CLAIM THAT
INDEMNITEE RECEIVED AN IMPROPER PERSONAL BENEFIT, NO INDEMNIFIABLE EXPENSES
SHALL BE PAID WITH RESPECT TO SUCH CLAIM, ISSUE OR MATTER UNLESS THE COURT OF
CHANCERY OR ANOTHER COURT IN WHICH SUCH PROCEEDING WAS BROUGHT SHALL DETERMINE
UPON APPLICATION THAT, DESPITE THE ADJUDICATION OF LIABILITY, BUT IN VIEW OF ALL
THE CIRCUMSTANCES OF THE CASE, INDEMNITEE IS FAIRLY AND REASONABLY ENTITLED TO
INDEMNITY FOR SUCH INDEMNIFIABLE EXPENSES WHICH SUCH COURT SHALL DEEM PROPER.
5.
PROCEDURE FOR PAYMENT OF INDEMNIFIABLE
AMOUNTS. INDEMNITEE SHALL SUBMIT TO THE COMPANY A WRITTEN REQUEST SPECIFYING THE
INDEMNIFIABLE AMOUNTS FOR WHICH INDEMNITEE SEEKS PAYMENT UNDER SECTION 3 OF THIS
AGREEMENT AND THE BASIS FOR THE CLAIM. THE COMPANY SHALL PAY SUCH INDEMNIFIABLE
AMOUNTS TO INDEMNITEE WITHIN TWENTY (20) CALENDAR DAYS OF RECEIPT OF THE
REQUEST. AT THE REQUEST OF THE COMPANY, INDEMNITEE SHALL FURNISH SUCH
DOCUMENTATION AND INFORMATION AS ARE REASONABLY AVAILABLE TO INDEMNITEE AND
NECESSARY TO ESTABLISH THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION HEREUNDER.
6.
INDEMNIFICATION FOR EXPENSES OF A PARTY
WHO IS WHOLLY OR PARTLY SUCCESSFUL. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, AND WITHOUT LIMITING ANY SUCH PROVISION, TO THE EXTENT THAT
INDEMNITEE IS, BY REASON OF INDEMNITEE'S CORPORATE STATUS, A PARTY TO AND IS
SUCCESSFUL, ON THE MERITS OR OTHERWISE, IN ANY PROCEEDING, INDEMNITEE SHALL BE
INDEMNIFIED AGAINST ALL EXPENSES REASONABLY INCURRED BY INDEMNITEE OR ON
INDEMNITEE'S BEHALF IN CONNECTION THEREWITH. IF INDEMNITEE IS NOT WHOLLY
SUCCESSFUL IN SUCH PROCEEDING BUT IS SUCCESSFUL, ON THE MERITS OR OTHERWISE, AS
TO ONE OR MORE BUT LESS THAN ALL CLAIMS, ISSUES OR MATTERS IN SUCH
3
PROCEEDING, THE COMPANY SHALL INDEMNIFY INDEMNITEE AGAINST ALL EXPENSES
REASONABLY INCURRED BY INDEMNITEE OR ON INDEMNITEE'S BEHALF IN CONNECTION WITH
EACH SUCCESSFULLY RESOLVED CLAIM, ISSUE OR MATTER. FOR PURPOSES OF THIS
AGREEMENT, THE TERMINATION OF ANY CLAIM, ISSUE OR MATTER IN SUCH A PROCEEDING BY
DISMISSAL, WITH OR WITHOUT PREJUDICE, SHALL BE DEEMED TO BE A SUCCESSFUL RESULT
AS TO SUCH CLAIM, ISSUE OR MATTER.
7.
EFFECT OF CERTAIN RESOLUTIONS. NEITHER
THE SETTLEMENT OR TERMINATION OF ANY PROCEEDING NOR THE FAILURE OF THE COMPANY
TO AWARD INDEMNIFICATION OR TO DETERMINE THAT INDEMNIFICATION IS PAYABLE SHALL
CREATE AN ADVERSE PRESUMPTION THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION
HEREUNDER. IN ADDITION, THE TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER,
SETTLEMENT, CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT
SHALL NOT CREATE A PRESUMPTION THAT INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN
A MANNER WHICH INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE
BEST INTERESTS OF THE COMPANY OR, WITH RESPECT TO ANY CRIMINAL ACTION OR
PROCEEDING, HAD REASONABLE CAUSE TO BELIEVE THAT INDEMNITEE'S ACTION WAS
UNLAWFUL.
8.
AGREEMENT TO ADVANCE INTERIM EXPENSES;
CONDITIONS. THE COMPANY SHALL PAY TO INDEMNITEE ALL INDEMNIFIABLE EXPENSES
INCURRED BY INDEMNITEE IN CONNECTION WITH ANY PROCEEDING, INCLUDING A PROCEEDING
BY OR IN THE RIGHT OF THE COMPANY, IN ADVANCE OF THE FINAL DISPOSITION OF SUCH
PROCEEDING, IF INDEMNITEE FURNISHES THE COMPANY WITH A WRITTEN UNDERTAKING TO