FEES AND
EXPENSES OF SUCH COUNSEL INCURRED AFTER NOTICE FROM THE CORPORATION OF ITS
ASSUMPTION OF THE DEFENSE THEREOF SHALL BE AT THE EXPENSE OF INDEMNITEE UNLESS
(I) THE EMPLOYMENT OF COUNSEL BY INDEMNITEE HAS BEEN AUTHORIZED BY THE
CORPORATION, (II) COUNSEL TO INDEMNITEE SHALL HAVE REASONABLY CONCLUDED THAT
THERE MAY BE A CONFLICT OF INTEREST OR POSITION ON ANY SIGNIFICANT ISSUE BETWEEN
THE CORPORATION AND INDEMNITEE IN THE CONDUCT OF THE DEFENSE OF SUCH ACTION OR
(III) THE CORPORATION SHALL NOT IN FACT HAVE EMPLOYED COUNSEL TO ASSUME THE
DEFENSE OF SUCH ACTION, IN EACH OF WHICH CASES THE REASONABLE FEES AND EXPENSES
OF COUNSEL FOR INDEMNITEE SHALL BE AT THE EXPENSE OF THE CORPORATION, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED BY THIS AGREEMENT, AND PROVIDED THAT INDEMNITEE'S
COUNSEL SHALL COOPERATE REASONABLY WITH THE CORPORATION'S COUNSEL TO MINIMIZE
THE COST OF DEFENDING CLAIMS AGAINST THE CORPORATION AND INDEMNITEE.
THE
CORPORATION SHALL NOT BE ENTITLED, WITHOUT THE CONSENT OF INDEMNITEE, TO ASSUME
THE DEFENSE OF ANY CLAIM BROUGHT BY OR IN THE RIGHT OF THE CORPORATION OR AS TO
WHICH COUNSEL FOR INDEMNITEE SHALL HAVE REASONABLY MADE THE CONCLUSION PROVIDED
FOR IN CLAUSE (II) ABOVE.
(B)
THE CORPORATION SHALL NOT BE REQUIRED TO
INDEMNIFY INDEMNITEE UNDER THIS AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT OF
ANY PROCEEDING EFFECTED WITHOUT ITS WRITTEN CONSENT.
THE CORPORATION SHALL NOT
SETTLE ANY PROCEEDING IN ANY MANNER WHICH WOULD IMPOSE ANY PENALTY OR LIMITATION
ON INDEMNITEE WITHOUT INDEMNITEE'S WRITTEN CONSENT.
NEITHER THE CORPORATION NOR
INDEMNITEE WILL UNREASONABLY WITHHOLD ITS OR HIS OR HER CONSENT TO ANY PROPOSED
SETTLEMENT.
6.
ADVANCEMENT OF EXPENSES.
IN THE EVENT
THAT (A) THE CORPORATION DOES NOT ASSUME THE DEFENSE PURSUANT TO PARAGRAPH 5 OF
THIS AGREEMENT OF ANY PROCEEDING TO WHICH INDEMNITEE IS A PARTY OR IS THREATENED
TO BE MADE A PARTY BECAUSE OF INDEMNITEE'S CORPORATE STATUS OR BY REASON OF ANY
ACTION ALLEGED TO HAVE BEEN TAKEN OR OMITTED IN CONNECTION THEREWITH AND OF
WHICH THE CORPORATION RECEIVES NOTICE UNDER THIS AGREEMENT OR (B) THE
CORPORATION ASSUMES SUCH DEFENSE BUT INDEMNITEE IS, PURSUANT TO PARAGRAPH 5 OF
THIS AGREEMENT, NONETHELESS ENTITLED TO HAVE THE FEES AND COSTS OF INDEMNITEE'S
OWN COUNSEL PAID FOR BY THE CORPORATION, ANY REASONABLE EXPENSES INCURRED BY
INDEMNITEE OR ON HIS OR HER BEHALF IN DEFENDING SUCH PROCEEDING SHALL BE PAID BY
THE CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING;
PROVIDED, HOWEVER, THAT THE PAYMENT OF SUCH EXPENSES INCURRED BY INDEMNITEE OR
ON HIS OR HER BEHALF IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING
SHALL BE MADE ONLY UPON RECEIPT OF (A) A WRITTEN AFFIRMATION OF INDEMNITEE'S
GOOD FAITH BELIEF THAT INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT
DESCRIBED IN PARAGRAPH 2 OF THIS AGREEMENT OR THAT THE PROCEEDING INVOLVES
CONDUCT FOR WHICH LIABILITY HAS BEEN ELIMINATED UNDER A PROVISION OF THE
CORPORATION'S ARTICLES OF ORGANIZATION AS AUTHORIZED BY SECTION 2.02(B)(4) OF
CHAPTER 156D OR ANY SUCCESSOR PROVISION TO SUCH SECTION AND (B) AN UNLIMITED
UNDERTAKING BY OR ON