ADVANCES CLAIMED.
THE INDEMNITEE SHALL QUALIFY FOR ADVANCES UPON
THE EXECUTION AND DELIVERY TO THE COMPANY OF THIS AGREEMENT, WHICH SHALL
CONSTITUTE AN UNDERTAKING PROVIDING THAT THE INDEMNITEE UNDERTAKES TO REPAY THE
ADVANCE TO THE EXTENT THAT IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT
ENTITLED TO BE INDEMNIFIED BY THE COMPANY.
THIS SECTION 9 SHALL NOT APPLY TO
ANY CLAIM MADE BY INDEMNITEE FOR WHICH INDEMNITY IS EXCLUDED PURSUANT TO SECTION
8.
7
SECTION 10.
PROCEDURE FOR NOTIFICATION AND DEFENSE OF CLAIM.
(A)
INDEMNITEE SHALL NOTIFY THE COMPANY IN WRITING OF ANY MATTER WITH
RESPECT TO WHICH INDEMNITEE INTENDS TO SEEK INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES HEREUNDER AS SOON AS REASONABLY PRACTICABLE FOLLOWING THE RECEIPT BY
INDEMNITEE OF WRITTEN NOTICE THEREOF.
THE WRITTEN NOTIFICATION TO THE COMPANY
SHALL INCLUDE A DESCRIPTION OF THE NATURE OF THE PROCEEDING AND THE FACTS
UNDERLYING THE PROCEEDING.
TO OBTAIN INDEMNIFICATION UNDER THIS AGREEMENT,
INDEMNITEE SHALL SUBMIT TO THE COMPANY A WRITTEN REQUEST, INCLUDING THEREIN OR
THEREWITH 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 FOLLOWING THE FINAL DISPOSITION OF
SUCH ACTION, SUIT OR PROCEEDING.
THE OMISSION BY INDEMNITEE TO NOTIFY THE
COMPANY HEREUNDER WILL NOT RELIEVE THE COMPANY FROM ANY LIABILITY WHICH IT MAY
HAVE TO INDEMNITEE HEREUNDER OR OTHERWISE THAN UNDER THIS AGREEMENT, AND ANY
DELAY IN SO NOTIFYING THE COMPANY SHALL NOT CONSTITUTE A WAIVER BY INDEMNITEE OF
ANY RIGHTS UNDER THIS AGREEMENT.
THE SECRETARY OF THE COMPANY SHALL, PROMPTLY
UPON RECEIPT OF SUCH A REQUEST FOR INDEMNIFICATION, ADVISE THE BOARD IN WRITING
THAT INDEMNITEE HAS REQUESTED INDEMNIFICATION.
(B)
THE COMPANY WILL BE ENTITLED TO PARTICIPATE IN THE PROCEEDING AT
ITS OWN EXPENSE.
SECTION 11.
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(A)
UPON WRITTEN REQUEST BY INDEMNITEE FOR INDEMNIFICATION PURSUANT TO
THE SECTION 10(A), A DETERMINATION, IF REQUIRED BY APPLICABLE LAW, WITH RESPECT
TO INDEMNITEE'S ENTITLEMENT THERETO SHALL BE MADE IN THE SPECIFIC CASE:
(I) IF
A CHANGE IN CONTROL SHALL HAVE OCCURRED, BY INDEPENDENT COUNSEL IN A WRITTEN
OPINION TO THE BOARD OF DIRECTORS, A COPY OF WHICH SHALL BE DELIVERED TO
INDEMNITEE; OR (II) IF A CHANGE IN CONTROL SHALL NOT HAVE OCCURRED, (A) BY A
MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN THOUGH LESS THAN A QUORUM OF
THE BOARD, (B) BY A COMMITTEE OF DISINTERESTED DIRECTORS DESIGNATED BY A
MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN THOUGH LESS THAN A QUORUM OF
THE BOARD, (C) IF THERE ARE NO SUCH DISINTERESTED DIRECTORS OR, IF SUCH
DISINTERESTED DIRECTORS SO DIRECT, BY INDEPENDENT COUNSEL IN A WRITTEN OPINION
TO THE BOARD, A COPY OF WHICH SHALL BE DELIVERED TO INDEMNITEE OR (D) IF SO
DIRECTED BY THE BOARD, BY THE STOCKHOLDERS OF THE COMPANY; AND, 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
COOPERATE WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION