaking of such person as required by law.
C. Nothing in this Article II Section 8 shall
restrict or limit the power of the Corporation to indemnify its employees, agents and other persons, to advance expenses (including attorneys fees) on their behalf and to purchase and maintain insurance on behalf of any corporate agent,
including any person who is or was a director, officer, employee or agent of the Corporation, in connection with any Proceeding.
D. The indemnification provided by this Article II Section 8 shall not exclude any other rights to which a person seeking
indemnification may be entitled under the Certificate of Incorporation, By-Laws, agreement, vote of stockholders or otherwise. The indemnification provided by this Article II Section 8 shall continue as
to a person who has ceased to be a director or officer, and shall extend to the estate or personal or legal representative of any deceased director or officer.
E. Any repeal or modification of this Article II Section 8 shall not adversely affect any rights to indemnification and to
the advancement of expenses of a director or officer of the Corporation existing prior to such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Indemnification Agreements
The
Registrant has entered into an Indemnification Agreement with each of its directors (each, a Director). The Indemnification Agreement provides that the Registrant will indemnify the Director against any and all expenses,
judgments, costs, fines and amounts paid in settlement (collectively, Losses), to the fullest extent permitted by law, in connection with any present or future threatened, pending or completed proceeding based upon, arising
from, relating to, or by reason of the Directors status as a director, officer, employee, agent or fiduciary of the Registrant or any other entity the Director serves at the request of the Registrant. In addition, the Registrant will advance,
to the extent not prohibited by law, the expenses incurred by the Director in connection with any proceeding.
No indemnification may be
made to the Director with respect to any proceeding if a final judgment adverse to the Director establishes that the Director engaged in disqualifying conduct. Disqualifying conduct means that the Directors actions or omissions
(i) were in breach of the Directors duty of loyalty to the Registrant and its shareholders, (ii) were not in good faith or involved a knowing violation of law, or (iii) resulted in the receipt by the Director of an improper
personal benefit.
Notwithstanding any other provision in the Indemnification Agreement, the Registrant will not be obligated to make any
indemnity or advance in connection with any claim made against the Director:
(a) for which payment has actually
been made to the Director under any insurance policy, other indemnity provision, contract or agreement;
(b) for
(i) an accounting of profits made from the purchase and sale (or sale and purchase) by the Director of securities of the Registrant that did, in fact, violate Section 16(b) of the Exchange Act or (ii) any reimbursement of the
Registrant by the Director of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Director from the sale of securities of the Registrant, as required in each case under the Exchange Act;
(c) except as otherwise provided in the Indemnification Agreement, in connection with any proceeding initiated by the
Director alone or in concert with others, including any proceeding initiated by the Director against the Registrant or its directors, officers, employees or other Directors, unless (i) the Board of Directors authorized the proceeding prior to
its initiation, or (ii) the Registrant provides the indemnification, in its sole discretion, pursuant to the powers vested in the Registrant under applicable law; or
(d) in the event that the Registrant is advised, in a written opinion of its regular outside legal counsel, that the
Registrants performance of any provision of the Indemnification Agreement would violate Section 13(k) of the Exchange Act.
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