THAN SUCH DIRECTOR WHO
ARE JOINTLY LIABLE WITH THE DIRECTOR (OR WOULD BE IF JOINED IN SUCH ACTION, SUIT
OR PROCEEDING), ON THE ONE HAND, AND THE DIRECTOR, ON THE OTHER HAND, IN
CONNECTION WITH THE EVENTS THAT RESULTED IN SUCH EXPENSES, JUDGMENTS, FINES OR
SETTLEMENT AMOUNTS, AS WELL AS ANY OTHER EQUITABLE CONSIDERATIONS WHICH THE LAW
MAY REQUIRE TO BE CONSIDERED. THE RELATIVE FAULT OF THE CORPORATION AND ALL
OFFICERS, DIRECTORS OR EMPLOYEES OF THE CORPORATION OTHER THAN THE DIRECTOR WHO
ARE JOINTLY LIABLE WITH HIM (OR WOULD BE IF JOINED IN SUCH ACTION, SUIT OR
PROCEEDING), ON THE ONE HAND, AND THE DIRECTOR, ON THE OTHER HAND, SHALL BE
DETERMINED BY REFERENCE TO, AMONG OTHER THINGS, THE DEGREE TO WHICH THEIR
ACTIONS WERE MOTIVATED BY INTENT TO GAIN PERSONAL PROFIT
4
OR ADVANTAGE, THE DEGREE TO WHICH THEIR LIABILITY IS PRIMARY OR SECONDARY, AND
THE DEGREE TO WHICH THEIR CONDUCT IS ACTIVE OR PASSIVE.
(III)
THE CORPORATION HEREBY AGREES TO FULLY INDEMNIFY AND HOLD EACH DIRECTOR
HARMLESS FROM ANY CLAIMS OF CONTRIBUTION WHICH MAY BE BROUGHT BY OFFICERS,
DIRECTORS OR EMPLOYEES OF THE CORPORATION WHO MAY BE JOINTLY LIABLE WITH SUCH
DIRECTOR.
SECTION 5.
ADVANCEMENT OF EXPENSES AND COSTS. IF A DIRECTOR IS
MADE OR THREATENED TO BE MADE A PARTY TO A PROCEEDING, THE DIRECTOR IS ENTITLED,
UPON WRITTEN REQUEST TO THE CORPORATION, TO PAYMENT OR REIMBURSEMENT BY THE
CORPORATION, WITHIN TEN (10) DAYS OF RECEIPT OF THE REQUEST, OF ALL REASONABLE
EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND DISBURSEMENTS,
INCURRED BY THE DIRECTOR, WHETHER PRIOR TO OR AFTER THE FINAL DISPOSITION OF THE
PROCEEDING. SUCH REQUEST SHALL REASONABLY EVIDENCE THE EXPENSES INCURRED BY THE
DIRECTOR AND SHALL INCLUDE OR BE PRECEDED OR ACCOMPANIED BY AN UNDERTAKING BY OR
ON BEHALF OF SUCH DIRECTOR TO REPAY ANY EXPENSES ADVANCED IF IT SHALL ULTIMATELY
BE DETERMINED THAT SUCH DIRECTOR IS NOT ENTITLED TO SUCH EXPENSES. ANY ADVANCES
AND UNDERTAKINGS TO REPAY PURSUANT TO THIS SECTION 5 SHALL BE UNSECURED AND
INTEREST FREE AND SHALL BE ACCEPTED WITHOUT REFERENCE TO FINANCIAL ABILITY TO
MAKE THE REPAYMENT. A DIRECTOR'S ENTITLEMENT TO SUCH EXPENSES SHALL INCLUDE
THOSE INCURRED IN CONNECTION WITH ANY PROCEEDING BY SUCH DIRECTOR SEEKING AN
ADJUDICATION PURSUANT TO THIS AGREEMENT.
SECTION 6.
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION OR
ADVANCES. IT IS THE INTENT OF THIS AGREEMENT TO SECURE FOR EACH DIRECTOR RIGHTS
OF INDEMNITY THAT ARE AS FAVORABLE AS MAY BE PERMITTED UNDER THE LAW AND PUBLIC
POLICY OF THE STATE OF DELAWARE. ACCORDINGLY, THE PARTIES AGREE THAT THE
FOLLOWING PROCEDURES AND PRESUMPTIONS SHALL APPLY IN THE EVENT OF ANY QUESTION
AS TO WHETHER A DIRECTOR IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT:
(A)
TO OBTAIN INDEMNIFICATION (INCLUDING, WITHOUT LIMITATION, THE
ADVANCEMENT OF EXPENSES AND CONTRIBUTION BY THE CORPORATION) UNDER THIS
AGREEMENT, A DIRECTOR SHALL SUBMIT TO THE CORPORATION A WRITTEN REQUEST,
INCLUDING THEREIN OR THEREWITH SUCH DOCUMENTATION AND INFORMATION AS IS
REASONABLY AVAILABLE TO SUCH DIRECTOR AND IS REASONABLY NECESSARY TO DETERMINE
WHETHER AND TO WHAT