TO MAKE ANY INDEMNITY IN CONNECTION WITH ANY
CLAIM MADE AGAINST INDEMNITEE:
(A)
FOR WHICH PAYMENT HAS ACTUALLY
BEEN MADE TO OR ON BEHALF OF INDEMNITEE UNDER ANY INSURANCE POLICY OR OTHER
INDEMNITY PROVISION, EXCEPT WITH RESPECT TO ANY EXCESS BEYOND THE AMOUNT PAID
UNDER ANY INSURANCE POLICY OR OTHER INDEMNITY PROVISION (IN THE EVENT THAT SUCH
ACTUAL PAYMENT IS MADE UNDER ANY INSURANCE POLICY OR INDEMNITY PROVISION AFTER
THE COMPANY HAS MADE AN INDEMNITY UNDER THIS AGREEMENT, INDEMNITEE SHALL
PROMPTLY REIMBURSE THE COMPANY FOR SUCH INDEMNITY IN THE AMOUNT OF SUCH
PAYMENT.); OR
(B)
FOR (I) 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 SECURITIES
EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT") OR SIMILAR PROVISIONS OF STATE
STATUTORY LAW OR COMMON LAW, OR (II) ANY REIMBURSEMENT OF THE COMPANY BY THE
INDEMNITEE OF ANY BONUS OR OTHER INCENTIVE-BASED OR EQUITY-BASED COMPENSATION OR
OF ANY PROFITS REALIZED BY THE INDEMNITEE FROM THE SALE OF SECURITIES OF THE
COMPANY, AS REQUIRED IN EACH CASE UNDER THE EXCHANGE ACT (INCLUDING ANY SUCH
REIMBURSEMENTS THAT ARISE FROM AN ACCOUNTING RESTATEMENT OF THE COMPANY PURSUANT
TO SECTION 304 OF THE SARBANES-OXLEY ACT OF 2002 (THE "SARBANES-OXLEY
4
ACT"), OR THE PAYMENT TO THE COMPANY OF PROFITS ARISING FROM THE PURCHASE AND
SALE BY INDEMNITEE OF SECURITIES IN VIOLATION OF SECTION 306 OF THE
SARBANES-OXLEY ACT); OR
(C)
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 BOARD AUTHORIZED THE PROCEEDING (OR ANY PART OF ANY PROCEEDING) PRIOR TO
ITS INITIATION, (II) THE PROCEEDING IS FOR ENFORCEMENT OF THIS AGREEMENT (TO THE
EXTENT THAT THE INDEMNITEE PREVAILS), OR (III) THE COMPANY PROVIDES THE
INDEMNIFICATION, IN ITS SOLE DISCRETION, PURSUANT TO THE POWERS VESTED IN THE
COMPANY UNDER APPLICABLE LAW.
SECTION 7.
ADVANCES OF EXPENSES.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE COMPANY
SHALL ADVANCE, TO THE EXTENT NOT PROHIBITED BY LAW, THE EXPENSES INCURRED BY
INDEMNITEE IN CONNECTION WITH ANY PROCEEDING (OR ANY PART OF ANY PROCEEDING) NOT
INITIATED BY INDEMNITEE, AND SUCH ADVANCEMENT SHALL BE MADE WITHIN TWENTY-ONE
(21) 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
ALSO INCLUDE ANY AND ALL REASONABLE EXPENSES INCURRED PURSUING AN ACTION TO
ENFORCE THIS RIGHT OF ADVANCEMENT, INCLUDING EXPENSES INCURRED PREPARING AND
FORWARDING STATEMENTS TO THE COMPANY TO SUPPORT THE ADVANCES CLAIMED.
INDEMNITEE UNDERTAKES TO REPAY THE AMOUNTS ADVANCED (WITHOUT INTEREST) TO