OR A PORTION OF THE
EXPENSES, JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID IN SETTLEMENT ACTUALLY
AND REASONABLY INCURRED BY HIM OR HER OR ON HIS OR HER BEHALF IN CONNECTION WITH
A PROCEEDING OR ANY CLAIM, ISSUE, OR MATTER IN ANY SUCH PROCEEDING BUT NOT,
HOWEVER, FOR ALL OF THE TOTAL AMOUNT THEREOF, THE COMPANY SHALL NEVERTHELESS
INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF TO WHICH INDEMNITEE IS ENTITLED.
MOREOVER, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT
THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN DEFENSE OF ANY
OR ALL CLAIMS, ISSUES OR MATTERS RELATING IN WHOLE OR IN PART TO ANY PROCEEDING
OR IN DEFENSE OF ANY ISSUE OR MATTER THEREIN, INDEMNITEE SHALL BE INDEMNIFIED
AGAINST ALL EXPENSES INCURRED IN CONNECTION THEREWITH.
FOR PURPOSES OF THIS
SECTION 1(C) AND WITHOUT LIMITATION, THE TERMINATION OF ANY CLAIM, ISSUE OR
MATTER IN SUCH PROCEEDING BY DISMISSAL, WITH OR WITHOUT PREJUDICE, WILL BE
DEEMED TO BE A SUCCESSFUL RESULT AS TO SUCH CLAIM, ISSUE OR MATTER.
2.
ADDITIONAL INDEMNITY.
IN ADDITION TO,
AND WITHOUT REGARD TO ANY LIMITATIONS ON, THE INDEMNIFICATION PROVIDED FOR IN
SECTION 1 OF THIS AGREEMENT, THE COMPANY WILL AND HEREBY DOES INDEMNIFY, DEFEND,
AND HOLD HARMLESS INDEMNITEE AGAINST ALL EXPENSES, JUDGMENTS, PENALTIES, FINES,
AND AMOUNTS PAID IN SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY HIM OR HER OR
ON HIS OR HER BEHALF IF, BY REASON OF HIS OR HER CORPORATE STATUS, HE OR SHE IS,
OR IS THREATENED TO BE MADE, A PARTY TO OR PARTICIPANT IN ANY PROCEEDING
(INCLUDING A PROCEEDING BY OR IN THE RIGHT OF THE COMPANY), INCLUDING, WITHOUT
LIMITATION, ALL LIABILITY ARISING OUT OF THE NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR ACTIVE OR PASSIVE WRONGDOING OF INDEMNITEE.
THE ONLY
LIMITATION THAT WILL EXIST UPON THE COMPANY'S OBLIGATIONS PURSUANT TO THIS
AGREEMENT WILL BE THAT THE COMPANY WILL NOT BE OBLIGATED TO MAKE ANY PAYMENT TO
INDEMNITEE THAT IS FINALLY ADJUDGED (UNDER THE PROCEDURES, AND SUBJECT TO THE
PRESUMPTIONS, SET FORTH IN SECTIONS 6 AND 7) TO BE UNLAWFUL.
3.
CONTRIBUTION.
(A)
WHETHER OR NOT THE INDEMNIFICATION PROVIDED
IN SECTIONS 1 AND 2 IS AVAILABLE, IN RESPECT OF ANY THREATENED, PENDING, OR
COMPLETED PROCEEDING IN WHICH THE COMPANY IS JOINTLY LIABLE WITH INDEMNITEE (OR
WOULD BE IF JOINED IN SUCH PROCEEDING), THE COMPANY WILL PAY, IN THE FIRST
INSTANCE, THE ENTIRE AMOUNT OF ANY JUDGMENT OR SETTLEMENT OF SUCH PROCEEDING
WITHOUT REQUIRING INDEMNITEE TO CONTRIBUTE TO SUCH PAYMENT, AND THE COMPANY
HEREBY WAIVES, RELEASES, AND RELINQUISHES ANY RIGHT OF CONTRIBUTION IT MAY HAVE
AGAINST INDEMNITEE.
THE COMPANY WILL NOT ENTER INTO ANY SETTLEMENT OF ANY
PROCEEDING IN WHICH THE COMPANY IS JOINTLY LIABLE WITH INDEMNITEE (OR WOULD BE
IF JOINED IN SUCH PROCEEDING) UNLESS SUCH SETTLEMENT PROVIDES FOR A FULL AND
FINAL RELEASE OF ALL CLAIMS ASSERTED AGAINST INDEMNITEE.
3
(B)
WITHOUT DIMINISHING OR IMPAIRING THE
OBLIGATIONS OF THE COMPANY SET FORTH IN SECTION 3(A), IF, FOR ANY REASON,
INDEMNITEE ELECTS OR IS REQUIRED TO PAY ALL OR ANY