BY WAY OF
DEFENSE, INCLUDING DEFENSE THROUGH COUNTERCLAIM OR CROSSCLAIM, EXCEPT (I) WITH
RESPECT TO ACTIONS OR PROCEEDINGS BROUGHT TO ESTABLISH OR ENFORCE A RIGHT TO
INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSURANCE POLICY
OR UNDER THE CHARTER DOCUMENTS NOW OR HEREAFTER IN EFFECT RELATING TO
PROCEEDINGS FOR INDEMNIFIABLE EVENTS, OR (II) IN SPECIFIC CASES IF THE BOARD OF
DIRECTORS OF THE COMPANY HAS APPROVED THE INITIATION OR BRINGING OF SUCH
PROCEEDING BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS.
C.
TO INDEMNIFY INDEMNITEE FOR ANY EXPENSES INCURRED BY INDEMNITEE
WITH RESPECT TO ANY ACTION INSTITUTED (I) BY INDEMNITEE TO ENFORCE OR INTERPRET
THIS AGREEMENT, IF A COURT HAVING JURISDICTION OVER SUCH ACTION DETERMINES THAT
EACH OF THE MATERIAL ASSERTIONS MADE BY INDEMNITEE AS A BASIS FOR SUCH ACTION
WAS NOT MADE IN GOOD FAITH OR WAS FRIVOLOUS, OR (II) BY OR IN THE NAME OF THE
COMPANY TO ENFORCE OR INTERPRET THIS AGREEMENT, IF A COURT HAVING JURISDICTION
OVER SUCH ACTION DETERMINES THAT EACH OF THE MATERIAL DEFENSES ASSERTED BY
INDEMNITEE IN SUCH ACTION WAS MADE IN BAD FAITH OR WAS FRIVOLOUS.
D.
TO INDEMNIFY INDEMNITEE FOR EXPENSES, JUDGMENTS, FINES, PENALTIES
AND THE PAYMENT OF PROFITS ARISING FROM THE PURCHASE AND SALE BY INDEMNITEE OF
SECURITIES IN VIOLATION OF SECTION 16(B) OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED, OR ANY SIMILAR SUCCESSOR STATUTE.
E.
TO INDEMNIFY INDEMNITEE FOR LIABILITIES OR EXPENSES ARISING FROM
AN ADMINISTRATIVE OR CIVIL ENFORCEMENT ACTION COMMENCED BY A FEDERAL BANKING
AGENCY TO THE EXTENT PROHIBITED BY APPLICABLE LAWS OR THE REGULATIONS OF SUCH
AGENCY.
5.
Procedures for Notification and Determinations.
A.
INDEMNITEE SHALL NOTIFY THE COMPANY IN WRITING AS SOON AS
REASONABLY PRACTICABLE (I) AFTER BEING SERVED WITH ANY SUMMONS, CITATION,
SUBPOENA, COMPLAINT, INDICTMENT, INFORMATION OR OTHER DOCUMENT RELATING TO ANY
PROCEEDING OR (II) IF THE COMPANY HAS NOT BEEN PREVIOUSLY NOTIFIED, AFTER
RECEIPT OF WRITTEN NOTICE OF ANY OTHER MATTER WITH RESPECT TO WHICH INDEMNITEE
INTENDS TO SEEK INDEMNIFICATION OR ADVANCEMENT OF EXPENSES UNDER SECTION 2 AND
SECTION 3. THE FAILURE BY INDEMNITEE TO SO NOTIFY THE COMPANY WILL NOT RELIEVE
THE COMPANY FROM ANY LIABILITY WHICH IT MAY HAVE TO INDEMNITEE (I) UNDER THIS
AGREEMENT EXCEPT AND ONLY TO THE EXTENT THE COMPANY CAN ESTABLISH THAT SUCH
OMISSION TO NOTIFY RESULTED IN ACTUAL MATERIAL PREJUDICE TO THE COMPANY OR
(II) OTHERWISE THAN UNDER THIS AGREEMENT.
INDEMNITEE MAY THEREAFTER DELIVER TO
THE COMPANY A WRITTEN REQUEST FOR INDEMNIFICATION PURSUANT TO THIS AGREEMENT AT
SUCH TIME AND FROM TIME TO TIME AS INDEMNITEE DEEMS APPROPRIATE, WHICH REQUEST
SHALL ALSO BE DEEMED A REQUEST FOR ADVANCEMENT OF EXPENSES UNDER SECTION 3.
4
B.
EXCEPT AS OTHERWISE PROVIDED PURSUANT TO SECTION 2(B) AND
SECTION 2(C), UPON THE FINAL DISPOSITION OF THE MATTER THAT IS THE SUBJECT OF
THE REQUEST FOR INDEMNIFICATION DELIVERED PURSUANT TO SECTION 5(A), A
DETERMINATION SHALL BE MADE WITH RESPECT TO INDEMNITEE'S ENTITLEMENT THERETO IN
THE SPECIFIC CASE.
IF A CHANGE IN CONTROL SHALL NOT HAVE OCCURRED, SUCH