CONDUCT WAS
UNLAWFUL.
(B)
PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
IN THE EVENT
INDEMNITEE WAS OR IS A PARTY TO OR OTHER PARTICIPANT IN, OR IS THREATENED TO BE
MADE A PARTY TO OR OTHER PARTICIPANT IN, A PROCEEDING BY OR IN THE RIGHT OF THE
COMPANY OR ANY SUBSIDIARY OF THE COMPANY TO PROCURE A JUDGMENT IN ITS FAVOR BY
REASON OF (OR ARISING IN PART OUT OF ) AN INDEMNIFIABLE EVENT, THE COMPANY SHALL
INDEMNIFY INDEMNITEE FROM AND AGAINST ANY AND ALL EXPENSES, LIABILITIES, LOSSES,
JUDGMENTS, FINES, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, AMOUNTS PAID IN
SETTLEMENT, ANY INTEREST, ASSESSMENTS OR OTHER CHARGES IMPOSED THEREON AND ANY
FEDERAL, STATE, LOCAL OR FOREIGN TAXES IMPOSED AS A RESULT OF THE ACTUAL OR
DEEMED RECEIPT OF ANY PAYMENTS UNDER THIS AGREEMENT, IN EACH CASE TO THE EXTENT
ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN CONNECTION WITH THE DEFENSE OR
SETTLEMENT OF SUCH PROCEEDING IF INDEMNITEE ACTED IN GOOD FAITH AND IN A MANNER
INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF
THE COMPANY; PROVIDED, HOWEVER, THAT NO INDEMNIFICATION SHALL BE MADE IN RESPECT
OF ANY CLAIM, ISSUE OR MATTER AS TO WHICH INDEMNITEE SHALL HAVE BEEN ADJUDGED TO
BE LIABLE TO THE COMPANY IN THE PERFORMANCE OF INDEMNITEE'S DUTY TO THE COMPANY
UNLESS AND ONLY TO THE EXTENT THAT THE COURT IN WHICH SUCH PROCEEDING IS OR WAS
BROUGHT SHALL DETERMINE UPON APPLICATION THAT, DESPITE THE ADJUDICATION OF
LIABILITY BUT IN VIEW OF ALL THE CIRCUMSTANCES OF THE CASE, INDEMNITEE IS FAIRLY
AND REASONABLY ENTITLED TO INDEMNITY FOR SUCH EXPENSES WHICH THAT THE COURT
SHALL DEEM PROPER.
2.
ADVANCEMENT OF EXPENSES; INDEMNIFICATION PROCEDURE.
(A)
ADVANCEMENT OF EXPENSES.
THE COMPANY SHALL ADVANCE ALL EXPENSES
INCURRED BY INDEMNITEE IN CONNECTION WITH THE INVESTIGATION, PREPARATION FOR,
DEFENSE, SETTLEMENT OR APPEAL OF ANY PROCEEDING REFERENCED IN SECTION 1(A) OR
(B) HEREOF (BUT NOT AMOUNTS ACTUALLY PAID IN SETTLEMENT OF ANY SUCH PROCEEDING).
INDEMNITEE HEREBY UNDERTAKES TO REPAY SUCH AMOUNTS ADVANCED ONLY IF, AND TO THE
EXTENT THAT, IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE IS NOT ENTITLED
TO BE INDEMNIFIED BY THE COMPANY AS AUTHORIZED HEREBY OR ELSEWHERE.
THE
ADVANCES TO BE MADE HEREUNDER SHALL BE PAID BY THE COMPANY TO INDEMNITEE WITHIN
TEN (10) DAYS FOLLOWING DELIVERY OF A WRITTEN REQUEST THEREFOR BY INDEMNITEE TO
THE COMPANY AND SHALL BE MADE WITHOUT REGARD TO INDEMNITEE'S ABILITY TO REPAY
THE EXPENSES AND WITHOUT REGARD TO INDEMNITEE'S ULTIMATE ENTITLEMENT TO
INDEMNIFICATION UNDER THE PROVISIONS OF THIS AGREEMENT.
WRITTEN REQUESTS OF
INDEMNITEE FOR ADVANCES SHALL PROVIDE REASONABLE ACCOUNTING FOR THE EXPENSES TO
2
BE PAID BY THE COMPANY.
ADVANCES SHALL INCLUDE ANY AND ALL REASONABLE EXPENSES
INCURRED PURSUING AN ACTION TO ENFORCE THIS RIGHT OF ADVANCEMENT.
INDEMNITEE'S
OBLIGATION TO REIMBURSE THE COMPANY FOR ADVANCES SHALL BE UNSECURED AND NO
INTEREST SHALL BE CHARGED THEREON.
(B)
NOTICE/COOPERATION BY INDEMNITEE.
INDEMNITEE SHALL GIVE THE COMPANY NOTICE IN WRITING AS SOON AS PRACTICABLE OF
ANY CLAIM MADE