AND DETERMINATION BY THE COMPANY TO THAT EFFECT.
THE NOTICE SHALL
DESCRIBE THE MATTER GIVING RISE TO THE REQUEST AND BE ACCOMPANIED BY ALL
APPROPRIATE SUPPORTING DOCUMENTATION REASONABLY AVAILABLE TO INDEMNITEE.
(B)
DETERMINATION AND PAYMENT.
THE COMPANY SHALL MAKE A DETERMINATION
ABOUT INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION IN THE SPECIFIC CASE NO LATER
THAN 90 DAYS AFTER RECEIPT OF INDEMNITEE'S REQUEST.
IN MAKING THAT
DETERMINATION, THE PERSON OR PERSONS MAKING THE DETERMINATION SHALL PRESUME THAT
INDEMNITEE MET ANY APPLICABLE STANDARD OF CONDUCT REQUIRED FOR INDEMNIFICATION,
UNLESS THE PERSON OR PERSONS MAKING THE DETERMINATION SHALL HAVE REASONABLY
DETERMINED, AFTER CONSULTATION WITH COUNSEL, THAT INDEMNITEE DID NOT MEET THAT
STANDARD.
THE DETERMINATION SHALL BE MADE BY THE BOARD OF DIRECTORS BY A
MAJORITY VOTE OF A QUORUM CONSISTING OF DISINTERESTED DIRECTORS.
IF SUCH A
QUORUM IS NOT OBTAINABLE, OR, EVEN IF OBTAINABLE, A QUORUM OF DISINTERESTED
DIRECTORS SO DIRECTS, THE DETERMINATION SHALL BE MADE BY INDEPENDENT COUNSEL IN
A WRITTEN OPINION OBTAINED AT THE COMPANY'S EXPENSE.
IF THE PERSON OR PERSONS
EMPOWERED TO MAKE THE DETERMINATION EITHER:
(I) AFFIRMATIVELY MAKES A
DETERMINATION OF INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION OR (II) FAILS TO
MAKE ANY DETERMINATION AT ALL WITHIN THE 90-DAY PERIOD, INDEMNIFICATION SHALL BE
CONSIDERED AS AUTHORIZED AND PROPER IN THE CIRCUMSTANCES, AND INDEMNITEE SHALL
BE ABSOLUTELY ENTITLED TO SUCH INDEMNIFICATION, AND SHALL RECEIVE PAYMENT AS
PROMPTLY AS PRACTICABLE, IN THE ABSENCE OF ANY MISREPRESENTATION OF A MATERIAL
FACT BY INDEMNITEE IN THE REQUEST FOR INDEMNIFICATION, OR A SPECIFIC
DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT ALL OR ANY PART OF SUCH
INDEMNIFICATION IS PROHIBITED BY APPLICABLE LAW.
IF THE PERSON OR PERSONS
EMPOWERED TO MAKE THE DETERMINATION FIND THAT THE INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION, THE INDEMNITEE SHALL HAVE THE RIGHT TO APPLY TO A COURT OF
COMPETENT JURISDICTION FOR THE PURPOSE OF ENFORCING INDEMNITEE'S RIGHT TO
INDEMNIFICATION PURSUANT TO THIS AGREEMENT.
THE TERMINATION OF ANY PROCEEDING
BY JUDGMENT, ORDER, SETTLEMENT, ARBITRATION AWARD, CONVICTION OR UPON A PLEA OF
NOLO CONTENDERE OR ITS EQUIVALENT SHALL NOT, OF ITSELF, CREATE A PRESUMPTION
THAT INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A MANNER WHICH HE REASONABLY
BELIEVED TO BE IN THE BEST INTERESTS OF THE COMPANY.
(C)
ADVANCEMENT OF EXPENSES.
IF SO REQUESTED IN A WRITING BY
INDEMNITEE ACCOMPANIED BY APPROPRIATE SUPPORTING DOCUMENTATION, THE COMPANY
SHALL, WITHIN TEN DAYS AFTER RECEIPT OF THE REQUEST, ADVANCE FUNDS FOR THE
PAYMENT OF EXPENSES, WHETHER THAT REQUEST IS MADE BEFORE OR AFTER THE FINAL
DISPOSITION OF A PROCEEDING (INCLUDING, WITHOUT LIMITATION, ANY CRIMINAL
PROCEEDING OR ANY PROCEEDING BROUGHT BY OR IN THE RIGHT OF THE COMPANY OR ITS
SHAREHOLDERS), UNLESS THERE HAS BEEN A FINAL DETERMINATION THAT INDEMNITEE IS
NOT ENTITLED TO INDEMNIFICATION FOR THOSE EXPENSES.
IF REQUIRED BY LAW AT THE
TIME OF THE ADVANCE, THE PAYMENT OF THE ADVANCE SHALL BE CONDITIONED UPON THE
RECEIPT FROM INDEMNITEE OF AN UNDERTAKING (WHICH NEED NOT BE SECURED) TO REPAY
THE ADVANCE TO THE EXTENT THAT IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS
NOT ENTITLED