BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY; PROVIDED
HOWEVER, THAT NO SUCH INDEMNIFICATION SHALL BE MADE IN RESPECT OF ANY CLAIM,
ISSUE, OR MATTER AS TO WHICH THE INDEMNITEE SHALL HAVE BEEN ADJUDGED TO BE
LIABLE TO THE COMPANY, UNLESS AND ONLY TO THE EXTENT THAT THE COURT OF CHANCERY
OF THE STATE OF DELAWARE OR THE COURT IN WHICH SUCH ACTION, SUIT OR PROCEEDING
WAS BROUGHT SHALL DETERMINE UPON APPLICATION THAT, DESPITE THE ADJUDICATION OF
LIABILITY BUT IN VIEW OF ALL THE CIRCUMSTANCES OF THE CASE, THE INDEMNITEE IS
FAIRLY AND REASONABLY ENTITLED TO BE INDEMNIFIED AGAINST SUCH EXPENSES ACTUALLY
AND REASONABLY INCURRED BY HIM/HER WHICH SUCH COURT SHALL DEEM PROPER.
3
5.
GOOD FAITH DEFINITION.
FOR PURPOSES OF THIS AGREEMENT, THE
INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH AND IN A MANNER THE
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 TO HAVE HAD
NO REASONABLE CAUSE TO BELIEVE THE INDEMNITEE'S CONDUCT WAS UNLAWFUL, IF SUCH
ACTION WAS BASED ON (I) THE RECORDS OR BOOKS OF THE ACCOUNT OF THE COMPANY OR
OTHER ENTERPRISE, INCLUDING FINANCIAL STATEMENTS; (II) INFORMATION SUPPLIED TO
THE INDEMNITEE BY THE OFFICERS OF THE COMPANY OR OTHER ENTERPRISE IN THE COURSE
OF THEIR DUTIES; (III) THE ADVICE OF LEGAL COUNSEL FOR THE COMPANY OR OTHER
ENTERPRISE; OR (IV) INFORMATION OR RECORDS GIVEN IN REPORTS MADE TO THE COMPANY
OR OTHER ENTERPRISE BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR BY AN
APPRAISER OR OTHER EXPERT SELECTED WITH REASONABLE CARE BY THE COMPANY OR OTHER
ENTERPRISE.
6.
INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, TO THE EXTENT THAT THE
INDEMNITEE HAS SERVED ON BEHALF OF THE COMPANY, OR ANY OF ITS DIRECT OR INDIRECT
SUBSIDIARIES, AS A WITNESS OR OTHER PARTICIPANT IN ANY CLASS ACTION OR
PROCEEDING, OR HAS BEEN SUCCESSFUL, ON THE MERITS OR OTHERWISE, IN DEFENSE OF
ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN SECTION 3 AND 4 HEREOF, OR IN
DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, INCLUDING, BUT NOT LIMITED TO,
THE DISMISSAL OF ANY ACTION WITHOUT PREJUDICE, THE INDEMNITEE SHALL BE
INDEMNIFIED AGAINST ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY THE
INDEMNITEE IN CONNECTION THEREWITH, REGARDLESS OF WHETHER OR NOT THE INDEMNITEE
HAS MET THE APPLICABLE STANDARDS OF SECTION 3 OR 4 AND WITHOUT ANY DETERMINATION
PURSUANT TO SECTION 8.
7.
PARTIAL INDEMNIFICATION.
IF THE INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME OR A
PORTION OF THE EXPENSES, JUDGMENTS, FINES AND AMOUNTS PAID IN SETTLEMENT
ACTUALLY AND REASONABLY INCURRED BY THE INDEMNITEE IN CONNECTION WITH THE
INVESTIGATION, DEFENSE, APPEAL OR SETTLEMENT OF SUCH SUIT, ACTION, INVESTIGATION
OR PROCEEDING DESCRIBED IN SECTION 3 OR 4 HEREOF, BUT IS NOT ENTITLED TO
INDEMNIFICATION FOR THE TOTAL AMOUNT THEREOF, THE COMPANY SHALL NEVERTHELESS
INDEMNIFY THE INDEMNITEE FOR THE PORTION OF SUCH