WITHOUT ANY EXPRESS FINDING OF LIABILITY OR
GUILT AGAINST HIM, OR (II) THE EXPIRATION OF A REASONABLE PERIOD OF TIME AFTER
THE MAKING OF ANY CLAIM OR THREAT OF AN ACTION, SUIT OR PROCEEDING WITHOUT THE
INSTITUTION OF THE SAME AND WITHOUT ANY PROMISE OR PAYMENT MADE TO INDUCE A
SETTLEMENT.
D.
INDEMNIFICATION FOR EXPENSES OF A WITNESS.
NOTWITHSTANDING ANY
OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT THAT INDEMNITEE IS, BY REASON
OF THE FACT THAT INDEMNITEE IS OR WAS A DIRECTOR, OFFICER, TRUSTEE, FIDUCIARY,
EMPLOYEE OR AGENT OF THE COMPANY, OR ANY AFFILIATE OF THE COMPANY, BY REASON OF
ANY ACTION OR INACTION ON THE PART OF INDEMNITEE WHILE AN OFFICER OR DIRECTOR OR
BY REASON OF THE FACT THAT INDEMNITEE IS OR WAS SERVING AT THE REQUEST OF THE
COMPANY AS A DIRECTOR, OFFICER, TRUSTEE, FIDUCIARY, EMPLOYEE OR AGENT OF ANOTHER
CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE, A WITNESS IN
ANY THREATENED, PENDING OR
2
COMPLETED ACTION, SUIT OR PROCEEDING, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE OR
INVESTIGATIVE (OTHER THAN AN ACTION BY OR IN THE RIGHT OF THE COMPANY) TO WHICH
INDEMNITEE IS NOT A PARTY, INDEMNITEE SHALL BE INDEMNIFIED AGAINST ALL EXPENSES
ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE OR ON INDEMNITEE'S BEHALF IN
CONNECTION THEREWITH.
2.
EXPENSES AND INDEMNIFICATION PROCEDURE.
A.
ADVANCEMENT OF EXPENSES. THE COMPANY SHALL ADVANCE ALL EXPENSES
INCURRED BY OR ON BEHALF OF INDEMNITEE IN CONNECTION WITH ANY CIVIL OR CRIMINAL
ACTION, SUIT OR PROCEEDING REFERENCED IN SECTION 1(A) OR SECTION 1(B), SUBJECT
TO THE TERMS AND IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THIS SECTION 2.
B.
PRESUMPTIONS REGARDING ADVANCES. FOR PURPOSES OF ANY ADVANCEMENT
HEREUNDER, THE INDEMNITEE SHALL BE DEEMED TO HAVE ACTED (I) IN GOOD FAITH AND IN
A MANNER HE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTEREST OF
THE COMPANY, AND (II) WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEDURE, TO HAVE
HAD NO REASONABLE CAUSE TO BELIEVE HIS CONDUCT WAS UNLAWFUL IF, UNDER EITHER (I)
OR (II), HIS ACTION IS BASED ON THE RECORDS OR BOOKS OF ACCOUNT OF THE COMPANY,
OR THE RECORDS OR BOOKS OF ACCOUNT OF ANOTHER CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST OR OTHER ENTERPRISE (COLLECTIVELY, THE "OTHER ENTERPRISES"),
INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION SUPPLIED TO HIM BY THE
OFFICERS OF THE COMPANY OR OTHER ENTERPRISES IN THE COURSE OF THEIR DUTIES, OR
ON THE ADVICE OF LEGAL COUNSEL FOR THE COMPANY OR OTHER ENTERPRISES OR ON
INFORMATION OR RECORDS GIVEN OR REPORTS MADE TO THE COMPANY OR OTHER ENTERPRISES
BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR BY AN APPRAISER OR OTHER EXPERT
SELECTED WITH REASONABLE CARE BY THE COMPANY OR OTHER ENTERPRISES. INDEMNITEE
HEREBY UNDERTAKES TO REPAY SUCH AMOUNTS ADVANCED ONLY IF, AND TO THE EXTENT
THAT, IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY THE COMPANY AS AUTHORIZED HEREBY.
C.
PROCEDURE FOR OBTAINING ADVANCES. ANY INDEMNIFICATION AND
ADVANCES PROVIDED FOR IN SECTION 1 AND THIS SECTION 2 SHALL