THAN AS CONTEMPLATED BY SECTION 3(B), THE PERSON, PERSONS OR
ENTITY WHO SHALL DETERMINE WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION IN
THE FIRST INSTANCE (THE
4
"REVIEWING PARTY") SHALL BE (I) THE BOARD ACTING BY A MAJORITY VOTE OF
DISINTERESTED DIRECTORS OR (II) IF THERE ARE NO DISINTERESTED DIRECTORS, OR IF
THE INDEMNITEE SO DIRECT, BY INDEPENDENT COUNSEL IN A WRITTEN DETERMINATION TO
THE BOARD, A COPY OF WHICH WRITTEN DETERMINATION SHALL BE DELIVERED TO
INDEMNITEE.
THE PERSONS CHOSEN TO MAKE A DETERMINATION UNDER THIS AGREEMENT OF
THE INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION WILL ACT REASONABLY AND IN GOOD
FAITH IN MAKING SUCH DETERMINATION.
(B)
AFTER A CHANGE IN CONTROL (OTHER THAN A CHANGE IN CONTROL APPROVED
BY A MAJORITY OF THE CONTINUING DIRECTORS), THE REVIEWING PARTY SHALL BE THE
INDEPENDENT COUNSEL.
WITH RESPECT TO ALL MATTERS ARISING FROM SUCH A CHANGE IN
CONTROL CONCERNING THE RIGHTS OF INDEMNITEE TO INDEMNITY PAYMENTS AND EXPENSE
ADVANCES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR UNDER APPLICABLE LAW OR
THE CERTIFICATE OR THE BYLAWS NOW OR HEREAFTER IN EFFECT RELATING TO
INDEMNIFICATION FOR INDEMNIFIABLE EVENTS, THE COMPANY SHALL SEEK LEGAL ADVICE
ONLY FROM THE INDEPENDENT COUNSEL.
SUCH COUNSEL, AMONG OTHER THINGS, SHALL
RENDER ITS WRITTEN OPINION TO THE COMPANY AND INDEMNITEE AS TO WHETHER AND TO
WHAT EXTENT THE INDEMNITEE SHOULD BE PERMITTED TO BE INDEMNIFIED UNDER
APPLICABLE LAW.
THE COMPANY AGREES TO PAY THE REASONABLE FEES OF THE
INDEPENDENT COUNSEL AND TO INDEMNIFY FULLY SUCH COUNSEL AGAINST ANY AND ALL
EXPENSES (INCLUDING ATTORNEYS' FEES), CLAIMS, LIABILITIES, LOSS, AND DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ENGAGEMENT OF INDEPENDENT
COUNSEL PURSUANT HERETO.
4.
INDEMNIFICATION PROCESS AND APPEAL.
(A)
INDEMNIFICATION PAYMENT.
(I)
THE DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION SHALL, TO THE EXTENT PRACTICABLE, BE MADE BY THE REVIEWING PARTY
NOT LATER THAN 21 CALENDAR DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN DEMAND
ON THE COMPANY FOR INDEMNIFICATION (WHICH WRITTEN DEMAND SHALL INCLUDE SUCH
DOCUMENTATION AND INFORMATION AS IS REASONABLY AVAILABLE TO INDEMNITEE AND IS
REASONABLY NECESSARY TO DETERMINE WHETHER AND TO WHAT EXTENT INDEMNITEE IS
ENTITLED TO INDEMNIFICATION).
THE REVIEWING PARTY MAKING THE DETERMINATION WITH
RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL NOTIFY INDEMNITEE
OF SUCH WRITTEN DETERMINATION NO LATER THAN TWO BUSINESS DAYS THEREAFTER.
(II)
UNLESS THE REVIEWING PARTY HAS PROVIDED A WRITTEN DETERMINATION
TO THE COMPANY THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION UNDER
APPLICABLE LAW, INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATION OF INDEMNIFIABLE
COSTS, AND SHALL RECEIVE PAYMENT THEREOF, FROM THE COMPANY IN ACCORDANCE WITH
THIS AGREEMENT WITHIN FIVE BUSINESS DAYS AFTER THE REVIEWING PARTY HAS MADE ITS
DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION.
(B)
SUIT TO ENFORCE RIGHTS.
IF (I) NO DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION SHALL HAVE BEEN MADE WITHIN THE TIME LIMITATION FOR SUCH A
DETERMINATION SET FORTH IN SECTION 4(A)(I), (II) PAYMENT OF INDEMNIFICATION
PURSUANT TO SECTION 4(A)(II) IS NOT MADE WITHIN THE PERIOD PERMITTED FOR SUCH
PAYMENT BY SUCH SECTION, (III) THE REVIEWING PARTY