OPPOSED TO THE BEST INTERESTS OF THE
CORPORATION.
(C)
THE TERMINATION OF A PROCEEDING BY
JUDGMENT, ORDER, SETTLEMENT OR CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR
ITS EQUIVALENT, IS NOT, OF ITSELF, DETERMINATIVE THAT INDEMNITEE DID NOT MEET
THE RELEVANT STANDARD OF CONDUCT DESCRIBED IN THIS PARAGRAPH 2.
3.
EXCEPTIONS TO RIGHT OF
INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
EXCEPT AS SET FORTH IN PARAGRAPHS 8 AND 10:
(A)
THE CORPORATION SHALL NOT INDEMNIFY
INDEMNITEE IN CONNECTION WITH A PROCEEDING (OR PART THEREOF) INITIATED BY
INDEMNITEE UNLESS THE INITIATION THEREOF WAS APPROVED BY THE BOARD OF DIRECTORS
OF THE CORPORATION (THE "BOARD OF DIRECTORS"); AND
(B)
THE CORPORATION SHALL NOT BE REQUIRED TO
MAKE ANY INDEMNIFICATION PAYMENT TO INDEMNITEE TO THE EXTENT INDEMNITEE HAS
OTHERWISE ACTUALLY RECEIVED SUCH PAYMENT UNDER ANY INSURANCE POLICY, AGREEMENT
OR OTHERWISE, AND IN THE EVENT THE CORPORATION MAKES ANY INDEMNIFICATION PAYMENT
TO INDEMNITEE AND INDEMNITEE IS SUBSEQUENTLY REIMBURSED FROM THE PROCEEDS OF
INSURANCE, INDEMNITEE SHALL PROMPTLY REFUND SUCH INDEMNIFICATION PAYMENT TO THE
CORPORATION TO THE EXTENT OF SUCH INSURANCE REIMBURSEMENT.
4.
INDEMNIFICATION OF EXPENSES OF
SUCCESSFUL PARTY.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN
ADDITION TO AND NOT IN LIMITATION OF THE RIGHTS SET FORTH IN PARAGRAPH 2, TO THE
EXTENT THAT INDEMNITEE HAS BEEN WHOLLY SUCCESSFUL, ON THE MERITS OR OTHERWISE,
IN THE DEFENSE OF ANY PROCEEDING TO WHICH INDEMNITEE WAS A PARTY BECAUSE OF
INDEMNITEE'S CORPORATE STATUS, INDEMNITEE SHALL BE INDEMNIFIED, TO THE FULLEST
EXTENT PERMITTED BY LAW (AS SUCH MAY BE AMENDED FROM TIME TO TIME) AGAINST ALL
REASONABLE EXPENSES INCURRED BY INDEMNITEE IN CONNECTION THEREWITH.
5.
NOTIFICATION AND DEFENSE OF CLAIM.
(A)
AS A CONDITION PRECEDENT TO INDEMNITEE'S
RIGHT TO BE INDEMNIFIED, INDEMNITEE MUST NOTIFY THE CORPORATION IN WRITING AS
SOON AS PRACTICABLE OF ANY PROCEEDING FOR WHICH INDEMNITY WILL OR COULD BE
SOUGHT BY INDEMNITEE 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.
WITH RESPECT TO
ANY PROCEEDING OF WHICH THE CORPORATION IS SO NOTIFIED, THE CORPORATION WILL BE
ENTITLED (I) TO PARTICIPATE THEREIN AT ITS OWN EXPENSE AND/OR (II) TO ASSUME THE
DEFENSE THEREOF AT ITS OWN EXPENSE, WITH LEGAL COUNSEL REASONABLY ACCEPTABLE TO
INDEMNITEE.
AFTER NOTICE FROM THE CORPORATION TO INDEMNITEE OF ITS ELECTION SO
TO ASSUME SUCH DEFENSE, THE CORPORATION SHALL NOT BE LIABLE TO INDEMNITEE FOR
ANY LEGAL OR OTHER EXPENSES SUBSEQUENTLY INCURRED BY INDEMNITEE IN CONNECTION
WITH SUCH CLAIM, OTHER THAN AS PROVIDED BELOW IN THIS PARAGRAPH 5.
INDEMNITEE
SHALL HAVE THE RIGHT TO EMPLOY INDEMNITEE'S OWN COUNSEL IN CONNECTION WITH SUCH
CLAIM, BUT THE 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