INDEMNITEE FOR THE PORTION
THEREOF TO WHICH INDEMNITEE IS ENTITLED.
NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, TO THE EXTENT THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS
OR OTHERWISE IN DEFENSE OF ANY ISSUE OR MATTER THEREIN, INCLUDING DISMISSAL
WITHOUT PREJUDICE, INDEMNITEE SHALL BE INDEMNIFIED AGAINST ALL EXPENSES INCURRED
IN CONNECTION THEREWITH.
(D)
CONTRIBUTION.
IF THE INDEMNIFICATION
PROVIDED IN SECTION 2(A) FOR ANY REASON IS HELD BY A COURT OF COMPETENT
JURISDICTION TO BE UNAVAILABLE TO THE INDEMNITEE, THEN IN RESPECT OF ANY
INDEMNIFIABLE EVENT, THE COMPANY SHALL CONTRIBUTE TO THE AMOUNT OF EXPENSES AND
LOSSES PAID IN SETTLEMENT ACTUALLY INCURRED AND PAID OR PAYABLE BY THE
INDEMNITEE IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT (I) THE RELATIVE
BENEFITS RECEIVED BY THE COMPANY ON THE ONE HAND AND THE INDEMNITEE ON THE OTHER
HAND FROM THE TRANSACTION FROM WHICH SUCH PROCEEDING
3
AROSE AND (II) THE RELATIVE FAULT OF THE COMPANY ON THE ONE HAND AND OF THE
INDEMNITEE ON THE OTHER HAND IN CONNECTION WITH THE EVENTS WHICH RESULTED IN
SUCH EXPENSES AND LOSSES, AS WELL AS ANY OTHER RELEVANT EQUITABLE
CONSIDERATIONS.
THE RELATIVE FAULT OF THE COMPANY ON THE ONE HAND AND OF THE
INDEMNITEE ON THE OTHER HAND SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER
THINGS, THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND
OPPORTUNITY TO CORRECT OR PREVENT THE CIRCUMSTANCES RESULTING IN SUCH EXPENSES,
JUDGMENTS, FINES OR SETTLEMENT AMOUNTS.
THE COMPANY AGREES THAT IT WOULD NOT BE
JUST AND EQUITABLE IF CONTRIBUTION PURSUANT TO THIS SECTION 2(D) WERE DETERMINED
BY PRO RATA ALLOCATION OR ANY OTHER METHOD OF ALLOCATION WHICH DOES NOT TAKE
ACCOUNT OF THE FOREGOING EQUITABLE CONSIDERATIONS.
(E)
ENFORCEMENT.
IF A CLAIM FOR
INDEMNIFICATION (FOLLOWING THE FINAL DISPOSITION OF SUCH PROCEEDING) UNDER
SECTION 2(A) OR ADVANCEMENT OF EXPENSES UNDER SECTION 2(B) IS NOT PAID IN FULL
WITHIN THIRTY DAYS AFTER A WRITTEN CLAIM THEREFOR BY THE INDEMNITEE HAS BEEN
PRESENTED TO THE COMPANY, THE INDEMNITEE MAY FILE SUIT AGAINST THE COMPANY TO
RECOVER THE UNPAID AMOUNT OF SUCH CLAIM AND, IF SUCCESSFUL IN WHOLE OR IN PART,
SHALL BE ENTITLED TO BE PAID THE EXPENSE OF PROSECUTING SUCH CLAIM.
IN
ADDITION, INDEMNITEE MAY FILE SUIT AGAINST THE COMPANY TO ESTABLISH A RIGHT TO
INDEMNIFICATION OR ADVANCEMENT OF EXPENSES ARISING UNDER THIS AGREEMENT, THE
CERTIFICATE OF INCORPORATION, THE BY-LAWS, THE DGCL OR OTHERWISE.
IN ANY SUCH
ACTION THE COMPANY SHALL HAVE THE BURDEN OF PROVING BY CLEAR AND CONVINCING
EVIDENCE THAT THE INDEMNITEE IS NOT ENTITLED TO THE REQUESTED INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES UNDER APPLICABLE LAW.
3.
NOTIFICATION AND DEFENSE OF
PROCEEDING.
PROMPTLY AFTER RECEIPT BY INDEMNITEE OF NOTICE OF THE COMMENCEMENT
OF OR THREAT OF THE COMMENCEMENT OF ANY PROCEEDING, INDEMNITEE SHALL, IF A
REQUEST FOR INDEMNIFICATION IN RESPECT THEREOF IS TO BE MADE AGAINST THE COMPANY
UNDER THIS AGREEMENT, NOTIFY THE COMPANY OF THE COMMENCEMENT THEREOF; BUT THE
FAILURE TO NOTIFY THE COMPANY WILL NOT RELIEVE THE COMPANY FROM ANY LIABILITY
WHICH IT MAY HAVE TO INDEMNITEE