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EXHIBIT 5
ARTICLE IX
Indemnification
Section 9.01. Right to Indemnification. The corporation shall to the fullest
extent permitted by applicable law as then in effect indemnify each person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
without limitation, any action, suit or proceeding by, or in the right of, the
corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that he is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including, without limitation, an employee benefit plan) against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such Proceeding.
Such indemnification shall be a contract right and shall include the right to
receive payment in advance of any expenses incurred by the Indemnitee in
connection with such Proceeding, consistent with the provisions of applicable
law as then in effect.
Section 9.01. Insurance, Contracts and Funding. The corporation may purchase
and maintain insurance to protect itself and any Indemnitee against any
expenses, judgments, fines and amount paid in settlement as specified in
Section 9.01 of this Article or incurred by any Indemnitee in connection with
any Proceeding referred to in Section 9.01 of this Article, to the fullest
extent permitted by applicable law as then in effect. The corporation may enter
into contracts with any director or officer of the corporation in furtherance
of the provisions of this Article and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
Section 9.03. Indemnification; Not Exclusive Right. The right of
indemnification provided in this Article shall not be exclusive of any other
rights to which those seeking indemnification may otherwise be entitled, and
the provisions of this Article shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnification under this
Article and shall be applicable to Proceedings commenced or continuing after
the adoption of this Article, whether arising from acts or omissions occurring
before or after such adoption.
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Section 9.04. Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies. In furtherance, but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Article:
(a) Advancement of Expenses. All reasonable expenses incurred by or on behalf
of the Indemnitee in connection with any Proceeding shall be advanced to the
Indemnitee by the corporation within 20 days after the receipt by the
corporation of a statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by the Indemnitee and, if required by law at the
time of such advance, shall include or be accompanied by an undertaking by or
on behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such expenses pursuant to this Article.
(b) Procedure for Determination of Entitlement to Indemnification. (i) To
obtain indemnification under this Article, an Indemnitee shall submit to the
Secretary of the corporation a written request, including such documentation
and information as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of the
Indemnitee's entitlement to indemnification shall be made not later than 60
days after receipt by the corporation of the written request for
indemnification together with the Supporting Documentation. The Secretary of
the corporation shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that the Indemnitee
has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Article shall
be determined in one of the following ways: (a) by a majority vote of the
Disinterested Directors (as hereinafter defined), if they constitute a quorum
of the Board of Directors; (b) by a written opinion of Independent Counsel (as
hereinafter defined) if (x) a Change in Control (as hereinafter defined) shall
have occurred and the Indemnitee so requests or (y) a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or, even if
obtainable, a majority of such Disinterested Directors so directs; (c) by the
stockholders of the corporation (but only if a majority of the Disinterested
Directors, if they constitute a quorum of the Board of Directors, presents the
issue of entitlement to indemnification to the stockholders for their
determination); or (d) as provided in Section 9.04(c).
(iii) In the event the determination of entitlement to indemnification is to be
made by Independent counsel pursuant to Section 904(b)(ii), a majority of the
Disinterested Directors shall select the Independent counsel, but only an
Independent Counsel to which the Indemnitee does not reasonably object,
provided, however, that if a Change of Control shall have occurred, the
Indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Article, the Indemnitee shall be presumed to be
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entitled to indemnification under this Article upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 9.04(b)(i), and thereafter the corporation shall have the burden of
proof to overcome that presumption in reaching a contrary determination. In any
event, if the person or persons empowered under Section 9.04(b) to determine
entitlement to indemnification shall not have been appointed or shall not have
made a determination within 60 days after receipt by the corporation of the
request therefore together with the Supporting Documentation, the Indemnitee
shall be deemed to be entitled to indemnification and the Indemnitee shall be
entitled to such indemnification unless (a) the Indemnitee misrepresented or
failed to disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (b) such indemnification is prohibited by
law. The termination of any Proceeding described in Section 9.01, 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 the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
he reasonable believed to be in or not opposed to the best interest of the
corporation or, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination is made
pursuant to Section 9.04(b) that the Indemnitee is not entitled to
indemnification under this Article, (a) the Indemnitee shall be entitled to
seek an adjudication of his entitlement to such indemnification either, at the
Indemnitee's sole option, in (x) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (y) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (b) any such judicial proceeding or arbitration shall
be de novo and the Indemnitee shall not be prejudiced by reason of such adverse
determination; and (c) in any such judicial proceeding or arbitration the
corporation shall have the burden of proving that the Indemnitee is not
entitled to indemnification under this Article.
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section 9.04(b) or (c), that the Indemnitee is entitled to
indemnification, the corporation shall be obligated to pay the amounts
constituting such indemnification within five days after such determination has
been made or deemed to have been made and shall be conclusively bound by such
determination unless (a) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation or (b) such indemnification is prohibited by law. In the event
that (c) advancement of expenses is not timely made pursuant to Section 9.04(a)
or (d) payment of indemnification is not made within five days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section 9.04(b) or (c), the Indemnitee shall be entitled
to seek judicial enforcement of the corporation's obligation to pay to the
Indemnitee such advancement of expenses or indemnification. Notwithstanding
the foregoing, the corporation may bring an action, in an appropriate court in
the State of Delaware or any other court of competent jurisdiction, contesting
the right of the Indemnitee to receive indemnification hereunder due to the
occurrence of an event described in subclause (a) or (b) of this clause (ii)(a
"disqualifying Event"); provided, however, that in any such action the
corporation shall have the burden of proving the occurrence of such
Disqualifying Event.
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(iii) The corporation shall precluded from asserting in any judicial proceeding
or arbitration commenced pursuant to this Section 9.04(d) that the procedures
and presumptions of this Article are not valid, binding and enforceable and
shall stipulate in any such court or before any such arbitrator that the
corporation is bound by all the provisions of this Article.
(iv) In the event that the Indemnitee, pursuant to this Section 9.04(d), seeks a
judicial adjudication of or an award in arbitration to enforce his rights under,
or to recover damages for breach of, this Article, the Indemnitee shall be
entitled to recover from the corporation, and shall be indemnified by the
corporation against, any expenses actually and reasonably incurred by him if the
Indemnitee prevails in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in connection with such
judicial adjudication or arbitration shall be prorated accordingly.
(e) Definition. For the purposes of this Section 9.04: (i) "Change in Control"
means a change in control of the corporation of a nature that would be required
to be reported in response to Item 6(e) of Section 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 (the "Act"), whether or
not the corporation is then subject to such reporting requirement; provided
that, without limitation, such a change in control shall be deemed to have
occurred if (a) 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 corporation
representing 5 percent or more of the combined voting power of the
corporation's then outstanding securities without the prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such acquisition; (b) the corporation 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 of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (c) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the corporation's stockholders was approved by a
vote of at least a majority 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 of Directors.
(ii) "Disinterested Director" means a director of the corporation who is not or
was not a party to the Proceeding in respect of which indemnification is sought
by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law firm that
neither presently is, nor in the past five years has been, retained to
represent: (i) the corporation or the Indemnitee in any matter material to
either such party or (ii) any other party to the Proceeding giving rise to a
claim for indemnification under this Article. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing under the law of
the State of Delaware, would have a conflict of interest in representing either
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the corporation or the Indemnitee in an action to determine the Indemnitee's
rights under this Article.
Section 9.05. Severability. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article (including, without limitation, all portions of any
paragraph of this Article containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b)
to the fullest extent possible, the provisions of this Article (including,
without limitation, all portions of any paragraph of this Article containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 9.06. Amendment. No provision of this Article shall be amended
retroactively. In no case shall any amendment of this Article occur without
thirty days' advance written notice to all indemnitees.
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