OTHER THINGS, SHALL RENDER ITS
WRITTEN OPINION TO THE COMPANY AND INDEMNITEE AS TO WHETHER AND TO WHAT EXTENT
INDEMNITEE WOULD BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW.
THE
COMPANY AGREES TO PAY THE REASONABLE FEES OF THE INDEPENDENT LEGAL COUNSEL
REFERRED TO ABOVE AND TO INDEMNIFY FULLY SUCH COUNSEL AGAINST ANY AND ALL
EXPENSES (INCLUDING ATTORNEYS' FEES), CLAIMS, LIABILITIES AND DAMAGES ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
4.
INDEMNIFICATION FOR ADDITIONAL EXPENSES.
THE COMPANY SHALL
INDEMNIFY INDEMNITEE AGAINST ANY AND ALL EXPENSES AND, IF REQUESTED BY
INDEMNITEE, SHALL PROVIDE SUCH EXPENSE ADVANCES TO INDEMNITEE SUBJECT TO AND IN
ACCORDANCE WITH SECTION 2(B), WHICH ARE INCURRED BY INDEMNITEE IN CONNECTION
WITH ANY ACTION BROUGHT BY INDEMNITEE FOR (I) INDEMNIFICATION OR PAYMENT OF
EXPENSE ADVANCES BY THE COMPANY UNDER THIS AGREEMENT, THE BYLAWS OR THE CHARTER
NOW OR HEREAFTER IN EFFECT AND/OR (II) RECOVERY UNDER ANY DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE POLICIES MAINTAINED BY THE COMPANY, REGARDLESS OF
WHETHER
6
INDEMNITEE ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION,
EXPENSE ADVANCE OR INSURANCE RECOVERY, AS THE CASE MAY BE.
5.
PARTIAL INDEMNITY, ETC.
IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME OR A
PORTION OF THE EXPENSES OR OTHER INDEMNIFIABLE AMOUNTS IN RESPECT OF A CLAIM BUT
NOT, HOWEVER, FOR THE TOTAL AMOUNT THEREOF, THE COMPANY SHALL NEVERTHELESS
INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF TO WHICH INDEMNITEE IS ENTITLED.
MOREOVER, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT
THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN DEFENSE OF ANY
OR ALL CLAIMS RELATING IN WHOLE OR IN PART TO AN INDEMNIFIABLE EVENT OR IN
DEFENSE OF ANY ISSUE OR MATTER THEREIN, INCLUDING DISMISSAL WITHOUT PREJUDICE,
INDEMNITEE SHALL BE INDEMNIFIED AGAINST ALL EXPENSES INCURRED IN CONNECTION
THEREWITH.
6.
WITNESS EXPENSES.
THE COMPANY AGREES TO COMPENSATE INDEMNITEE
FOR THE REASONABLE VALUE OF INDEMNITEE'S TIME SPENT, AND TO REIMBURSE INDEMNITEE
FOR ALL EXPENSES INCURRED BY INDEMNITEE, IN CONNECTION WITH BEING A WITNESS, OR
IF INDEMNITEE IS THREATENED TO BE MADE A WITNESS, WITH RESPECT TO ANY CLAIM
INVOLVING THE COMPANY TO WHICH INDEMNITEE IS NOT A PARTY.
7.
BURDEN OF PROOF.
IN CONNECTION WITH ANY DETERMINATION BY THE
REVIEWING PARTY OR OTHERWISE AS TO WHETHER INDEMNITEE IS ENTITLED TO BE
INDEMNIFIED HEREUNDER THE REVIEWING PARTY OR COURT SHALL PRESUME THAT INDEMNITEE
HAS SATISFIED THE APPLICABLE STANDARD OF CONDUCT AND IS ENTITLED TO
INDEMNIFICATION, AND THE BURDEN OF PROOF SHALL BE ON THE COMPANY TO ESTABLISH,
BY CLEAR AND CONVINCING EVIDENCE, THAT INDEMNITEE IS NOT SO ENTITLED.
8.
RELIANCE AS SAFE HARBOR.
FOR PURPOSES OF THIS AGREEMENT,
INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH AND IN A MANNER
INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF
THE COMPANY, IF INDEMNITEE'S ACTIONS OR OMISSIONS ARE BASED ON THE RECORDS OR
BOOKS OF ACCOUNT OF THE COMPANY OR ANOTHER ENTERPRISE, OR ON INFORMATION
SUPPLIED