INDEMNIFICATION BY THE COMPANY FOR SOME OR A
PORTION OF INDEMNIFIABLE COSTS, BUT NOT, HOWEVER, FOR THE TOTAL AMOUNT THEREOF,
THE COMPANY SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF TO
WHICH INDEMNITEE IS ENTITLED.
(C)
ADVANCEMENT OF EXPENSES.
THE COMPANY SHALL ADVANCE TO INDEMNITEE
ANY AND ALL EXPENSES INCURRED BY INDEMNITEE (AN "EXPENSE ADVANCE") WITHIN 5
CALENDAR DAYS AFTER THE RECEIPT BY THE COMPANY OF A WRITTEN REQUEST FROM
INDEMNITEE FOR AN EXPENSE ADVANCE, WHETHER PRIOR TO OR AFTER FINAL DISPOSITION
OF ANY PROCEEDING; PROVIDED, HOWEVER, THAT, IF AND TO THE EXTENT THAT THE DGCL
REQUIRES, AN ADVANCEMENT OF EXPENSES INCURRED BY THE INDEMNITEE IN HIS CAPACITY
AS A DIRECTOR OF THE COMPANY SHALL BE MADE ONLY UPON DELIVERY OF AN UNDERTAKING
BY OR ON BEHALF OF THE INDEMNITEE TO REPAY ALL AMOUNTS SO ADVANCED IF IT
ULTIMATELY SHALL BE DETERMINED BY FINAL JUDICIAL DECISION FROM WHICH THERE IS NO
FURTHER RIGHT TO APPEAL THAT THE INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED
FOR SUCH EXPENSES UNDER THIS AGREEMENT OR OTHERWISE.
INDEMNITEE SHALL, AND
HEREBY UNDERTAKES TO, REPAY TO THE COMPANY ANY FUNDS ADVANCED TO INDEMNITEE OR
PAID ON INDEMNITEE'S BEHALF IF IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE
IS NOT ENTITLED TO INDEMNIFICATION.
INDEMNITEE SHALL MAKE ANY SUCH REPAYMENT
PROMPTLY FOLLOWING WRITTEN NOTICE OF ANY SUCH DETERMINATION.
PAYMENT BY THE
COMPANY OF INDEMNITEE'S EXPENSES IN CONNECTION WITH ANY PROCEEDING IN ADVANCE OF
THE FINAL DISPOSITION THEREOF SHALL NOT BE DEEMED AN ADMISSION BY THE COMPANY
THAT IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION.
ANY REQUEST FOR AN EXPENSE ADVANCE SHALL BE ACCOMPANIED BY AN
ITEMIZATION OF THE EXPENSES FOR WHICH ADVANCEMENT IS SOUGHT, AND A REASONABLY
DETAILED SUMMARY SHALL BE PROVIDED IF THE COMPANY SO REQUESTS.
EXPENSE ADVANCES
SHALL BE MADE WITHOUT REGARD TO INDEMNITEE'S ABILITY TO REPAY THE EXPENSES.
IF
INDEMNITEE HAS COMMENCED LEGAL PROCEEDINGS IN THE CHANCERY COURT OF THE STATE OF
DELAWARE TO SECURE A DETERMINATION THAT INDEMNITEE SHOULD BE INDEMNIFIED UNDER
APPLICABLE LAW, AS PROVIDED IN SECTION 4, ANY DETERMINATION MADE BY THE
REVIEWING PARTY THAT INDEMNITEE WOULD NOT BE PERMITTED TO BE INDEMNIFIED UNDER
APPLICABLE LAW SHALL NOT BE BINDING AND INDEMNITEE SHALL NOT BE REQUIRED TO
REIMBURSE THE COMPANY FOR ANY EXPENSE ADVANCE UNTIL A FINAL JUDICIAL
DETERMINATION IS MADE WITH RESPECT THERETO (AS TO WHICH ALL RIGHTS OF APPEAL
THEREFROM HAVE BEEN EXHAUSTED OR HAVE LAPSED).
INDEMNITEE'S OBLIGATION TO
REIMBURSE THE COMPANY FOR EXPENSE ADVANCES SHALL BE UNSECURED AND NO INTEREST
SHALL BE CHARGED THEREON.
(D)
EXCEPTION TO OBLIGATION TO INDEMNIFY AND ADVANCE EXPENSES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, INDEMNITEE SHALL NOT
BE ENTITLED TO INDEMNIFICATION OR ADVANCEMENT PURSUANT TO THIS AGREEMENT IN
CONNECTION WITH ANY PROCEEDING INITIATED BY INDEMNITEE AGAINST THE COMPANY OR
ANY DIRECTOR OR OFFICER OF THE COMPANY UNLESS (I) THE BOARD OR THE DISINTERESTED
DIRECTORS HAVE AUTHORIZED THE INITIATION OF SUCH PROCEEDING OR (II) THE
PROCEEDING IS ONE TO ENFORCE INDEMNIFICATION RIGHTS UNDER SECTION 5.
3.
REVIEWING PARTY.
(A)
OTHER