SHALL
INDEMNIFY INDEMNITEE AND INDEMNITEE'S SPOUSE AGAINST ANY AND ALL EXPENSES
ACTUALLY AND REASONABLY INCURRED TO THE EXTENT THAT SUCH PERSON HAS BEEN
SUCCESSFUL ON THE MERITS OR OTHERWISE IN THE DEFENSE OF ANY PROCEEDING REFERRED
TO IN ARTICLE III, SECTION 3.01.
A DISMISSAL WITH OR WITHOUT PREJUDICE SHALL BE
DEEMED A SUCCESS IN A PROCEEDING.
WHERE INDEMNITEE OR INDEMNITEE'S SPOUSE IS
SUCCESSFUL IN DEFENDING AGAINST SOME, BUT NOT ALL, CLAIMS, ISSUES OR MATTERS,
THE COMPANY SHALL INDEMNIFY SUCH PERSON AGAINST ANY AND ALL EXPENSES REASONABLY
INCURRED IN THE DEFENSE OF THE CLAIMS, ISSUES AND MATTERS THAT WERE SUCCESSFULLY
DEFENDED.
SECTION 3.03
FAILURE TO ACT.
IF A DETERMINATION AS TO INDEMNITEE'S OR
INDEMNITEE'S SPOUSE'S ENTITLEMENT TO INDEMNIFICATION SHALL NOT HAVE BEEN MADE
PURSUANT TO THIS AGREEMENT WITHIN 60 DAYS AFTER THE FINAL DISPOSITION OF THE
MATTER THAT IS THE SUBJECT OF THE REQUEST FOR INDEMNIFICATION, THE REQUISITE
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION SHALL BE DEEMED TO HAVE BEEN
MADE IN FAVOR OF INDEMNITEE OR INDEMNITEE'S SPOUSE, AND INDEMNITEE OR
INDEMNITEE'S SPOUSE, AS THE CASE MAY BE, SHALL BE ENTITLED TO SUCH
INDEMNIFICATION PROVIDED THAT SUCH 60-DAY PERIOD MAY BE EXTENDED FOR A
REASONABLE TIME, NOT TO EXCEED AN ADDITIONAL 30 DAYS, IF THE PERSON OR PERSONS
MAKING THE DETERMINATION IN GOOD FAITH REQUIRES SUCH ADDITIONAL TIME TO OBTAIN
OR EVALUATE ANY DOCUMENTATION OR INFORMATION RELATING THERETO.
8
ARTICLE IV
SECTION 4.01
ADVANCES; WRITTEN REQUEST.
THE COMPANY SHALL ADVANCE TO
INDEMNITEE AND INDEMNITEE'S SPOUSE ANY AND ALL EXPENSES ACTUALLY INCURRED BY
SUCH PERSON IN CONNECTION WITH ANY PROCEEDING WITHIN 14 CALENDAR DAYS OF RECEIPT
OF A WRITTEN REQUEST FOR ADVANCEMENT, WHICH MAY BE DELIVERED TO THE COMPANY AT
SUCH TIME AND FROM TIME TO TIME AS INDEMNITEE OR INDEMNITEE'S SPOUSE DEEMS
APPROPRIATE IN SUCH PERSON'S DISCRETION.
ADVANCES SHALL BE MADE WITHOUT REGARD
TO THE ABILITY OF INDEMNITEE OR INDEMNITEE'S SPOUSE TO REPAY SUCH AMOUNTS.
ANY
SUCH ADVANCES SHALL BE MADE ON AN UNSECURED BASIS AND BE INTEREST-FREE.
THE
COMPANY AGREES NOT TO REFUSE ADVANCEMENT OF EXPENSES ON THE GROUNDS THAT, OR
ASSERT AS AN AFFIRMATIVE DEFENSE OR OTHERWISE, IN ANY PROCEEDING, THAT THE
AMOUNT OF EXPENSES INCURRED BY INDEMNITEE OR INDEMNITEE'S SPOUSE IS NOT
REASONABLE.
SECTION 4.02
SUFFICIENCY OF WRITTEN REQUEST FOR ADVANCES.
A WRITTEN
REQUEST FOR ADVANCEMENT THAT CONVEYS, WITHOUT THE NEED TO DO SO VERBATIM, THAT
INDEMNITEE OR INDEMNITEE'S SPOUSE BELIEVES IN GOOD FAITH THAT SUCH PERSON IS
ENTITLED TO ADVANCEMENT OF EXPENSES UNDER THE TERMS OF THIS AGREEMENT SHALL BE
SUFFICIENT TO INVOKE THE RIGHT TO ADVANCEMENT UNDER ARTICLE IV, SECTION 4.01.
SECTION 4.03
UNDERTAKING; PROMISE TO REPAY.
INDEMNITEE HEREBY AGREES
AND PROMISES, AND IN ACCEPTING ANY ADVANCEMENT INDEMNITEE'S SPOUSE SHALL BE
DEEMED TO HAVE AGREED AND PROMISED, THAT SUCH PERSON SHALL REPAY ANY AND ALL
ADVANCED EXPENSES IF A FINAL DETERMINATION IS MADE THAT SUCH PERSON IS NOT
ENTITLED TO INDEMNIFICATION.
IF A FINAL DETERMINATION IS MADE THAT INDEMNITEE
OR INDEMNITEE'S SPOUSE IS ENTITLED ONLY TO PARTIAL INDEMNIFICATION, THEN
INDEMNITEE AND INDEMNITEE'S SPOUSE SHALL ONLY REPAY