Common use of Derivative Actions Clause in Contracts

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee proceeding if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if (a) the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company, or (b) the Indemnitee, if a director or an officer of the Company, did not act or fail to act in a manner that constituted a breach of the Indemnitee’s fiduciary duties as a director or an officer or such Indemnitee breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals therefrom, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, ; provided the that Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction that the Indemnitee is liable to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a ------------------ party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee proceeding if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no ------ indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the CompanyAgent, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided that the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company, unless either the Indemnitee’s act or failure to act constituted a breach of the Indemnitee’s fiduciary duties as a director or officer or the Indemnitee’s breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals therefrom, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, the Company shall indemnify and hold harmless the Indemnitee against any amounts paid in settlement of any such Proceeding and any and all Expenses Expenses, losses and liabilities of any type whatsoever (including, but not limited to, judgments, damages, liabilities, losses, fines, excise taxes, penalties and amounts paid in settlement) actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement settlement, or appeal of of, or otherwise related to such Proceeding, provided the Indemnitee if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in with respect to any claim, issue or matter as to which the Indemnitee shall have such person has been finally adjudged to be have been liable to the Company by a court of competent jurisdiction Company, unless and only to the extent that the Delaware Court of Chancery of the State of Delaware or the court in which such 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 such person is fairly and reasonably entitled to indemnity for such amounts which Expenses as the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if (a) the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company, or (b) the Indemnitee, if a director or an officer of the Company, did not act or fail to act in a manner that constituted a breach of the Indemnitee’s fiduciary duties as a director or an officer or such Indemnitee breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals there from, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceedingproceeding, provided the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section subsection 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which reasonable expenses that the Delaware Court of Chancery or such other court shall deem properproper pursuant to Section 10-854 of the Arizona Revised Statutes.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceedingproceeding, provided the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section subsection 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which that the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding threatened, pending or completed action or suit by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent a director or officer of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, then the Company shall indemnify the Indemnitee against all Expenses expenses (including attorneys' fees) actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceeding, provided PROVIDED that the Indemnitee acted in good faith and in a manner the Indemnitee he reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section 4(b4(c) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceeding, provided proceeding if the Indemnitee 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; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of a duty to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee proceeding if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in in, or not opposed to to, the best interests of the Company; except provided, however, that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper. Notwithstanding the preceding, it is the intention of the parties hereto that Indemnitee shall be indemnified to the full extent authorized or permitted by Delaware Law and, therefore, to the extent Delaware Law shall permit broader contractual indemnification, this contract shall be deemed amended to incorporate such broader indemnification.

Derivative Actions. If Indemnitee shall be entitled to the rights of indemnification provided in this section 5 if, by reason of Indemnitee's Corporate Status, Indemnitee is a person who was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee to procure a judgment in any such capacityits favor. Pursuant to this section 5, the Company shall indemnify the and defend Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on Indemnitee's behalf in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Proceeding if Indemnitee 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; except that . Notwithstanding the foregoing, no indemnification under this Section 4(b) against such Expenses shall be made in respect to of any claim, issue or matter in such Proceeding as to which the Indemnitee shall have been finally adjudged to be liable to the Company if applicable law prohibits such indemnification; provided that, if applicable law so permits, indemnification against Expenses shall nevertheless be made by a court of competent jurisdiction unless the Company in such event if and only to the extent that the Delaware Court of Chancery of the State of Delaware, or the court in which such Proceeding was shall have been brought or is pending, 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem properdetermine.

Derivative Actions. If the Indemnitee Indemnitees is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee Indemnitees is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee Indemnitees in any such capacity, the Company shall indemnify the Indemnitee Indemnitees against all Expenses actually and reasonably incurred by the Indemnitee Indemnitees in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee Indemnitees acted in good faith and in a manner the Indemnitee Indemnitees reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee Indemnitees shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 Indemnitees is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company or a subsidiary by reason of the fact that the Indemnitee is or was an Agent agent of the CompanyCompany or a subsidiary, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceedingproceeding, provided the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders and, if applicable, the relevant subsidiary; except that no indemnification under this Section subsection 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company or a subsidiary by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which reasonable expenses that the Delaware Court of Chancery or such other court shall deem properproper pursuant to Section 10-854 of the Arizona Revised Statutes.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding brought by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee Indemnitee, or on the Indemnitee’s behalf, in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery of the State of Delaware (the “Delaware Court”) or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgement in its favor by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses actually and reasonably incurred by the Indemnitee in connection with the The investigation, defense, settlement settlement, or appeal of such Proceeding, provided proceeding if the Indemnitee 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; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of a duty to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.; and

Derivative Actions. If The Corporation shall indemnify to the Indemnitee is a fullest extent authorized or permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), any person who was or is a party or is threatened to be made a party to any Proceeding threatened, pending or completed action, suit or proceeding by or in the right of the Company Corporation to procure a judgment in its favor by reason of the fact that the Indemnitee such person is or was an Agent a director or officer of the CompanyCorporation, or by reason is or was serving at the request of anything done the Corporation as a director, officer or not done by trustee, of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the Indemnitee basis of such a proceeding is alleged action in an official capacity as a director or officer or in any such capacityother capacity while serving as a director, the Company shall indemnify the Indemnitee officer or trustee, against all Expenses expenses (including attorneys’ fees) actually and reasonably incurred by the Indemnitee such person in connection with the investigation, defense, defense or settlement or appeal of such Proceeding, provided the Indemnitee action or suit if such person acted in good faith and in a manner the Indemnitee such person reasonably believed to be in or not opposed to the best interests of the Company; Corporation, except that no indemnification under this Section 4(b) shall be made in with respect to any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable for negligence or misconduct in the performance of such person’s duty to the Company by a court of competent jurisdiction Corporation unless and only to the extent that the Delaware Court of Chancery of Delaware or the court in which such Proceeding action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee such person is fairly and reasonably entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery of Delaware or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, ; provided the Indemnitee that Xxxxxxxxxx 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction that the Indemnitee is liable to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party ------------------ party, or is threatened to be made a party party, to any Proceeding by or in the right of the Company Corporation to procure a judgment in its favor by reason of the fact that the Indemnitee is or was was, or is alleged to have been, an Agent of the CompanyCorporation, or by reason of anything done or not done, or alleged to have been done or not done, by the Indemnitee in any such capacitycapacity or otherwise at the request of the Corporation or of its officers, directors or stockholders, the Company Corporation shall indemnify the indemnify, defend and hold harmless Indemnitee against all Expenses Liabilities actually and reasonably incurred by the Indemnitee such person in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the if Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the CompanyCorporation; except provided, however, that no indemnification under this Section 4(b3(b) shall be made in respect to of any claim, issue or matter as to for which the Indemnitee shall have been finally such person is adjudged to be liable for gross negligence or willful misconduct in the performance of Indemnitee's duties to the Company by a court of competent jurisdiction unless Corporation, unless, and only to the extent that the Delaware Court of Chancery or that, the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability liability, but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which Liabilities as the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section subsection 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a ------------------ party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such Proceeding, and all other Expenses actually and reasonably incurred by the Indemnitee such person in connection with the investigation, defense, settlement or appeal of such Proceeding, provided Proceeding so long as the Indemnitee 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; except that no indemnification under this Section 4(b) subsection shall be made made, and Indemnitee shall repay all amounts previously advanced by the Company, in respect to of any claim, issue or matter as to for which the Indemnitee shall have been finally adjudged such person is judged in a final, non-appealable decision to be liable to the Company by a court of competent jurisdiction due to willful misconduct in the performance of such person's duties to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the that Indemnitee is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem properindemnity.

Derivative Actions. If the Indemnitee is a person who was or is a party or was or is threatened to be made a party to any Proceeding brought by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee while serving in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee Indemnitee, or on the Indemnitee’s behalf, in connection with the investigation, defense, settlement or appeal of such Proceeding, provided that the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to of any claim, issue or matter in such Proceeding as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery of the State of Delaware (the “Delaware Court”) or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement settlement, or appeal of such Proceedingproceeding, provided the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section Subsection 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Arizona Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Arizona Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company, unless either the Indemnitee’s act or failure to act constituted a breach of the Indemnitee’s fiduciary duties as a director or officer or the Indemnitee’s breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals thereform, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceeding, provided proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of such person's duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably reasonable entitled to indemnity for such amounts which amount that the Delaware Court of Chancery or such other court shall deem proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if (a) the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company, or (b) the Indemnitee, if a director or officer of the Company, did not act or fail to act in a manner that constituted a breach of the Indemnitee’s fiduciary duties as a director or officer or such Indemnitee breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals thereform, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceedingproceeding, provided the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is ------------------ a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee him in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Indemnitee proceeding if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in in, or not opposed to to, the best interests of the Company; except provided, however, that no indemnification under this Section 4(b) subsection -------- ------- shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper. Notwithstanding the preceding, it is the intention of the parties hereto that Indemnitee shall be indemnified to the full extent authorized or permitted by Delaware Law and, therefore, to the extent Delaware Law shall permit broader contractual indemnification, this contract shall be deemed amended to incorporate such broader indemnification.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Qualifying Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent officer or director of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Qualifying Proceeding, provided the Indemnitee 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; except that no indemnification under this Section 4(b3(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such Qualifying 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If Indemnitee shall be entitled to the rights of indemnification provided in this section 5 if, by reason of Indemnitee’s Corporate Status, Indemnitee is a person who was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee to procure a judgment in any such capacityits favor. Pursuant to this section 5, the Company shall indemnify the and defend Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on Indemnitee’s behalf in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the Proceeding if Indemnitee 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; except that . Notwithstanding the foregoing, no indemnification under this Section 4(b) against such Expenses shall be made in respect to of any claim, issue or matter in such Proceeding as to which the Indemnitee shall have been finally adjudged to be liable to the Company if applicable law prohibits such indemnification; provided that, if applicable law so permits, indemnification against Expenses shall nevertheless be made by a court of competent jurisdiction unless the Company in such event if and only to the extent that the Delaware Court of Chancery of the State of Delaware, or the court in which such Proceeding was shall have been brought or is pending, 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem properdetermine.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and any and all Expenses expenses and liabilities of any type whatsoever (including, but not limited to, judgments, damages, liabilities, losses, fines, excise taxes, penalties and amounts paid in settlement) actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of of, or otherwise related to, such Proceedingproceeding, provided if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in with respect to any claim, issue or matter as to which the Indemnitee shall have such person has been finally adjudged to be liable to the Company by a court of competent jurisdiction to have been liable to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine upon application that, despite the adjudication of liability liability, but in view of all the circumstances of the case, the Indemnitee such person is fairly and reasonably entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that Company, to procure a judgment in its favor because the Indemnitee is or was an Agent of the CompanyAgent, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee from against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement if he or appeal of such Proceeding, provided the Indemnitee she 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; except that no indemnification under this Section 4(b) subsection shall be made in respect to after the time for an appeal has expired, for any claimjudgment, issue or matter by a court of competent jurisdiction, as to which the Indemnitee shall have been finally adjudged to be liable to the Company by due to willful misconduct of a court culpable nature in the performance of competent jurisdiction the Indemnitee’s duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.;

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, then the Company shall indemnify the Indemnitee against all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceeding, provided PROVIDED that the Indemnitee acted in good faith and in a manner the Indemnitee he reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section 4(b4(c) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the The Company shall indemnify Indemnitee is a person who if he was or is a party or is threatened to be made a party to any Proceeding threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was an Agent of the Companyserving or acting in a Covered Capacity, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection accordance with Section 8 and amounts paid in settlement thereof if Indemnitee (i) is not liable pursuant to NRS 78.138 of the investigationNPCA, defense, settlement or appeal of such Proceeding, provided the Indemnitee (ii) acted in good faith faith, and (iii) in a manner the which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification under this Section 4(b) shall . Indemnification may not be made in respect to for any claim, issue or matter as to which the Indemnitee shall have has been finally adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the Company by a court of competent jurisdiction or for amounts paid in settlement to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding the action or suit was brought shall determine or other court of competent jurisdiction determines upon application that, despite the adjudication of liability but that in view of all the circumstances of the case, the Indemnitee person is fairly and reasonably entitled to indemnity for such amounts which Expenses as the Delaware Court of Chancery or such other court shall deem deems proper.

Derivative Actions. If the Indemnitee is a person who was or is a party to, or is threatened to be made a party to to, any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacitythe Indemnitee's capacity as an agent of the Company, then, subject to the provisions of Section 8 of this Agreement and the exceptions set forth in Section 9, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of of, or being a witness in or participating in (including on appeal) or preparing to defend, to be a witness in or to participate in, such Proceeding, provided the proceeding if Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no indemnification under this Section 4(b) subsection 4.2 shall be made in respect to of any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction jurisdiction, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company Verigy US to procure a judgment in its favor by reason of the fact that the Indemnitee he or she is or was serving Verigy US or an Agent Affiliate of the CompanyVerigy US as an Indemnifiable Person, or by reason of anything done or not done by the Indemnitee in any such capacitycapacity as an Indemnifiable Person, the Company shall indemnify the Indemnitee or by reason of an Indemnifiable Event, against any and all Expenses actually and reasonably Other Liabilities incurred by the Indemnitee in connection with the inquiry, investigation, defense, settlement settlement, or appeal of such Proceeding, provided the Proceeding if Indemnitee acted in good faith and in a manner the Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the CompanyVerigy US; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction Verigy US, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper; provided, however, that in the event that Indemnitee shall be adjudged to be liable to Verigy US, Verigy US shall use its best efforts to obtain a ruling of the court in which the Proceeding is brought to the effect that Indemnitee is nevertheless fairly and reasonably entitled to indemnification to the greatest extent possible.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided the proceeding if Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of Indemnitee’s duty to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.; and

Derivative Actions. If the The Company shall indemnify Indemnitee if Indemnitee is a person who was or is a party or who is threatened to be made a party to any Proceeding proceeding by or in the right of the Company or of any subsidiary of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he is or was an Agent agent of the Company or of any subsidiary of the Company, or by reason of anything done or not done by the Indemnitee him in any such capacity, to the Company shall indemnify the Indemnitee fullest extent permitted by law, against any amounts paid in settlement of any such proceeding and all Expenses expenses actually and reasonably incurred by the Indemnitee him in connection with such proceeding (including, without limitation, the investigation, defense, settlement settlement, or appeal of such Proceeding, provided the Indemnitee proceeding) if he acted in good faith and in a manner the Indemnitee he reasonably believed to be in or not opposed to the best interests of the CompanyCompany or its subsidiaries; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company or its subsidiaries by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his duty to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding threatened, pending or completed action or suit by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent a director or officer of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, then the Company shall indemnify the Indemnitee against all Expenses expenses (including attorneys’ fees) actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement settlement, or appeal of such Proceeding, provided PROVIDED that the Indemnitee acted in good faith and in a manner the Indemnitee he reasonably believed to be in or not opposed to the best interests of the CompanyCompany and its stockholders; except that no indemnification under this Section 4(b4(c) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the Company, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, ; provided the Indemnitee that Ixxxxxxxxx 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; except that no indemnification under this Section 4(b) shall be made in respect to any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction that the Indemnitee is liable to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding proceeding by or in the right of the Predecessor or the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was an Agent agent of the CompanyPredecessor, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any and all Expenses actually expenses and reasonably liabilities incurred by the Indemnitee in connection with the investigation, defense, settlement or appeal of such Proceeding, provided proceeding if (a) the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Predecessor or (b) the Indemnitee, if a director or an officer of the Company, did not act or fail to act in a manner that constituted a breach of the Indemnitee’s fiduciary duties as a manager or an officer or such Indemnitee breach of those duties involved intentional misconduct, fraud, or a knowing violation of law; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue issue, or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction, after the exhaustion of all appeals therefrom, to be liable to the Company by a court of competent jurisdiction Predecessor or for amounts paid in settlement to the Predecessor, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding proceeding was brought shall determine or another court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably reasonable entitled to indemnity for such amounts which expenses as the Delaware Court of Chancery or such other court shall deem deems proper.; and

Derivative Actions. If the Indemnitee is a person who was or ------------------ is a party or is threatened to be made a party to any Proceeding by or in the right of the Company by reason of the fact that the Indemnitee is or was an Agent of the CompanyAgent, or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee against any amounts paid in settlement of any such Proceeding, and all other Expenses actually and reasonably incurred by the Indemnitee such person in connection with the investigation, defense, settlement or appeal of such Proceeding, provided Proceeding so long as the Indemnitee 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; except that no indemnification under this Section 4(b) subsection shall be made made, and Indemnitee shall repay all amounts previously advanced by the Company, in respect to of any claim, issue or matter as to for which the Indemnitee shall have been finally adjudged such person is judged in a final, non- appealable decision to be liable to the Company by a court of competent jurisdiction due to willful misconduct in the performance of such person's duties to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the that Indemnitee is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem properindemnity.

Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee he or she is or was an Agent serving the Company or a Subsidiary or Affiliate of the CompanyCompany as an Indemnifiable Person, or by reason of anything done or not done by the Indemnitee in any such capacitycapacity as an Indemnifiable Person, the Company shall indemnify the Indemnitee or by reason of an Indemnifiable Event, against any and all Expenses actually and reasonably Other Liabilities incurred by the Indemnitee in connection with the inquiry, investigation, defense, settlement settlement, or appeal of such Proceeding, provided the Proceeding if Indemnitee acted in good faith and in a manner the Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification under this Section 4(b) subsection shall be made in respect to of any claim, issue or matter as to which the Indemnitee such person shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such 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 such person is fairly and reasonably entitled to indemnity for such amounts which the Delaware Court of Chancery or such other court shall deem proper; provided, however, that in the event that Indemnitee shall be adjudged to be liable to the Company, the Company shall use its best efforts to obtain a ruling of the court in which the Proceeding is brought to the effect that Indemnitee is nevertheless fairly and reasonably entitled to indemnification to the greatest extent possible.

Derivative Actions. If the Indemnitee is a person The corporation shall indemnify any Officer, and shall have power exercisable by its Board of Directors as provided in Section 5 hereto to indemnify any Employee, who was or is a party or is threatened to be made a party to any Proceeding threatened, pending or completed action or suit by or in the right of the Company this corporation to procure a judgment in its favor by reason of the fact that the Indemnitee person is or was an Agent of the Company, Officer or by reason of anything done or not done by the Indemnitee in any such capacity, the Company shall indemnify the Indemnitee Employee against all Expenses expenses (including attorneys' fees) actually and reasonably incurred by the Indemnitee person in connection with the investigation, defense, defense or settlement or appeal of such Proceeding, provided action or suit if the Indemnitee Claimant acted in good faith and in a manner the Indemnitee Claimant reasonably believed to be in or not opposed to the best interests of the Company; this corporation and except that no indemnification under this Section 4(b) shall be made in respect to of any claim, issue or matter as to which the Indemnitee such Claimant shall have been finally adjudged to be liable to the Company by a court of competent jurisdiction this corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee such Claimant is fairly and reasonably entitled to indemnity for such amounts expenses which the Delaware Court of Chancery or such other court shall deem proper.