OF CHANCERY OF DELAWARE, THE COURT IN WHICH THAT
PROCEEDING IS OR WAS PENDING OR ANY OTHER COURT OF COMPETENT JURISDICTION, FOR
THE PURPOSE OF ENFORCING THE INDEMNITEE'S RIGHT TO INDEMNIFICATION PURSUANT TO
THIS AGREEMENT.
(F)
EXPENSES RELATED TO THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION
IN THIS AGREEMENT TO THE CONTRARY, THE COMPANY SHALL INDEMNIFY THE INDEMNITEE
AGAINST ALL EXPENSES INCURRED BY THE INDEMNITEE IN CONNECTION WITH ANY HEARING
OR PROCEEDING UNDER THIS SECTION 8 INVOLVING THE INDEMNITEE AND AGAINST ALL
EXPENSES INCURRED BY THE INDEMNITEE IN CONNECTION WITH ANY OTHER PROCEEDING
BETWEEN THE COMPANY AND THE INDEMNITEE INVOLVING THE INTERPRETATION OR
ENFORCEMENT (SUBJECT TO SECTION 11) OF THE RIGHTS OF THE INDEMNITEE UNDER THIS
AGREEMENT UNLESS A COURT OF COMPETENT JURISDICTION FINDS THAT EACH OF THE CLAIMS
AND/OR DEFENSES OF THE INDEMNITEE IN ANY SUCH PROCEEDING WAS FRIVOLOUS OR MADE
IN BAD FAITH.
6
9.
EXCEPTIONS.
ANY OTHER PROVISION HEREIN TO THE CONTRARY NOTWITHSTANDING,
THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE TERMS OF THIS AGREEMENT:
(A)
CLAIMS INITIATED BY INDEMNITEE.
TO INDEMNIFY OR ADVANCE EXPENSES TO THE
INDEMNITEE WITH RESPECT TO PROCEEDINGS OR CLAIMS INITIATED OR BROUGHT
VOLUNTARILY BY THE INDEMNITEE AND NOT BY WAY OF DEFENSE, UNLESS (I) SUCH
INDEMNIFICATION IS EXPRESSLY REQUIRED TO BE MADE BY LAW, (II) THE PROCEEDING WAS
AUTHORIZED BY THE BOARD, (III) SUCH INDEMNIFICATION IS PROVIDED BY THE COMPANY,
IN ITS SOLE DISCRETION, PURSUANT TO THE POWERS VESTED IN THE COMPANY UNDER THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE OR (IV) THE PROCEEDING IS
BROUGHT TO ESTABLISH OR ENFORCE A RIGHT TO INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES UNDER THIS AGREEMENT OR ANY OTHER STATUTE OR LAW OR OTHERWISE AS
REQUIRED UNDER SECTION 145;
(B)
LACK OF GOOD FAITH.
TO INDEMNIFY THE INDEMNITEE FOR ANY EXPENSES INCURRED
BY THE INDEMNITEE WITH RESPECT TO ANY PROCEEDING INSTITUTED BY THE INDEMNITEE TO
ENFORCE OR INTERPRET THIS AGREEMENT, IF A COURT OF COMPETENT JURISDICTION
DETERMINES THAT THE MATERIAL ASSERTIONS MADE BY THE INDEMNITEE IN SUCH
PROCEEDING WERE NOT MADE IN GOOD FAITH OR WERE FRIVOLOUS; OR
(C)
UNAUTHORIZED SETTLEMENTS.
TO INDEMNIFY THE INDEMNITEE FOR ANY AMOUNTS
PAID IN SETTLEMENT OF A PROCEEDING UNLESS THE COMPANY CONSENTS TO SUCH
SETTLEMENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
10.
NON-EXCLUSIVITY.
THE PROVISIONS FOR INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES SET FORTH IN THIS AGREEMENT SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER
RIGHTS THAT THE INDEMNITEE MAY HAVE UNDER ANY PROVISION OF LAW, THE COMPANY'S
CERTIFICATE OF INCORPORATION OR BYLAWS AS IN EFFECT FROM TIME TO TIME, THE VOTE
OF THE COMPANY'S STOCKHOLDERS OR DISINTERESTED DIRECTORS, OTHER AGREEMENTS, OR
OTHERWISE, BOTH AS TO ACTION IN INDEMNITEE'S OFFICIAL CAPACITY AND TO ACTION IN
ANOTHER CAPACITY WHILE OCCUPYING INDEMNITEE'S POSITION AS AN AGENT OF THE
COMPANY, AND THE INDEMNITEE'S RIGHTS HEREUNDER SHALL CONTINUE AFTER THE
INDEMNITEE HAS CEASED ACTING AS AN AGENT OF THE COMPANY AND SHALL INURE TO THE
BENEFIT OF THE HEIRS, EXECUTORS AND ADMINISTRATORS OF THE INDEMNITEE.
11.
ENFORCEMENT.
ANY RIGHT TO INDEMNIFICATION OR