AND REMEDY GIVEN
HEREUNDER OR NOW OR HEREAFTER EXISTING AT LAW OR IN EQUITY OR OTHERWISE. THE
ASSERTION OR EMPLOYMENT OF ANY RIGHT OR REMEDY HEREUNDER, OR OTHERWISE, WILL NOT
PREVENT THE CONCURRENT ASSERTION OR EMPLOYMENT OF ANY OTHER RIGHT OR REMEDY.
9.2
SUBROGATION.
IN THE EVENT OF ANY PAYMENT BY THE COMPANY UNDER THIS
AGREEMENT, THE COMPANY WILL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL
OF THE RIGHTS OF RECOVERY OF INDEMNITEE WITH RESPECT THERETO AND INDEMNITEE WILL
EXECUTE ALL PAPERS REQUIRED AND TAKE ALL ACTION NECESSARY TO SECURE SUCH RIGHTS,
INCLUDING EXECUTION OF SUCH DOCUMENTS AS ARE NECESSARY TO ENABLE THE COMPANY TO
BRING SUIT TO ENFORCE SUCH RIGHTS (IT BEING UNDERSTOOD THAT ALL OF INDEMNITEE'S
REASONABLE EXPENSES RELATED THERETO WILL BE BORNE BY THE COMPANY).
9.3
NO DUPLICATIVE PAYMENTS.
THE COMPANY WILL NOT BE LIABLE UNDER THIS
AGREEMENT TO MAKE ANY PAYMENT OF AMOUNTS OTHERWISE INDEMNIFIABLE (OR ANY EXPENSE
FOR WHICH ADVANCEMENT IS PROVIDED) HEREUNDER IF AND TO THE EXTENT THAT
INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED SUCH PAYMENT UNDER ANY INSURANCE
POLICY, CONTRACT, AGREEMENT OR OTHERWISE.
THE
13
Company's obligation to indemnify or advance Expenses hereunder to Indemnitee in
respect of Proceedings relating to Indemnitee's service at the request of the
Company as a director, officer, employee, partner, member, manager, trustee,
fiduciary or agent of any other Enterprise will be reduced by any amount
Indemnitee has actually received as indemnification or advancement of Expenses
from such other Enterprise.
9.4
MORE FAVORABLE TERMS.
IN THE EVENT THE COMPANY ENTERS INTO AN
INDEMNIFICATION AGREEMENT WITH ANOTHER OFFICER OR DIRECTOR, AS THE CASE MAY BE,
CONTAINING TERMS MORE FAVORABLE TO THE INDEMNITEE THEREOF THAN THE TERMS
CONTAINED HEREIN AND ABSENT SPECIAL CIRCUMSTANCES JUSTIFYING SUCH MORE FAVORABLE
TERMS, INDEMNITEE WILL BE AFFORDED THE BENEFIT OF SUCH MORE FAVORABLE TERMS AND
SUCH MORE FAVORABLE TERMS WILL BE DEEMED INCORPORATED BY REFERENCE HEREIN AS IF
SET FORTH IN FULL HEREIN.
AS PROMPTLY AS PRACTICABLE FOLLOWING THE EXECUTION
THEREOF, THE COMPANY WILL (A) SEND A COPY OF THE AGREEMENT CONTAINING MORE
FAVORABLE TERMS TO INDEMNITEE, AND (B) PREPARE, EXECUTE AND DELIVER TO
INDEMNITEE AN AMENDMENT TO THIS AGREEMENT CONTAINING SUCH MORE FAVORABLE TERMS.
ARTICLE 10
DEFENSE OF PROCEEDINGS
10.1
COMPANY ASSUMING THE DEFENSE.
SUBJECT TO SECTION 10.3 BELOW, IN THE
EVENT THE COMPANY IS OBLIGATED TO PAY IN ADVANCE THE EXPENSES OF ANY PROCEEDING
PURSUANT TO ARTICLE 4, THE COMPANY WILL BE ENTITLED, BY WRITTEN NOTICE TO
INDEMNITEE, TO ASSUME THE DEFENSE OF SUCH PROCEEDING, WITH COUNSEL APPROVED BY
INDEMNITEE, WHICH APPROVAL WILL NOT BE UNREASONABLY WITHHELD.
THE COMPANY WILL
IDENTIFY THE COUNSEL IT PROPOSES TO EMPLOY IN CONNECTION WITH SUCH DEFENSE AS
PART OF THE WRITTEN NOTICE SENT TO INDEMNITEE NOTIFYING INDEMNITEE OF THE
COMPANY'S ELECTION TO ASSUME SUCH DEFENSE, AND INDEMNITEE WILL BE REQUIRED,
WITHIN TEN (10) BUSINESS DAYS FOLLOWING INDEMNITEE'S RECEIPT OF SUCH NOTICE, TO
INFORM THE COMPANY OF ITS APPROVAL OF SUCH COUNSEL OR, IF IT HAS OBJECTIONS, THE
REASONS THEREFOR.
IF SUCH OBJECTIONS CANNOT BE