ISSUE OR MATTER, THE INDEMNITEE WILL PROMPTLY REIMBURSE THE CORPORATION
FOR SUCH FEES, COSTS OR EXPENSES AS AWARDED.
4.
INDEMNIFICATION FOR EXPENSES OF A WITNESS.
TO THE EXTENT THAT
THE INDEMNITEE IS, BY REASON OF THE INDEMNITEE'S CORPORATE STATUS, A WITNESS IN
ANY PROCEEDING TO WHICH THE INDEMNITEE IS NOT A PARTY, THE INDEMNITEE SHALL BE
INDEMNIFIED AGAINST ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY OR ON
BEHALF OF THE INDEMNITEE IN CONNECTION THEREWITH.
5.
EXCEPTIONS TO RIGHT OF INDEMNIFICATION.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY TO THIS AGREEMENT, EXCEPT AS SET FORTH IN SECTION 9,
(A)
THE CORPORATION SHALL NOT INDEMNIFY THE INDEMNITEE UNDER THIS
AGREEMENT IN CONNECTION WITH A PROCEEDING (OR PART THEREOF) INITIATED BY THE
INDEMNITEE UNLESS (I) THE INITIATION THEREOF WAS APPROVED BY THE BOARD OF
DIRECTORS OF THE CORPORATION OR (II) THE PROCEEDING WAS COMMENCED FOLLOWING A
CHANGE IN CONTROL; AND
4
(B)
THE CORPORATION SHALL NOT INDEMNIFY THE INDEMNITEE TO THE EXTENT
THE INDEMNITEE IS REIMBURSED FROM THE PROCEEDS OF INSURANCE, AND IN THE EVENT
THE CORPORATION MAKES ANY INDEMNIFICATION PAYMENTS TO THE INDEMNITEE AND THE
INDEMNITEE IS SUBSEQUENTLY REIMBURSED FROM THE PROCEEDS OF INSURANCE, THE
INDEMNITEE SHALL PROMPTLY REFUND SUCH INDEMNIFICATION PAYMENTS TO THE
CORPORATION TO THE EXTENT OF SUCH INSURANCE REIMBURSEMENT.
6.
NOTIFICATION AND DEFENSE OF CLAIM.
(A)
THE INDEMNITEE SHALL NOTIFY THE CORPORATION IN WRITING AS SOON AS
PRACTICABLE OF ANY PROCEEDING FOR WHICH INDEMNITY WILL OR COULD BE SOUGHT AND
PROVIDE THE CORPORATION WITH A COPY OF ANY SUMMONS, CITATION, SUBPOENA,
COMPLAINT, INDICTMENT, INFORMATION OR OTHER DOCUMENT RELATING TO SUCH PROCEEDING
WITH WHICH INDEMNITEE IS SERVED.
THE FAILURE TO SO NOTIFY THE CORPORATION WILL
NOT RELIEVE THE CORPORATION FROM ANY LIABILITY THAT IT MAY HAVE TO INDEMNITEE
(I) EXCEPT TO THE EXTENT THE FAILURE ADVERSELY AFFECTS THE CORPORATION'S RIGHTS,
LEGAL POSITION, ABILITY TO DEFEND OR ABILITY TO OBTAIN INSURANCE COVERAGE WITH
RESPECT TO SUCH PROCEEDING OR (II) OTHERWISE THAN UNDER THE CORPORATION'S
CERTIFICATE OF INCORPORATION.
WITH RESPECT TO ANY PROCEEDING OF WHICH THE
CORPORATION IS SO NOTIFIED, THE CORPORATION WILL BE ENTITLED TO PARTICIPATE
THEREIN AT ITS OWN EXPENSE AND/OR TO ASSUME THE DEFENSE THEREOF AT ITS OWN
EXPENSE, WITH LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNITEE (WHICH MAY
BE REGULAR OUTSIDE COUNSEL TO THE CORPORATION).
AFTER NOTICE FROM THE
CORPORATION TO THE INDEMNITEE OF ITS ELECTION SO TO ASSUME SUCH DEFENSE, THE
CORPORATION SHALL NOT BE LIABLE TO THE INDEMNITEE FOR ANY LEGAL OR OTHER
EXPENSES SUBSEQUENTLY INCURRED BY THE INDEMNITEE IN CONNECTION WITH SUCH
PROCEEDING, OTHER THAN AS PROVIDED BELOW IN THIS SECTION 6.
THE INDEMNITEE
SHALL HAVE THE RIGHT TO EMPLOY HIS OR HER OWN COUNSEL IN CONNECTION WITH SUCH
PROCEEDING, BUT THE EXPENSES OF SUCH COUNSEL INCURRED AFTER NOTICE FROM THE
CORPORATION OF ITS ASSUMPTION OF THE DEFENSE THEREOF SHALL BE AT THE EXPENSE OF
THE INDEMNITEE UNLESS (I) THE EMPLOYMENT OF COUNSEL BY THE INDEMNITEE HAS BEEN
AUTHORIZED BY THE CORPORATION, (II) COUNSEL TO THE INDEMNITEE SHALL HAVE
REASONABLY DETERMINED THAT THERE MAY BE A