ARTICLE IXINDEMNIFICATION
9.1 |
INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
The corporation shall indemnify and hold harmless, to the fullest extent permitted by the Delaware General Corporation Law (DGCL)
as it presently exists or may hereafter be amended, any current or former director or officer of the corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a Proceeding) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with
respect to employee benefit plans (an indemnitee), against all liability and loss suffered and expenses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred by such person in connection with any such Proceeding. Notwithstanding the previous sentence, the corporation shall be required to indemnify an indemnitee in connection with a Proceeding (or part thereof) initiated by such person only if
the Proceeding (or part thereof) was authorized by the Board, except as provided in Section 9.4 of this Article IX with respect to proceedings to enforce rights to advancement or indemnification.
9.2 |
INDEMNIFICATION OF OTHERS. |
The corporation shall have the power to indemnify and hold harmless, to the extent permitted by applicable law as it presently exists or may
hereafter be amended, any employee or agent of the corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was an employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding.
9.3 |
PREPAYMENT OF EXPENSES. |
The corporation shall pay the expenses incurred by an indemnitee, and may pay the expenses incurred by any current or former employee or agent
of the corporation, in defending any Proceeding in advance of its final disposition; provided, however, that the payment of expenses incurred by a person in advance of the final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the person to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right of appeal that the person is not entitled to be indemnified under this Article IX or
otherwise.
9.4 |
DETERMINATION; CLAIM. |
If a claim for indemnification or payment of expenses under this Article IX is not paid to an indemnitee in full within sixty (60) days
after a written claim therefor has been received by the corporation, the indemnitee may file suit to recover the unpaid amount of such claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit
brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard for indemnification set forth
in the DGCL. In any suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the corporation shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met
any applicable standard for indemnification set forth in the DGCL. Neither the failure of the corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination by the corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article IX or otherwise shall be on the corporation.