exhibit109.htm


     

    Exhibit
      10.9

    


    INDEMNIFICATION
      AGREEMENT

     

    This
      Agreement is made as of the _____ day of _______ 2005, by and between Tier
      Technologies, Inc., a Delaware corporation (the “Corporation”), and
      _______________ (the “Indemnitee”), an officer or key employee of the
      Corporation.

     

    WHEREAS,
      it is essential to the Corporation to retain and attract as officers and key
      employees the most capable persons available, and

     

    WHEREAS,
      the Corporation succeeded to all of the business, properties, assets and
      liabilities of its sole stockholder, Tier Technologies, Inc., a California
      corporation (“Tier California”), by means of a merger (the “Re-incorporation
      Merger”) of Tier California with and into the Corporation, and

     

    WHEREAS,
      Tier California and the Indemnitee previously entered into an indemnification
      agreement governed by California law (the “California Agreement”),
      and

     

    WHEREAS,
      as of the effective date of the Re-incorporation Merger, the Corporation and
      the
      Indemnitee desire that this Agreement shall govern events occurring on or after
      the effective date of the Re-incorporation Merger and the California Agreement
      shall remain in full force and effect only with respect to events occurring
      prior to the effective date of the Re-incorporation Merger, and

     

    WHEREAS,
      the Corporation desires the Indemnitee to serve, or continue to serve, as a
      director or officer of the Corporation.

     

    NOW
      THEREFORE, the Corporation and the Indemnitee do hereby agree as
      follows:

     

    1.    Agreement
      to Serve.  The Indemnitee agrees to serve or continue to serve as
      a director or officer of the Corporation for so long as the Indemnitee is duly
      elected or appointed or until such time as the Indemnitee tenders a resignation
      in writing.

     

    2.    Definitions.  As
      used in this Agreement:

     

     (a)  The
      term “Proceeding” shall include any threatened, pending or completed action,
      suit, arbitration, alternative dispute resolution proceeding, administrative
      hearing or other proceeding, whether brought by or in the right of the
      Corporation or otherwise and whether of a civil, criminal, administrative or
      investigative nature, and any appeal therefrom.

     

     (b)  The
      term “Corporate Status” shall mean the status of a person who is or was a
      director or officer of the Corporation, or is or was serving, or has agreed
      to
      serve, at the request of the Corporation, as a director, officer, partner,
      trustee, member, employee or agent of another corporation, partnership, joint
      venture, trust, limited liability company or other enterprise.

     

     (c)  The
      term “Expenses” shall include, without limitation, attorneys’ fees, retainers,
      court costs, transcript costs, fees and expenses of experts, travel expenses,
      duplicating 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
costs,
        printing and binding costs, telephone charges, postage, delivery service
        fees
        and other disbursements or expenses of the types customarily incurred in
        connection with investigations, judicial or administrative proceedings or
        appeals, but shall not include the amount of judgments, fines or penalties
        against Indemnitee or amounts paid in settlement in connection with such
        matters.

    

     

     (d)  References
      to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee
      benefit plan; references to “serving at the request of the Corporation” shall
      include any service as a director, officer, employee or agent of the Corporation
      which imposes duties on, or involves services by, such director, officer,
      employee, or agent with respect to an employee benefit plan, its participants,
      or beneficiaries; and a person who acted in good faith and in a manner such
      person reasonably believed to be in the interests of the participants and
      beneficiaries of an employee benefit plan shall be deemed to have acted in
      a
      manner “not opposed to the best interests of the Corporation” as referred to in
      this Agreement.

     

    3.    Indemnification
      in Third-Party Proceedings.  Subject to Paragraph 26 of this
      Agreement, the Corporation shall indemnify the Indemnitee in accordance with
      the
      provisions of this Paragraph 3 if the Indemnitee was or is a party to or
      threatened to be made a party to or otherwise involved in any Proceeding (other
      than a Proceeding by or in the right of the Corporation to procure a judgment
      in
      its favor) by reason of the Indemnitee’s Corporate Status or by reason of any
      action alleged to have been taken or omitted in connection therewith, against
      all Expenses, judgments, fines, penalties and amounts paid in settlement
      actually and reasonably incurred by or on behalf of the Indemnitee in connection
      with such Proceeding, if the Indemnitee acted in good faith and in a manner
      which the Indemnitee reasonably believed to be in, or not opposed to, the best
      interests of the Corporation and, with respect to any criminal Proceeding,
      had
      no reasonable cause to believe that his or her conduct was
      unlawful.  The termination of any Proceeding by judgment, order,
      settlement, conviction or upon a plea of nolocontendere or its
      equivalent, shall not, of itself, create a presumption that the Indemnitee
      did
      not act in good faith and in a manner which the Indemnitee reasonably believed
      to be in, or not opposed to, the best interests of the Corporation, and, with
      respect to any criminal Proceeding, had reasonable cause to believe that his
      or
      her conduct was unlawful.

     

    4.    Indemnification
      in Proceedings by or in the Right of the Corporation.  Subject to
      Paragraph 26 of this Agreement, the Corporation shall indemnify the Indemnitee
      in accordance with the provisions of this Paragraph 4 if the Indemnitee was
      or is a party to or threatened to be made a party to or otherwise involved
      in
      any Proceeding by or in the right of the Corporation to procure a judgment
      in
      its favor by reason of the Indemnitee’s Corporate Status or by reason of any
      action alleged to have been taken or omitted in connection therewith, against
      all Expenses actually and reasonably incurred and, to the extent permitted
      by
      law, amounts paid in settlement by or on behalf of the Indemnitee in connection
      with such Proceeding, if the Indemnitee acted in good faith and in a manner
      which the Indemnitee reasonably believed to be in, or not opposed to, the best
      interests of the Corporation, except that no indemnification shall be made
      under
      this Paragraph 4 in respect of any claim, issue, or matter as to which the
      Indemnitee shall have been adjudged to be liable to the Corporation, unless,
      and
      only to the extent, that the Court of Chancery of Delaware or the court in
      which
      such action or suit was brought shall determine upon application that, despite
      the adjudication of such liability but in view of all the circumstances of
      

    
      
        
        

      

      
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the
        case, the Indemnitee is fairly and reasonably entitled to indemnity for such
        Expenses as the Court of Chancery or such other court shall deem
        proper.

    

     

    5.    Exceptions
      to Right of Indemnification.  Notwithstanding anything to the
      contrary in this Agreement, except as set forth in Paragraph 10, the
      Corporation shall not indemnify the Indemnitee in connection with a Proceeding
      (or part thereof) initiated by the Indemnitee unless the initiation thereof
      was
      approved by the Board of Directors of the
      Corporation.  Notwithstanding anything to the contrary in this
      Agreement, the Corporation shall not indemnify the Indemnitee to the extent
      the
      Indemnitee is reimbursed from the proceeds of insurance or otherwise receives
      payment of any amounts indemnifiable hereunder under any contract, agreement
      or
      otherwise, and in the event the Corporation makes any indemnification payments
      to the Indemnitee and the Indemnitee is subsequently reimbursed from the
      proceeds of insurance or otherwise receives payment of any amounts indemnifiable
      hereunder under any contract, agreement or otherwise, the Indemnitee shall
      promptly refund such indemnification payments to the Corporation to the extent
      of such insurance reimbursement or other payments.

     

    6.    Indemnification
      of Expenses of Successful Party.  Subject to Paragraph 26 of this
      Agreement, but notwithstanding any other provision of this Agreement, to the
      extent that the Indemnitee has been successful, on the merits or otherwise,
      in
      defense of any Proceeding or in defense of any claim, issue or matter therein,
      the Indemnitee shall be indemnified against all Expenses incurred by or on
      behalf of the Indemnitee in connection therewith.  Without limiting
      the foregoing, if any Proceeding or any claim, issue or matter therein is
      disposed of, on the merits or otherwise (including a disposition without
      prejudice), without (i) the disposition being adverse to the Indemnitee,
      (ii) an adjudication that the Indemnitee was liable to the Corporation,
      (iii) a plea of guilty or nolo contendere by the Indemnitee,
      (iv) an adjudication that the Indemnitee did not act in good faith and in a
      manner the Indemnitee reasonably believed to be in or not opposed to
      the best interests of the Corporation, and (v) with respect to any criminal
      proceeding, an adjudication that the Indemnitee had reasonable cause to believe
      his or her conduct was unlawful, the Indemnitee shall be considered for the
      purposes hereof to have been wholly successful with respect
      thereto.

     

    7.    Notification
      and Defense of Claim.

     

               
(a) Indemnitee
      shall
      notify the Corporation promptly upon being served with or receiving any summons,
      citation, subpoena, complaint, indictment, information, notice, request or
      other
      document relating to any Proceeding which may result in the right to
      indemnification or the advance of Expenses hereunder; provided, however, that
      the failure to give any such notice shall not disqualify Indemnitee from the
      right, or otherwise affect in any manner any right of Indemnitee, to
      indemnification or the advance of Expenses under this Agreement unless the
      Corporation’s ability to defend in such Proceeding or to obtain proceeds under
      any insurance policy is materially and adversely prejudiced thereby, and then
      only to the extent the Corporation is thereby actually so
      prejudiced.

     

            
      (b) Subject
      to the provisions of the last sentence of this Section 7(b) and of Section
      7(c)
      below, the Corporation shall have the right to defend Indemnitee in any
      Proceeding which may give rise to indemnification hereunder; provided, however,
      that the Corporation shall notify Indemnitee of any such decision to defend
      within 15 calendar days following receipt of notice of any such Proceeding
      under
      Section 7(a) above.  After notice from the Corporation to


    
      
        
        

      

      
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the
        Indemnitee of its election so to defend the Indemnitee, the Corporation shall
        not be liable to the Indemnitee for any legal or other expenses subsequently
        incurred by the Indemnitee in connection with such Proceeding, other than
        as
        provided in the last sentence of this Section 7(b) and in Section 7(c)
        below.  The Corporation shall not, without the prior written consent
        of Indemnitee, which shall not be unreasonably withheld or delayed, consent
        to
        the entry of any judgment against Indemnitee or enter into any settlement
        or
        compromise which (i) includes an admission of fault of Indemnitee or (ii)
        does
        not include, as an unconditional term thereof, the full release of Indemnitee
        from all liability in respect of such Proceeding, which release shall be
        in form
        and substance reasonably satisfactory to Indemnitee.

    

     

               
(c) Notwithstanding
      the provisions of Section 7(b) above, if in a Proceeding to which Indemnitee
      is
      a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
      concludes, based upon advice of counsel approved by the Corporation, which
      approval shall not be unreasonably withheld, that he may have separate defenses
      or counterclaims to assert with respect to any issue which may not be consistent
      with the Corporation in such Proceeding, (ii) Indemnitee reasonably concludes,
      based upon advice of counsel approved by the Corporation, which approval shall
      not be unreasonably withheld, that an actual or apparent conflict of interest
      or
      potential conflict of interest exists between Indemnitee and the Corporation,
      or
      (iii) if the Corporation fails to assume the defense of such Proceeding in
      a
      timely manner, Indemnitee shall be entitled to be represented by separate legal
      counsel of Indemnitee’s choice, subject to the prior approval of the
      Corporation, which shall not be unreasonably withheld, at the expense of the
      Corporation.

     

    8.    Advancement
      of Expenses.  Subject to the provisions of Paragraphs 9 and
      26 of this Agreement, in the event that the Corporation does not assume the
      defense pursuant to Paragraph 7 of this Agreement of any Proceeding of
      which the Corporation receives notice under this Agreement, any Expenses
      incurred by or on behalf of the Indemnitee in defending such Proceeding shall
      be
      paid by the Corporation in advance of the final disposition of such Proceeding;
      provided, however, that notwithstanding anything herein to the
      contrary the payment of such Expenses incurred by or on behalf of the Indemnitee
      in advance of the final disposition of such Proceeding shall be made only upon
      receipt of an undertaking, in substantially the form set forth on Exhibit
      A hereto, by or on behalf of the Indemnitee to repay all amounts so advanced
      in the event that it shall ultimately be determined that the Indemnitee is
      not
      entitled to be indemnified by the Corporation as authorized in this
      Agreement.  Such undertaking shall be accepted without reference to
      the financial ability of the Indemnitee to make repayment.

     

    9.    Procedure
      for Indemnification.  In order to obtain indemnification or
      advancement of Expenses pursuant to Paragraphs 3, 4, 6 or 8 of this Agreement,
      the Indemnitee shall submit to the Corporation a written request.  Any
      such indemnification or advancement of Expenses shall be made promptly, and
      in
      any event within 30 days after receipt by the Corporation of the written
      request of Indemnitee, unless the Corporation, pursuant to the last sentence
      of
      this Section 9, determines within such 30-day period that Indemnitee did not
      meet the applicable standard of conduct set forth in Paragraph 3 or 4, as the
      case may be.  Such determinations as to indemnification, the
      advancement of Expenses and any determination that advanced Expenses must be
      repaid to the Corporation, shall be made in each instance (a) by a majority
      vote of the directors of the Corporation consisting of persons who are not
      at
      that time parties to the Proceeding (“disinterested directors”), whether or not
      a quorum, (b) by a committee of disinterested directors designated by a
      majority vote of disinterested directors, whether or not 

    
      
        
        

      

      
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a
        quorum, (c) if there are no disinterested directors, or if the
        disinterested directors so direct, by independent legal counsel (who may,
        to the
        extent permitted by applicable law, be regular legal counsel to the Corporation)
        in a written opinion, or (d) by the stockholders of the
        Corporation.

    

     

    10.    Remedies.  The
      right to indemnification or advancement of Expenses as provided by this
      Agreement shall be enforceable by the Indemnitee in any court of competent
      jurisdiction.  Unless otherwise required by law, the burden of proving
      that indemnification or the advancement of Expenses is not
      appropriate shall be on the Corporation.  Neither the failure of the
      Corporation to have made a determination prior to the commencement of such
      action that indemnification is proper in the circumstances because the
      Indemnitee has met the applicable standard of conduct, nor an actual
      determination by the Corporation pursuant to Paragraph 9 that the
      Indemnitee has not met such applicable standard of conduct, shall be a defense
      to the action or create a presumption that the Indemnitee has not met the
      applicable standard of conduct.  The Indemnitee’s expenses (of the
      type described in the definition of “Expenses” in Paragraph 2(c))
      reasonably incurred in connection with successfully establishing the
      Indemnitee’s right to indemnification, in whole or in part, in any such
      Proceeding shall also be indemnified by the Corporation.

     

    11.    Partial
      Indemnification.  If the Indemnitee is entitled under any
      provision of this Agreement to indemnification by the Corporation for some
      or a
      portion of the Expenses, judgments, fines, penalties or amounts paid in
      settlement actually and reasonably incurred by or on behalf of the Indemnitee
      in
      connection with any Proceeding but not, however, for the total amount thereof,
      the Corporation shall nevertheless indemnify the Indemnitee for the portion
      of
      such Expenses, judgments, fines, penalties or amounts paid in settlement to
      which the Indemnitee is entitled.

     

    12.    Subrogation.  In
      the event of any payment under this Agreement, the Corporation shall be
      subrogated to the extent of such payment to all of the rights of recovery of
      the
      Indemnitee, who shall execute all papers required and take all action necessary
      to secure such rights, including execution of such documents as are necessary
      to
      enable the Corporation to bring suit to enforce such rights.

     

    13.    Term
      of Agreement.  This Agreement shall commence upon the effective
      date of the Re-incorporation Merger, and shall continue until and terminate
      upon
      the later of (a) six years after the date that the Indemnitee shall have ceased
      to serve as a director or officer of the Corporation or, at the request of
      the
      Corporation, as a director, officer, partner, trustee, member, employee or
      agent
      of another corporation, partnership, joint venture, trust, limited liability
      company or other enterprise or (b) the final termination of all Proceedings
      pending on the date set forth in clause (a) in respect of which the Indemnitee
      is granted rights of indemnification or advancement of Expenses hereunder and
      of
      any proceeding commenced by the Indemnitee pursuant to Paragraph 10 of this
      Agreement relating thereto.

     

    14.    Indemnification
      Hereunder Not Exclusive.  The indemnification and advancement of
      Expenses provided by this Agreement shall not be deemed exclusive of any other
      rights to which the Indemnitee may be entitled under the Certification of
      Incorporation, the By-Laws, any other agreement, any vote of stockholders or
      disinterested directors, the General Corporation Law of Delaware, any other
      law
      (common or statutory), or otherwise, both as to action in the Indemnitee’s
      Corporate Status and as to action in another capacity while holding office
      for
      the 

    
      
        
        

      

      
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Corporation.  Nothing
        contained in this Agreement shall be deemed to prohibit the Corporation from
        purchasing and maintaining insurance, at its expense, to protect itself or
        the
        Indemnitee against any expense, liability or loss incurred by it or the
        Indemnitee in any such capacity, or arising out of the Indemnitee’s status as
        such, whether or not the Indemnitee would be indemnified against such expense,
        liability or loss under this Agreement.

    

     

    15.    No
      Special Rights.  Nothing herein shall confer upon the Indemnitee
      any right to continue to serve as an officer or director of the Corporation
      for
      any period of time or at any particular rate of compensation.

     

    16.    Savings
      Clause.  If this Agreement or any portion thereof shall be
      invalidated on any ground by any court of competent jurisdiction, then the
      Corporation shall nevertheless indemnify the Indemnitee as to Expenses,
      judgments, fines, penalties and amounts paid in settlement with respect to
      any
      Proceeding to the full extent permitted by any applicable portion of this
      Agreement that shall not have been invalidated and to the fullest extent
      permitted by applicable law.

     

    17.    Counterparts.  This
      Agreement may be executed in any number of counterparts, each of which shall
      constitute the original.

     

    18.    Successors
      and Assigns.  This Agreement shall be binding upon the Corporation
      and its successors and assigns, and shall inure to the benefit of the estate,
      heirs, executors, administrators and personal representatives of the
      Indemnitee.

     

    19.    Headings.  The
      headings of the paragraphs of this Agreement are inserted for convenience only
      and shall not be deemed to constitute part of this Agreement or to affect the
      construction thereof.

     

    20.    Modification
      and Waiver.  This Agreement may be amended from time to time to
      reflect changes in Delaware law or for other reasons.  No supplement,
      modification or amendment of this Agreement shall be binding unless executed
      in
      writing by both of the parties hereto.  No waiver of any of the
      provisions of this Agreement shall be deemed or shall constitute a waiver of
      any
      other provision hereof nor shall any such waiver constitute a continuing
      waiver.

     

    21.    Notices.  All
      notices, requests, demands and other communications hereunder shall be in
      writing and shall be deemed to have been given (i) when delivered by hand
      or (ii) if mailed by certified or registered mail with postage prepaid, on
      the third day after the date on which it is so mailed:

     

      
      (a)  if
      to the Indemnitee, to:[  ]

     

      
      (b)  if
      to the Corporation, to:

     

    Tier
      Technologies, Inc

    10780
      Parkridge Boulevard, 4th Floor

    Reston,
      Virginia 20191

    Attention:  General
      Counsel

     

    
      
        
        

      

      
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    Telephone:
      571-382-1090

    Fax:
      571-382-1385

    


    or
      to such other address as may have been furnished to the Indemnitee by the
      Corporation or to the Corporation by the Indemnitee, as the case may
      be.

     

    22.     Applicable
      Law.  This Agreement shall be governed by, and construed and
      enforced in accordance with, the laws of the State of Delaware.  The
      Indemnitee may elect to have the right to indemnification or reimbursement
      or
      advancement of Expenses interpreted on the basis of the applicable law in effect
      on the date hereof, at the time of the occurrence of the event or events giving
      rise to the applicable Proceeding, to the extent permitted by law, or in effect
      at the time such indemnification or reimbursement or advancement of Expenses
      is
      sought.  Such election shall be made, by a notice in writing to the
      Corporation, at the time indemnification or reimbursement or advancement of
      Expenses is sought; provided, however, that if no such notice is
      given, and if the General Corporation Law of Delaware is amended, or other
      Delaware law is enacted, to permit further indemnification of the directors
      and
      officers, then the Indemnitee shall be indemnified to the fullest extent
      permitted under the General Corporation Law, as so amended, or by such other
      Delaware law, as so enacted.

     

    23.     Enforcement.  The
      Corporation expressly confirms and agrees that it has entered into this
      Agreement in order to induce the Indemnitee to continue to serve as an officer
      or director of the Corporation, and acknowledges that the Indemnitee is relying
      upon this Agreement in continuing in such capacity.

     

    24.     Entire
      Agreement.  This Agreement sets forth the entire agreement of the
      parties hereto in respect of the subject matter contained herein and supercedes
      all prior agreements, whether oral or written, by any officer, employee or
      representative of any party hereto in respect of the subject matter contained
      herein; and any prior agreement of the parties hereto in respect of the subject
      matter contained herein is hereby terminated and cancelled.  For
      avoidance of doubt, the parties confirm that the foregoing does not apply to
      or
      limit the Indemnitee’s rights under Delaware law or the Corporation’s
      Certificate of Incorporation or By-Laws.

     

    25.     Consent
      to Suit.  In the case of any dispute under or in connection with
      this Agreement, the Indemnitee may only bring suit against the Corporation
      in
      the Court of Chancery of the State of Delaware.  The Indemnitee hereby
      consents to the exclusive jurisdiction and venue of the courts of the State
      of
      Delaware, and the Indemnitee hereby waives any claim the Indemnitee may have
      at
      any time as to forum non conveniens with respect to such venue.  The
      Corporation shall have the right to institute any legal action arising out
      of or
      relating to this Agreement in any court of competent
      jurisdiction.  Any judgment entered against either of the parties in
      any proceeding hereunder may be entered and enforced by any court of competent
      jurisdiction.

     

    26.     Application
      of the California Agreement.  Upon the effective date of the
      Re-incorporation Merger, the California Agreement shall cease to govern with
      respect to the Indemnitee’s Corporate Status or any action alleged to have been
      taken or omitted in connection therewith (collectively, the “Indemnifiable
      Events”) on or after the effective date of the Re-incorporation Merger and shall
      remain in full force and effect only with respect to Indemnifiable Events that
      occurred prior to the effective date of the Re-incorporation
      Merger.  Upon the 

    
      
        
        

      

      
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effective
        date of the Re-incorporation Merger, this Agreement shall govern all
        Indemnifiable Events occurring on or after such effective
        date.

    

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed as of the day and year first above written.

     

    
      	
              Attest:

            	
              TIER
                TECHNOLOGIES, INC.

            
	
              By:      __________________________

            	
              By:  ________________________

            
	
              Name:
                __________________________

            	
              Name:  ________________________

            
	 	
              Title:    ________________________

            
	 	
              INDEMNITEE:

            
	 	
              ______________________________

              Name:  ________________________

            


    

    


     

    


     


    
      
        
        

      

      
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    EXHIBIT
      A

     

    FORM
      OF UNDERTAKING TO REPAY EXPENSES ADVANCED

     

    The
      Board of Directors of Tier Technologies, Inc.

    


    Re:  Undertaking
      to Repay Expenses Advanced

    


    Ladies
      and Gentlemen:

    


    This
      undertaking is being provided pursuant to that certain Indemnification Agreement
      dated the ___ day of ______________, 200__, by and between Tier Technologies,
      Inc. (the "Company") and the undersigned Indemnitee (the "Indemnification
      Agreement"), pursuant to which I am entitled to advance of expenses in
      connection with [Description of Proceeding] (the
      "Proceeding").

     

    Terms
      used herein and not otherwise defined shall have the meanings specified in
      the
      Indemnification Agreement.

     

    I
      am subject to the Proceeding by reason of my Corporate Status or by reason
      of
      alleged actions or omissions by me in such capacity.  In consideration
      of the advance of Expenses by the Company in connection with the Proceeding
      (the
      "Advanced Expenses"), I hereby agree that if, in connection with the Proceeding,
      it is ultimately determined that I am not entitled to be indemnified, then
      I
      shall promptly reimburse the portion of the Advanced Expenses relating to the
      claims, issues or matters in the Proceeding as to which the foregoing findings
      have been established and which have not been successfully resolved as described
      in Section 11 of the Indemnification Agreement.  To the extent that
      Advanced Expenses do not relate to a specific claim, issue or matter in the
      Proceeding, I agree that such Expenses shall be allocated on a reasonable
      basis.

     

    IN
      WITNESS WHEREOF, I have executed
      this Undertaking on this ___ day of ____________________, 200__.

    


    


     

    WITNESS:

     

    ____________________________                                                                                                                     _____________________________(SEAL)