PASSIVE.
(C)
THE COMPANY HEREBY AGREES TO FULLY
INDEMNIFY, DEFEND, AND HOLD HARMLESS INDEMNITEE FROM ANY CLAIMS OF CONTRIBUTION
THAT MAY BE BROUGHT BY OFFICERS, DIRECTORS, OR EMPLOYEES OF THE COMPANY, OTHER
THAN INDEMNITEE, WHO MAY BE JOINTLY LIABLE WITH INDEMNITEE.
(D)
TO THE FULLEST EXTENT PERMISSIBLE UNDER
APPLICABLE LAW, IF THE INDEMNIFICATION PROVIDED FOR IN THIS AGREEMENT IS
UNAVAILABLE TO INDEMNITEE FOR ANY REASON WHATSOEVER, THE COMPANY, IN LIEU OF
INDEMNIFYING INDEMNITEE, WILL CONTRIBUTE TO THE AMOUNT INCURRED BY INDEMNITEE,
WHETHER FOR JUDGMENTS, FINES, PENALTIES, EXCISE TAXES, AND AMOUNTS PAID OR TO BE
PAID IN SETTLEMENT OR FOR EXPENSES, IN CONNECTION WITH ANY CLAIM RELATING TO AN
INDEMNIFIABLE EVENT UNDER THIS AGREEMENT, IN SUCH PROPORTION AS IS DEEMED FAIR
AND REASONABLE IN LIGHT OF ALL OF THE CIRCUMSTANCES OF SUCH PROCEEDING IN ORDER
TO REFLECT (I) THE RELATIVE BENEFITS RECEIVED BY THE COMPANY AND INDEMNITEE AS A
RESULT OF THE EVENT(S) OR TRANSACTION(S) GIVING CAUSE TO SUCH PROCEEDING; AND
(II) THE RELATIVE FAULT OF THE COMPANY (AND ITS DIRECTORS, OFFICERS, EMPLOYEES,
AND AGENTS) AND INDEMNITEE IN CONNECTION WITH SUCH EVENT(S) OR TRANSACTION(S).
4
4.
INDEMNIFICATION FOR EXPENSES OF A
WITNESS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT
THAT INDEMNITEE IS, BY REASON OF HIS OR HER CORPORATE STATUS, A WITNESS OR
OTHERWISE INVOLVED IN ANY PROCEEDING TO WHICH INDEMNITEE IS NOT A PARTY, THE
COMPANY WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE INDEMNITEE AGAINST ALL
EXPENSES ACTUALLY AND REASONABLY INCURRED BY HIM OR HER OR ON HIS OR HER BEHALF
IN CONNECTION THEREWITH.
5.
ADVANCEMENT OF EXPENSES.
TO THE
FULLEST EXTENT PERMITTED BY LAW, AS SUCH MAY BE AMENDED FROM TIME TO TIME (BUT
IN THE CASE OF ANY SUCH AMENDMENT, ONLY TO THE EXTENT THAT SUCH AMENDMENT
PERMITS THE COMPANY TO PROVIDE BROADER ADVANCEMENT RIGHTS THAN PERMITTED PRIOR
TO SUCH AMENDMENT), THE COMPANY WILL ADVANCE ALL EXPENSES INCURRED BY OR ON
BEHALF OF INDEMNITEE IN CONNECTION WITH ANY PROCEEDING BY REASON OF INDEMNITEE'S
CORPORATE STATUS WITHIN 30 DAYS AFTER THE RECEIPT BY THE COMPANY OF A STATEMENT
OR STATEMENTS FROM INDEMNITEE REQUESTING SUCH ADVANCE OR ADVANCES FROM TIME TO
TIME, WHETHER PRIOR TO OR AFTER FINAL DISPOSITION OF SUCH PROCEEDING.
SUCH
STATEMENT OR STATEMENTS WILL REASONABLY EVIDENCE THE EXPENSES INCURRED BY
INDEMNITEE AND WILL INCLUDE OR BE PRECEDED OR ACCOMPANIED BY AN UNDERTAKING BY
OR ON BEHALF OF INDEMNITEE TO REPAY ANY EXPENSES ADVANCED IF IT IS ULTIMATELY
DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED AGAINST SUCH
EXPENSES.
ANY ADVANCES AND UNDERTAKINGS TO REPAY PURSUANT TO THIS SECTION 5
WILL BE UNSECURED AND INTEREST-FREE AND ANY ADVANCES WILL BE MADE WITHOUT REGARD
TO INDEMNITEE'S ABILITY TO REPAY THE EXPENSES.
INDEMNITEE WILL QUALIFY FOR AND
BE ENTITLED TO RECEIVE SUCH ADVANCES SOLELY UPON EXECUTION AND DELIVERY TO THE
COMPANY OF THE STATEMENT OR STATEMENTS AND THE UNDERTAKING REFERRED TO IN THIS
SECTION 5.
6.
PROCEDURES AND PRESUMPTIONS FOR
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
IT IS THE INTENT OF THIS
AGREEMENT TO SECURE FOR