THEREAFTER SO LONG AS AGENT SHALL BE SUBJECT TO ANY POSSIBLE
CLAIM OR THREATENED, PENDING OR COMPLETED ACTION, SUIT OR PROCEEDING, WHETHER
CIVIL, CRIMINAL, ARBITRATION, ADMINISTRATIVE OR INVESTIGATIVE, BY REASON OF THE
FACT THAT AGENT WAS SERVING IN THE CAPACITY REFERRED TO HEREIN.
6.
SUCCESSFUL DEFENSE; PARTIAL
INDEMNIFICATION.
(A)
TO THE EXTENT THAT AGENT HAS BEEN
SUCCESSFUL ON THE MERITS OR OTHERWISE IN DEFENSE OF ANY PROCEEDING REFERRED TO
IN SECTION 2 HEREOF OR IN DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, AGENT
SHALL BE INDEMNIFIED AGAINST EXPENSES (INCLUDING ATTORNEYS' FEES) ACTUALLY AND
REASONABLY INCURRED IN CONNECTION THEREWITH.
FOR PURPOSES OF THIS AGREEMENT AND
WITHOUT LIMITING THE FOREGOING, IF ANY PROCEEDING IS DISPOSED OF, ON THE MERITS
OR OTHERWISE (INCLUDING A DISPOSITION WITHOUT PREJUDICE), WITHOUT:
(I)
THE DISPOSITION BEING ADVERSE TO AGENT;
(II)
AN ADJUDICATION THAT AGENT WAS LIABLE TO THE
CORPORATION;
(III)
A PLEA OF GUILTY OR NOLO CONTENDERE BY AGENT;
(IV)
AN ADJUDICATION THAT AGENT DID NOT ACT IN GOOD
FAITH AND IN A MANNER AGENT REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE
BEST INTERESTS OF THE CORPORATION; AND
(V)
WITH RESPECT TO ANY CRIMINAL PROCEEDING, AN
ADJUDICATION THAT AGENT HAD REASONABLE CAUSE TO BELIEVE AGENT'S CONDUCT WAS
UNLAWFUL,
Agent shall be considered for the purposes hereof to have been wholly successful
with respect thereto.
(B)
IF AGENT IS ENTITLED UNDER ANY PROVISION OF
THIS AGREEMENT TO INDEMNIFICATION BY THE CORPORATION FOR A PORTION OF THE
EXPENSES (INCLUDING ATTORNEYS' FEES), WITNESS FEES, DAMAGES, JUDGMENTS, FINES
AND AMOUNTS PAID IN SETTLEMENT AND ANY OTHER AMOUNTS THAT AGENT BECOMES LEGALLY
OBLIGATED TO PAY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING REFERRED TO
IN SECTION 2 HEREOF EVEN IF NOT ENTITLED HEREUNDER TO INDEMNIFICATION FOR THE
TOTAL AMOUNT THEREOF, AND THE CORPORATION SHALL INDEMNIFY AGENT FOR THE PORTION
THEREOF TO WHICH AGENT IS ENTITLED.
7.
NOTIFICATION AND DEFENSE OF CLAIM.
NOT
LATER THAN THIRTY (30) DAYS AFTER RECEIPT BY AGENT OF NOTICE OF THE COMMENCEMENT
OF ANY ACTION, SUIT OR PROCEEDING, AGENT WILL, IF A CLAIM IN RESPECT THEREOF IS
TO BE MADE AGAINST THE CORPORATION UNDER THIS AGREEMENT, NOTIFY THE CORPORATION
OF THE COMMENCEMENT THEREOF; BUT THE OMISSION SO TO NOTIFY THE CORPORATION WILL
NOT RELIEVE THE CORPORATION FROM ANY LIABILITY WHICH IT MAY HAVE TO AGENT
HEREUNDER, EXCEPT TO THE EXTENT THE CORPORATION IS PREJUDICED IN ITS DEFENSE OF
SUCH PROCEEDING AS A RESULT OF SUCH FAILURE.
WITH RESPECT TO ANY SUCH ACTION,
SUIT OR PROCEEDING AS TO WHICH AGENT NOTIFIES THE CORPORATION OF THE
COMMENCEMENT THEREOF:
4
(A)
THE CORPORATION WILL BE ENTITLED TO
PARTICIPATE THEREIN AT ITS OWN EXPENSE;
(B)
EXCEPT AS OTHERWISE PROVIDED BELOW, THE
CORPORATION MAY, AT ITS OPTION AND JOINTLY WITH ANY OTHER INDEMNIFYING PARTY
SIMILARLY NOTIFIED AND ELECTING TO ASSUME SUCH DEFENSE, ASSUME THE DEFENSE
THEREOF, WITH COUNSEL REASONABLY SATISFACTORY TO AGENT.
AFTER NOTICE FROM THE
CORPORATION TO AGENT OF ITS ELECTION TO ASSUME THE DEFENSE THEREOF, THE
CORPORATION WILL NOT BE LIABLE TO AGENT UNDER THIS