DIRECTORS.
2.
AGREEMENT TO INDEMNIFY.
(A)
GENERAL AGREEMENT. IN THE EVENT INDEMNITEE WAS, IS, OR BECOME A
PARTY TO OR WITNESS OR OTHER PARTICIPANT IN, OR IS THREATENED TO BE MADE A PARTY
TO OR WITNESS OR OTHER PARTICIPANT IN, A PROCEEDING BY REASON OF (OR ARISING IN
PART OUT OF) AN INDEMNIFIABLE EVENT, THE COMPANY SHALL INDEMNIFY INDEMNITEE FROM
AND AGAINST ANY AND ALL EXPENSES TO THE FULLEST EXTENT PERMITTED BY LAW, AS THE
SAME EXISTS OR MAY HEREAFTER BE AMENDED OR INTERPRETED (BUT IN THE CASE OF ANY
SUCH AMENDMENT OR INTERPRETATION, ONLY TO THE EXTENT THAT SUCH AMENDMENT OR
INTERPRETATION PERMITS THE COMPANY TO PROVIDE BROADER INDEMNIFICATION RIGHTS
THAN WERE PERMITTED PRIOR THERETO).
(B)
INITIATION OF PROCEEDING. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, INDEMNITEE SHALL NOT BE ENTITLED TO INDEMNIFICATION
PURSUANT TO THIS AGREEMENT IN CONNECTION WITH ANY PROCEEDING INITIATED BY
INDEMNITEE AGAINST THE COMPANY OR ANY DIRECTOR OR OFFICER OF THE COMPANY UNLESS
(I) THE COMPANY HAS JOINED IN OR THE BOARD HAS CONSENTED TO THE INITIATION OF
SUCH PROCEEDING, (II) THE PROCEEDING IS ONE TO ENFORCE INDEMNIFICATION RIGHTS
UNDER SECTION 5, OR (III) THE PROCEEDING IS INSTITUTED AFTER A CHANGE IN CONTROL
AND INDEPENDENT COUNSEL HAS APPROVED ITS INITIATION.
(C)
EXPENSE ADVANCES. IF SO REQUESTED BY INDEMNITEE, THE COMPANY SHALL
ADVANCE (WITHIN TEN BUSINESS DAYS OF SUCH REQUEST) ANY AND ALL EXPENSES TO
INDEMNITEE (AN "EXPENSE ADVANCE"); PROVIDED THAT SUCH REQUEST SHALL BE
ACCOMPANIED BY REASONABLE EVIDENCE OF THE EXPENSES INCURRED BY INDEMNITEE AND
THAT, IF AND TO THE EXTENT THAT THE REVIEWING PARTY DETERMINES THAT INDEMNITEE
WOULD NOT BE PERMITTED TO BE SO INDEMNIFIED UNDER APPLICABLE LAW, THE COMPANY
SHALL BE ENTITLED TO BE REIMBURSED BY INDEMNITEE (WHO HEREBY AGREES TO REIMBURSE
THE COMPANY) FOR ALL SUCH AMOUNTS THERETOFORE PAID. IF INDEMNITEE HAS COMMENCED
LEGAL PROCEEDINGS IN A COURT OF COMPETENT JURISDICTION TO SECURE A DETERMINATION
THAT INDEMNITEE SHOULD BE INDEMNIFIED UNDER APPLICABLE LAW, AS PROVIDED IN
SECTION 4, ANY DETERMINATION MADE BY THE REVIEWING PARTY THAT INDEMNITEE WOULD
NOT BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW SHALL NOT BE BINDING AND
INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE THE COMPANY FOR ANY EXPENSE
ADVANCE UNTIL A FINAL JUDICIAL DETERMINATION IS MADE WITH RESPECT THERETO (AS TO
WHICH ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN EXHAUSTED OR HAVE LAPSED).
(D)
MANDATORY INDEMNIFICATION. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT (OTHER THAN SECTION 2(F) BELOW), TO THE EXTENT THAT INDEMNITEE
HAS BEEN SUCCESSFUL ON THE MERITS IN DEFENSE OF ANY PROCEEDING RELATING IN WHOLE
OR IN PART TO AN INDEMNIFIABLE EVENT
3
OR IN DEFENSE OF ANY ISSUE OR MATTER THEREIN, INDEMNITEE SHALL BE INDEMNIFIED
AGAINST ALL EXPENSES INCURRED IN CONNECTION THEREWITH.
(E)
PARTIAL INDEMNIFICATION. IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME OR A
PORTION OF EXPENSES, BUT NOT, HOWEVER, FOR THE TOTAL AMOUNT THEREOF, THE COMPANY
SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF TO WHICH
INDEMNITEE IS ENTITLED.
(F)