RELATIVE
BENEFITS RECEIVED BY THE COMPANY AND INDEMNITEE AS A RESULT OF THE
EVENT(S) AND/OR TRANSACTION(S) GIVING CAUSE TO SUCH PROCEEDING; AND/OR (II) THE
RELATIVE FAULT OF THE COMPANY (AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS) AND INDEMNITEE IN CONNECTION WITH SUCH EVENT(S) AND/OR TRANSACTION(S).
3.
No Employment Rights.
Nothing contained
in this Agreement is intended to create in Indemnitee any right to continued
employment.
The foregoing nothwithstanding, this Agreement shall continue in
force after Indemnitee has ceased to serve as a director, officer, employee or
agent of the Company.
4
4.
Expenses; Indemnification Procedure.
(A)
ADVANCEMENT OF EXPENSES. THE COMPANY SHALL
ADVANCE ALL EXPENSES INCURRED BY INDEMNITEE IN CONNECTION WITH THE
INVESTIGATION, DEFENSE, SETTLEMENT OR APPEAL OF ANY PROCEEDING REFERRED TO IN
SECTION 1 HEREOF (INCLUDING AMOUNTS ACTUALLY PAID IN SETTLEMENT OF ANY SUCH
PROCEEDING).
ADVANCES SHALL BE UNSECURED AND INTEREST FREE.
ADVANCES SHALL BE
MADE WITHOUT REGARD TO INDEMNITEE'S ABILITY TO REPAY THE EXPENSES AND WITHOUT
REGARD TO INDEMNITEE'S ULTIMATE ENTITLEMENT TO INDEMNIFICATION UNDER THE OTHER
PROVISIONS OF THIS AGREEMENT.
INDEMNITEE SHALL QUALIFY FOR ADVANCES UPON THE
EXECUTION AND DELIVER TO THE COMPANY OF THIS AGREEMENT AND INDEMNITEE HEREBY
UNDERTAKES TO THE FULLEST EXTENT REQUIRED BY LAW TO REPAY SUCH AMOUNTS ADVANCED
ONLY IF, AND TO THE EXTENT THAT, IT SHALL ULTIMATELY BE DETERMINED BY A COURT OF
COMPETENT JURISDICTION IN A FINAL JUDGMENT, NOT SUBJECT TO APPEAL, THAT
INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED BY THE COMPANY AS AUTHORIZED
HEREBY.
THE RIGHT TO ADVANCES UNDER THIS PARAGRAPH SHALL IN ALL EVENTS CONTINUE
UNTIL FINAL DISPOSITION OF ANY PROCEEDING, INCLUDING ANY APPEAL THEREIN.
NOTHING IN THIS SECTION 4(A) SHALL LIMIT INDEMNITEE'S RIGHT TO ADVANCEMENT OF
ENFORCEMENT EXPENSES PURSUANT TO SECTION 4(C).
(B)
NOTICE/COOPERATION BY INDEMNITEE.
INDEMNITEE SHALL GIVE THE COMPANY NOTICE IN WRITING AS SOON AS PRACTICABLE OF
ANY CLAIM MADE AGAINST INDEMNITEE FOR WHICH INDEMNIFICATION WILL OR COULD BE
SOUGHT UNDER THIS AGREEMENT.
FAILURE OF THE INDEMNITEE TO GIVE THE COMPANY
NOTICE OF ANY CLAIM MADE AGAINST INDEMNITEE FOR WHICH INDEMNIFICATION WILL OR
COULD BE SOUGHT UNDER THIS AGREEMENT SHALL NOT PREVENT INDEMNITEE FROM OBTAINING
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES HEREUNDER, EXCEPT TO THE EXTENT (AND
ONLY TO THE EXTENT) FAILURE TO GIVE SUCH NOTICE HAS INCREASED THE DAMAGES TO THE
COMPANY HEREUNDER.
NOTICE TO THE COMPANY SHALL BE DIRECTED TO THE CHIEF
EXECUTIVE OFFICER OF THE COMPANY AND SHALL BE GIVEN IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 14(D) BELOW. IN ADDITION, INDEMNITEE SHALL GIVE THE
COMPANY SUCH INFORMATION AND COOPERATION AS IT MAY REASONABLY REQUIRE AND AS
SHALL REASONABLY BE WITHIN INDEMNITEE'S POWER.
(C)
PROCEDURE.
ANY INDEMNIFICATION AND
ADVANCES PROVIDED FOR IN THIS AGREEMENT SHALL BE MADE NO LATER THAN TWENTY (20)
DAYS AFTER RECEIPT OF THE WRITTEN REQUEST OF INDEMNITEE.
IF A CLAIM UNDER THIS
AGREEMENT, UNDER ANY STATUTE, OR UNDER ANY PROVISION OF THE CHARTER OR BYLAWS
PROVIDING FOR INDEMNIFICATION, IS NOT PAID IN FULL BY THE COMPANY WITHIN TWENTY
(20) DAYS AFTER A WRITTEN REQUEST FOR PAYMENT THEREOF HAS FIRST