IN WRITING UPON BEING
SERVED WITH ANY SUMMONS, CITATION, SUBPOENA, COMPLAINT, INDICTMENT, INFORMATION
OR OTHER DOCUMENT RELATING TO ANY PROCEEDING OR MATTER WHICH MAY BE SUBJECT TO
INDEMNIFICATION, HOLD HARMLESS OR EXONERATION RIGHTS, OR ADVANCEMENT OF EXPENSES
COVERED HEREUNDER.
THE FAILURE OF INDEMNITEE TO SO NOTIFY THE COMPANY SHALL NOT
RELIEVE THE COMPANY OF ANY OBLIGATION WHICH IT MAY HAVE TO THE INDEMNITEE UNDER
THIS AGREEMENT, OR OTHERWISE.
(B)
INDEMNITEE MAY DELIVER TO THE COMPANY A WRITTEN APPLICATION TO INDEMNIFY
AND HOLD HARMLESS INDEMNITEE IN ACCORDANCE WITH THIS AGREEMENT.
SUCH
APPLICATION(S) MAY BE DELIVERED FROM TIME TO TIME AND AT SUCH TIME(S) AS
INDEMNITEE DEEMS APPROPRIATE IN HIS OR HER SOLE DISCRETION.
FOLLOWING SUCH A
WRITTEN APPLICATION FOR INDEMNIFICATION BY INDEMNITEE, THE INDEMNITEE'S
ENTITLEMENT TO INDEMNIFICATION SHALL BE DETERMINED ACCORDING TO SECTION 12(A) OF
THIS AGREEMENT.
12.
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(A)
A DETERMINATION, IF REQUIRED BY APPLICABLE LAW, WITH RESPECT TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL BE MADE IN THE SPECIFIC CASE
BY ONE OF THE FOLLOWING METHODS, WHICH SHALL BE AT THE ELECTION OF INDEMNITEE:
(I) BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN THOUGH LESS THAN A
QUORUM OF THE BOARD OR (II) BY INDEPENDENT COUNSEL IN A WRITTEN OPINION TO THE
BOARD, A COPY OF WHICH SHALL BE DELIVERED TO INDEMNITEE.
THE COMPANY PROMPTLY
WILL ADVISE INDEMNITEE IN WRITING WITH RESPECT TO ANY DETERMINATION THAT
INDEMNITEE IS OR IS NOT ENTITLED TO INDEMNIFICATION, INCLUDING A DESCRIPTION OF
ANY REASON OR BASIS FOR WHICH
9
INDEMNIFICATION HAS BEEN DENIED.
IF IT IS SO DETERMINED THAT INDEMNITEE IS
ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE SHALL BE MADE WITHIN TEN
(10) DAYS AFTER SUCH DETERMINATION.
INDEMNITEE SHALL REASONABLY COOPERATE WITH
THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION WITH RESPECT TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON,
PERSONS OR ENTITY UPON REASONABLE ADVANCE REQUEST ANY DOCUMENTATION OR
INFORMATION WHICH IS NOT PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND
WHICH IS REASONABLY AVAILABLE TO INDEMNITEE AND REASONABLY NECESSARY TO SUCH
DETERMINATION.
ANY COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND
DISBURSEMENTS) INCURRED BY INDEMNITEE IN SO COOPERATING WITH THE PERSON, PERSONS
OR ENTITY MAKING SUCH DETERMINATION SHALL BE BORNE BY THE COMPANY (IRRESPECTIVE
OF THE DETERMINATION AS TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE
COMPANY HEREBY INDEMNIFIES AND AGREES TO HOLD INDEMNITEE HARMLESS THEREFROM.
(B)
IN THE EVENT THE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION IS TO BE
MADE BY INDEPENDENT COUNSEL PURSUANT TO SECTION 12(A) HEREOF, THE INDEPENDENT
COUNSEL SHALL BE SELECTED AS PROVIDED IN THIS SECTION 12(B).
THE INDEPENDENT
COUNSEL SHALL BE SELECTED BY INDEMNITEE (UNLESS INDEMNITEE SHALL REQUEST THAT
SUCH SELECTION BE MADE BY THE BOARD), AND INDEMNITEE SHALL GIVE WRITTEN NOTICE
TO THE COMPANY ADVISING IT OF THE IDENTITY OF THE INDEPENDENT COUNSEL SO
SELECTED AND CERTIFYING THAT THE INDEPENDENT COUNSEL SO SELECTED MEETS THE
REQUIREMENTS OF "INDEPENDENT COUNSEL" AS DEFINED IN SECTION 2 OF THIS
AGREEMENT.
IF THE INDEPENDENT COUNSEL IS SELECTED BY THE BOARD, THE COMPANY
SHALL GIVE WRITTEN NOTICE