AND THE
COMPANY HEREBY WAIVES AND RELINQUISHES ANY RIGHT OF CONTRIBUTION IT MAY HAVE AT
ANY TIME AGAINST INDEMNITEE.
(B)
THE COMPANY SHALL 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.
(C)
THE COMPANY HEREBY AGREES TO FULLY INDEMNIFY
AND HOLD HARMLESS INDEMNITEE FROM ANY CLAIMS FOR CONTRIBUTION WHICH MAY BE
BROUGHT BY OFFICERS, DIRECTORS OR EMPLOYEES OF THE COMPANY OTHER THAN INDEMNITEE
WHO MAY BE JOINTLY LIABLE WITH INDEMNITEE.
9.
EXCLUSIONS.
NOTWITHSTANDING ANY PROVISION
IN THIS AGREEMENT, THE COMPANY SHALL NOT BE OBLIGATED UNDER THIS AGREEMENT TO
MAKE ANY INDEMNITY IN CONNECTION WITH ANY CLAIM MADE AGAINST INDEMNITEE:
(A)
FOR WHICH PAYMENT HAS ACTUALLY BEEN RECEIVED
BY OR ON BEHALF OF INDEMNITEE UNDER ANY INSURANCE POLICY OR OTHER INDEMNITY
PROVISION, EXCEPT WITH RESPECT TO ANY EXCESS BEYOND THE AMOUNT ACTUALLY RECEIVED
UNDER ANY INSURANCE POLICY, CONTRACT, AGREEMENT, OTHER INDEMNITY PROVISION OR
OTHERWISE;
(B)
FOR AN ACCOUNTING OF PROFITS MADE FROM THE
PURCHASE AND SALE (OR SALE AND PURCHASE) BY INDEMNITEE OF SECURITIES OF THE
COMPANY WITHIN THE MEANING OF SECTION 16(B) OF THE EXCHANGE ACT OR SIMILAR
PROVISIONS OF STATE STATUTORY LAW OR COMMON LAW; OR
(C)
EXCEPT AS OTHERWISE PROVIDED IN SECTIONS
14(E)-(F) HEREOF, PRIOR TO A CHANGE IN CONTROL, IN CONNECTION WITH ANY
PROCEEDING (OR ANY PART OF ANY PROCEEDING) INITIATED BY INDEMNITEE, INCLUDING
ANY PROCEEDING (OR ANY PART OF ANY PROCEEDING) INITIATED BY INDEMNITEE AGAINST
THE COMPANY OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR OTHER INDEMNITEES, UNLESS
(I) THE
7
BOARD AUTHORIZED THE PROCEEDING (OR ANY PART OF ANY PROCEEDING) PRIOR TO ITS
INITIATION; OR (II) THE COMPANY PROVIDES THE INDEMNIFICATION, IN ITS SOLE
DISCRETION, PURSUANT TO THE POWERS VESTED IN THE COMPANY UNDER APPLICABLE LAW.
10.
ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
(A)
NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE COMPANY SHALL ADVANCE THE EXPENSES INCURRED BY INDEMNITEE (OR
REASONABLY EXPECTED BY INDEMNITEE TO BE INCURRED BY INDEMNITEE WITHIN THREE
MONTHS) IN CONNECTION WITH ANY PROCEEDING WITHIN TEN (10) DAYS AFTER THE RECEIPT
BY THE COMPANY OF A STATEMENT OR STATEMENTS REQUESTING SUCH ADVANCES FROM TIME
TO TIME, WHETHER PRIOR TO OR AFTER FINAL DISPOSITION OF ANY PROCEEDING.
ADVANCES SHALL BE UNSECURED AND INTEREST FREE.
ADVANCES SHALL BE MADE WITHOUT
REGARD TO INDEMNITEE'S ABILITY TO REPAY THE EXPENSES AND WITHOUT REGARD TO
INDEMNITEE'S ULTIMATE ENTITLEMENT TO INDEMNIFICATION UNDER THE OTHER PROVISIONS
OF THIS AGREEMENT.
ADVANCES SHALL INCLUDE ANY AND ALL REASONABLE EXPENSES
INCURRED PURSUING A PROCEEDING TO ENFORCE THIS RIGHT OF ADVANCEMENT, INCLUDING
EXPENSES INCURRED PREPARING AND FORWARDING STATEMENTS TO THE COMPANY TO SUPPORT
THE ADVANCES CLAIMED.
THE INDEMNITEE SHALL QUALIFY FOR ADVANCES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, SOLELY UPON THE EXECUTION AND DELIVERY TO
THE COMPANY OF AN UNDERTAKING PROVIDING THAT THE INDEMNITEE UNDERTAKES TO REPAY
THE