OR WERE FRIVOLOUS.
(C)
PARTIAL INDEMNIFICATION.
IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR A PORTION OF
ANY EXPENSES, LOSSES, LIABILITIES, JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID
IN SETTLEMENT INCURRED BY INDEMNITEE, BUT NOT FOR THE TOTAL AMOUNT THEREOF, THE
COMPANY SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR SUCH PORTION.
(D)
NONEXCLUSIVITY.
THE INDEMNIFICATION PROVIDED BY THIS AGREEMENT
SHALL NOT BE DEEMED EXCLUSIVE OF ANY RIGHTS TO WHICH INDEMNITEE MAY BE ENTITLED
UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS, ANY AGREEMENT, ANY
VOTE OF STOCKHOLDERS OR DIRECTORS, THE DGCL, ANY OTHER APPLICABLE LAW OR ANY
LIABILITY INSURANCE POLICY.
(E)
EXCEPTIONS.
ANY OTHER PROVISION HEREIN TO THE CONTRARY
NOTWITHSTANDING, THE COMPANY SHALL NOT BE OBLIGATED UNDER THE AGREEMENT TO
INDEMNIFY INDEMNITEE:
(I)
FOR EXPENSES INCURRED IN CONNECTION WITH PROCEEDINGS INITIATED OR
BROUGHT VOLUNTARILY BY INDEMNITEE AND NOT BY WAY OF DEFENSE, COUNTERCLAIM OR
CROSSCLAIM, EXCEPT (X) AS CONTEMPLATED BY SECTION 3(B), (Y) IN
4
SPECIFIC CASES IF THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE
INITIATION OR BRINGING OF SUCH PROCEEDING, AND (Z) AS MAY BE REQUIRED BY LAW.
(II)
FOR AN ACCOUNTING OF PROFITS ARISING FROM THE PURCHASE AND SALE
BY INDEMNITEE OF SECURITIES WITHIN THE MEANING OF SECTION 16(B) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, OR ANY SIMILAR SUCCESSOR STATUTE.
(F)
SUBROGATION.
IN THE EVENT OF PAYMENT UNDER THIS AGREEMENT, THE
COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS
OF RECOVERY OF INDEMNITEE, WHO SHALL EXECUTE SUCH DOCUMENTS AND DO SUCH ACTS AS
THE COMPANY MAY REASONABLY REQUEST TO SECURE SUCH RIGHTS AND TO ENABLE THE
COMPANY EFFECTIVELY TO BRING SUIT TO ENFORCE SUCH RIGHTS.
(G)
NOTWITHSTANDING SUBPARAGRAPH (F) IMMEDIATELY ABOVE, THE COMPANY
ACKNOWLEDGES AND AGREES THAT INDEMNITEE HAS CERTAIN RIGHTS TO INDEMNIFICATION,
ADVANCEMENT OF EXPENSES AND/OR INSURANCE PROVIDED BY ANOTHER PERSON OR ENTITY
AND CERTAIN OF ITS AFFILIATES INCLUDING THE ENTITIES NAMED ON ANNEX I ATTACHED
HERETO (COLLECTIVELY THE "INDEMNITEE-RELATED ENTITIES") THAT ALSO COVERS
EXPENSES, LOSSES, LIABILITIES, JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID IN
SETTLEMENT (INCLUDING ALL INTEREST, ASSESSMENTS AND OTHER CHARGES IN CONNECTION
THEREWITH) INCURRED BY INDEMNITEE OR ON INDEMNITEE'S BEHALF IN CONNECTION WITH
ANY PROCEEDING IN ANY WAY CONNECTED WITH, RESULTING FROM OR RELATING TO
INDEMNITEE'S CORPORATE STATUS (HEREINAFTER "JOINTLY INDEMNIFIABLE CLAIMS").
THE
COMPANY HEREBY AGREES THAT:
(I) THE COMPANY IS THE INDEMNITOR OF FIRST RESORT, I.E., ITS OBLIGATIONS TO
INDEMNITEE ARE PRIMARY AND ANY OBLIGATION OF THE INDEMNITEE-RELATED ENTITIES ARE
SECONDARY, WITH RESPECT TO JOINTLY INDEMNIFIABLE CLAIMS;
(II) THE COMPANY SHALL BE REQUIRED TO ADVANCE THE FULL AMOUNT OF EXPENSES
INCURRED BY INDEMNITEE AND SHALL BE LIABLE FOR THE FULL AMOUNT OF ALL EXPENSES,
LOSSES, LIABILITIES, JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID IN SETTLEMENT
(INCLUDING ALL INTEREST, ASSESSMENTS AND OTHER CHARGES IN CONNECTION THEREWITH)
TO THE EXTENT PROVIDED HEREIN; AND
(III) THE COMPANY IRREVOCABLY WAIVES, RELINQUISHES AND RELEASES THE
INDEMNITEE-RELATED ENTITIES FROM ANY AND ALL CLAIMS AGAINST THE
INDEMNITEE-RELATED ENTITIES FOR CONTRIBUTION, SUBROGATION OR ANY