REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE
COMPANY; PROVIDED, HOWEVER, IF APPLICABLE LAW SO PROVIDES, NO
2
INDEMNIFICATION AGAINST SUCH EXPENSES WILL BE MADE IN RESPECT OF ANY CLAIM,
ISSUE OR MATTER IN SUCH PROCEEDING AS TO WHICH INDEMNITEE HAS BEEN FINALLY
ADJUDGED TO BE LIABLE TO THE COMPANY UNLESS AND TO THE EXTENT THAT THE COURT OF
CHANCERY OF THE STATE OF DELAWARE DETERMINES THAT SUCH INDEMNIFICATION MAY BE
MADE.
(C)
INDEMNIFICATION FOR EXPENSES OF A PARTY WHO
IS WHOLLY OR PARTLY SUCCESSFUL.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, TO THE EXTENT THAT INDEMNITEE IS, BY REASON OF HIS OR HER CORPORATE
STATUS, A PARTY TO AND IS WHOLLY SUCCESSFUL, ON THE MERITS OR OTHERWISE, IN ANY
PROCEEDING, HE OR SHE WILL BE INDEMNIFIED TO THE FULLEST EXTENT PERMITTED BY
LAW, AS SUCH MAY BE AMENDED FROM TIME TO TIME (BUT IN THE CASE OF ANY SUCH
AMENDMENT, ONLY TO THE EXTENT THAT SUCH AMENDMENT PERMITS THE COMPANY TO PROVIDE
BROADER INDEMNIFICATION RIGHTS THAN PERMITTED PRIOR TO SUCH AMENDMENT), AGAINST
ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY HIM OR HER OR ON HIS OR HER
BEHALF IN CONNECTION WITH SUCH PROCEEDING.
IF INDEMNITEE IS NOT WHOLLY
SUCCESSFUL IN SUCH PROCEEDING BUT IS SUCCESSFUL, ON THE MERITS OR OTHERWISE, AS
TO ONE OR MORE BUT LESS THAN ALL CLAIMS, ISSUES, OR MATTERS IN SUCH PROCEEDING,
THE COMPANY WILL INDEMNIFY INDEMNITEE AGAINST ALL EXPENSES ACTUALLY AND
REASONABLY INCURRED BY HIM OR HER OR ON HIS OR HER BEHALF IN CONNECTION WITH
EACH SUCCESSFULLY RESOLVED CLAIM, ISSUE, OR MATTER.
FOR PURPOSES OF THIS
SECTION 1(C) AND WITHOUT LIMITATION, THE TERMINATION OF ANY CLAIM, ISSUE, OR
MATTER IN SUCH A 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 SOLE, CONTRIBUTORY, COMPARATIVE OR
OTHER NEGLIGENCE, OR ACTIVE OR PASSIVE WRONGDOING OF INDEMNITEE.
EXCEPT AS
PROVIDED IN THIS SECTION 2 OR IN SECTION 9, 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)
REGARDLESS OF WHETHER THE INDEMNIFICATION
PROVIDED IN