AGREEMENT FOR ANY LEGAL OR
OTHER EXPENSES SUBSEQUENTLY INCURRED BY AGENT IN CONNECTION WITH THE DEFENSE
THEREOF EXCEPT FOR REASONABLE COSTS OF INVESTIGATION OR OTHERWISE AS PROVIDED
BELOW.
AGENT SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL IN SUCH ACTION,
SUIT OR PROCEEDING BUT THE FEES AND EXPENSES OF SUCH COUNSEL INCURRED AFTER
NOTICE FROM THE CORPORATION OF ITS ASSUMPTION OF THE DEFENSE THEREOF SHALL BE AT
THE EXPENSE OF AGENT UNLESS (I) THE EMPLOYMENT OF COUNSEL BY AGENT HAS BEEN
AUTHORIZED BY THE CORPORATION, (II) COUNSEL TO THE CORPORATION OR AGENT SHALL
HAVE REASONABLY CONCLUDED THAT THERE MAY BE A CONFLICT OF INTEREST BETWEEN THE
CORPORATION AND AGENT IN THE CONDUCT OF THE DEFENSE OF SUCH ACTION OR (III) THE
CORPORATION SHALL NOT IN FACT HAVE EMPLOYED COUNSEL TO ASSUME THE DEFENSE OF
SUCH ACTION, IN EACH OF WHICH CASES THE FEES AND EXPENSES OF AGENT'S SEPARATE
COUNSEL SHALL BE AT THE EXPENSE OF THE CORPORATION.
THE CORPORATION SHALL NOT
BE ENTITLED TO ASSUME THE DEFENSE OF ANY ACTION, SUIT OR PROCEEDING BROUGHT BY
OR ON BEHALF OF THE CORPORATION OR AS TO WHICH COUNSEL FOR THE CORPORATION OR
AGENT SHALL HAVE MADE THE CONCLUSION PROVIDED FOR IN CLAUSE (II) ABOVE; AND
(C)
THE CORPORATION SHALL NOT BE LIABLE TO
INDEMNIFY AGENT UNDER THIS AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT OF ANY
ACTION OR CLAIM EFFECTED WITHOUT ITS WRITTEN CONSENT, WHICH SHALL NOT BE
UNREASONABLY WITHHELD.
THE CORPORATION SHALL BE PERMITTED TO SETTLE ANY ACTION
EXCEPT THAT IT SHALL NOT SETTLE ANY ACTION OR CLAIM IN ANY MANNER WHICH WOULD
IMPOSE ANY PENALTY OR LIMITATION ON AGENT WITHOUT AGENT'S WRITTEN CONSENT, WHICH
MAY BE GIVEN OR WITHHELD IN AGENT'S SOLE DISCRETION.
8.
PROCEDURE FOR INDEMNIFICATION.
(A)
TO OBTAIN INDEMNIFICATION, AGENT SHALL
PROMPTLY SUBMIT TO THE CORPORATION A WRITTEN REQUEST, INCLUDING THEREIN OR
THEREWITH SUCH DOCUMENTATION AND INFORMATION AS IS REASONABLY AVAILABLE TO AGENT
AND IS REASONABLY NECESSARY TO DETERMINE WHETHER AND TO WHAT EXTENT AGENT IS
ENTITLED TO INDEMNIFICATION.
THE CORPORATION SHALL, PROMPTLY UPON RECEIPT OF
SUCH A REQUEST FOR INDEMNIFICATION, ADVISE THE BOARD OF DIRECTORS IN WRITING
THAT AGENT HAS REQUESTED INDEMNIFICATION.
(B)
THE CORPORATION'S DETERMINATION WHETHER TO
GRANT AGENT'S INDEMNIFICATION REQUEST SHALL BE MADE PROMPTLY, AND IN ANY EVENT
WITHIN 45 DAYS FOLLOWING RECEIPT OF A REQUEST FOR INDEMNIFICATION PURSUANT TO
SECTION 8(A).
(C)
THE AGENT SHALL BE PRESUMED TO BE ENTITLED
TO INDEMNIFICATION UNDER THIS AGREEMENT UPON SUBMISSION OF A REQUEST FOR
INDEMNIFICATION PURSUANT TO THIS SECTION 8, AND THE CORPORATION SHALL HAVE THE
BURDEN OF PROOF IN OVERCOMING THAT PRESUMPTION IN REACHING A DETERMINATION
CONTRARY TO THAT PRESUMPTION.
SUCH PRESUMPTION SHALL BE USED AS A BASIS FOR A
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION UNLESS THE CORPORATION OVERCOMES
SUCH PRESUMPTION BY CLEAR AND CONVINCING EVIDENCE.
5
9.
EXPENSES.
THE CORPORATION SHALL
ADVANCE, PRIOR TO THE FULL DISPOSITION OF ANY PROCEEDING, PROMPTLY FOLLOWING
REQUEST THEREFOR, ALL EXPENSES INCURRED BY AGENT IN CONNECTION WITH SUCH
PROCEEDING UPON RECEIPT OF AN UNDERTAKING BY OR ON BEHALF OF