INTEREST OR POSITION ON ANY
SIGNIFICANT ISSUE BETWEEN THE CORPORATION
4
AND INDEMNITEE IN THE CONDUCT OF THE DEFENSE OF SUCH ACTION OR (III) THE
CORPORATION SHALL NOT IN FACT HAVE EMPLOYED COUNSEL TO ASSUME THE DEFENSE OF
SUCH ACTION, IN EACH OF WHICH CASES THE REASONABLE FEES AND EXPENSES OF COUNSEL
FOR INDEMNITEE SHALL BE AT THE EXPENSE OF THE CORPORATION, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED BY THIS AGREEMENT, AND PROVIDED THAT INDEMNITEE'S COUNSEL
SHALL COOPERATE REASONABLY WITH THE CORPORATION'S COUNSEL TO MINIMIZE THE COST
OF DEFENDING CLAIMS AGAINST THE CORPORATION AND INDEMNITEE.
THE CORPORATION
SHALL NOT BE ENTITLED, WITHOUT THE CONSENT OF INDEMNITEE, TO ASSUME THE DEFENSE
OF ANY CLAIM BROUGHT BY OR IN THE RIGHT OF THE CORPORATION OR AS TO WHICH
COUNSEL FOR INDEMNITEE SHALL HAVE REASONABLY MADE THE CONCLUSION PROVIDED FOR IN
CLAUSE (II) ABOVE.
(B)
THE CORPORATION SHALL NOT BE REQUIRED TO
INDEMNIFY INDEMNITEE UNDER THIS AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT OF
ANY PROCEEDING EFFECTED WITHOUT ITS WRITTEN CONSENT.
THE CORPORATION SHALL NOT
SETTLE ANY PROCEEDING IN ANY MANNER WHICH WOULD IMPOSE ANY PENALTY OR LIMITATION
ON INDEMNITEE WITHOUT INDEMNITEE'S WRITTEN CONSENT.
NEITHER THE CORPORATION NOR
INDEMNITEE WILL UNREASONABLY WITHHOLD ITS OR HIS OR HER CONSENT TO ANY PROPOSED
SETTLEMENT.
6.
ADVANCEMENT OF EXPENSES.
IN THE EVENT
THAT (A) THE CORPORATION DOES NOT ASSUME THE DEFENSE PURSUANT TO PARAGRAPH 5 OF
THIS AGREEMENT OF ANY PROCEEDING TO WHICH INDEMNITEE IS A PARTY OR IS THREATENED
TO BE MADE A PARTY BECAUSE OF INDEMNITEE'S CORPORATE STATUS OR BY REASON OF ANY
ACTION ALLEGED TO HAVE BEEN TAKEN OR OMITTED IN CONNECTION THEREWITH AND OF
WHICH THE CORPORATION RECEIVES NOTICE UNDER THIS AGREEMENT OR (B) THE
CORPORATION ASSUMES SUCH DEFENSE BUT INDEMNITEE IS, PURSUANT TO PARAGRAPH 5 OF
THIS AGREEMENT, NONETHELESS ENTITLED TO HAVE THE FEES AND COSTS OF INDEMNITEE'S
OWN COUNSEL PAID FOR BY THE CORPORATION, ANY REASONABLE EXPENSES INCURRED BY
INDEMNITEE OR ON HIS OR HER BEHALF IN DEFENDING SUCH PROCEEDING SHALL BE PAID BY
THE CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING;
PROVIDED, HOWEVER, THAT THE PAYMENT OF SUCH EXPENSES INCURRED BY INDEMNITEE OR
ON HIS OR HER BEHALF IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING
SHALL BE MADE ONLY UPON RECEIPT OF (A) A WRITTEN AFFIRMATION OF INDEMNITEE'S
GOOD FAITH BELIEF THAT INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT
DESCRIBED IN PARAGRAPH 2 OF THIS AGREEMENT OR THAT THE PROCEEDING INVOLVES
CONDUCT FOR WHICH LIABILITY HAS BEEN ELIMINATED UNDER A PROVISION OF THE
CORPORATION'S ARTICLES OF ORGANIZATION AS AUTHORIZED BY SECTION 2.02(B)(4) OF
CHAPTER 156D OR ANY SUCCESSOR PROVISION TO SUCH SECTION AND (B) AN UNLIMITED
UNDERTAKING BY OR ON BEHALF OF INDEMNITEE TO REPAY ALL AMOUNTS SO ADVANCED IN
THE EVENT THAT IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE IS NOT ENTITLED
TO BE INDEMNIFIED BY THE CORPORATION AS AUTHORIZED IN THIS AGREEMENT.
THE
UNDERTAKING REFERRED TO IN CLAUSE (B) ABOVE SHALL BE AN UNLIMITED, UNSECURED
GENERAL OBLIGATION OF INDEMNITEE AND SHALL