BE ACCEPTED WITHOUT REFERENCE TO
INDEMNITEE'S FINANCIAL ABILITY TO MAKE REPAYMENT.
ANY ADVANCES AND UNDERTAKINGS
TO REPAY SHALL BE INTEREST-FREE.
7.
PROCEDURES.
(A)
IN ORDER TO OBTAIN INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES PURSUANT TO THIS AGREEMENT, INDEMNITEE SHALL SUBMIT TO
THE CORPORATION A WRITTEN REQUEST, INCLUDING IN SUCH REQUEST 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 OR ADVANCEMENT OF EXPENSES.
ANY SUCH INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES SHALL BE MADE PROMPTLY, AND IN ANY EVENT WITHIN 60 DAYS
AFTER RECEIPT BY THE
5
CORPORATION OF THE WRITTEN REQUEST OF INDEMNITEE, SUBJECT TO THE PROVISIONS OF
PARAGRAPH 7(B) AND 7(C) BELOW.
(B)
WITH RESPECT TO REQUESTS UNDER PARAGRAPH 2,
NO INDEMNIFICATION SHALL BE MADE UNLESS THE CORPORATION DETERMINES THAT
INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN PARAGRAPH 2.
THE DETERMINATION OF WHETHER INDEMNITEE HAS MET THE APPLICABLE STANDARD OF
CONDUCT SET FORTH IN PARAGRAPH 2, AND ANY DETERMINATION THAT EXPENSES THAT HAVE
BEEN ADVANCED PURSUANT TO PARAGRAPH 6 MUST BE SUBSEQUENTLY REPAID TO THE
CORPORATION, SHALL BE MADE IN EACH INSTANCE (I) IF THERE ARE TWO OR MORE
DISINTERESTED DIRECTORS, BY THE BOARD OF DIRECTORS BY A MAJORITY VOTE OF ALL THE
DISINTERESTED DIRECTORS, A MAJORITY OF WHOM SHALL FOR SUCH PURPOSE CONSTITUTE A
QUORUM, OR BY A MAJORITY OF THE MEMBERS OF A COMMITTEE OF TWO OR MORE
DISINTERESTED DIRECTORS APPOINTED BY SUCH VOTE; (II) BY SPECIAL LEGAL COUNSEL
(A) SELECTED IN THE MANNER PRESCRIBED IN CLAUSE (I), OR (B) IF THERE ARE FEWER
THAN TWO DISINTERESTED DIRECTORS, SELECTED BY BOARD OF DIRECTORS, IN WHICH
SELECTION DIRECTORS WHO DO NOT QUALIFY AS DISINTERESTED DIRECTORS MAY
PARTICIPATE OR (III) BY THE SHAREHOLDERS OF THE CORPORATION (BUT SHARES OWNED BY
OR VOTED UNDER THE CONTROL OF A DIRECTOR WHO AT THE TIME DOES NOT QUALIFY AS A
DISINTERESTED DIRECTOR MAY NOT BE VOTED ON THE DETERMINATION).
SUCH
DETERMINATION SHALL BE MADE WITHIN THE 60-DAY PERIOD REFERRED TO IN
PARAGRAPH 7(A) (UNLESS EXTENDED BY MUTUAL AGREEMENT BY THE CORPORATION AND
INDEMNITEE).
FOR THE PURPOSE OF THE FOREGOING DETERMINATION WITH RESPECT TO
REQUESTS UNDER PARAGRAPH 2 OR REPAYMENT OF ADVANCED EXPENSES, THE INDEMNITEE
SHALL BE ENTITLED TO A PRESUMPTION THAT HE OR SHE HAS MET THE APPLICABLE
STANDARD OF CONDUCT SET FORTH IN PARAGRAPH 2.
THE CORPORATION ACKNOWLEDGES THAT
THE INDEMNITEE MAY SETTLE A PROCEEDING IN ORDER TO AVOID EXPENSE, DELAY,
DISTRACTION, DISRUPTION AND UNCERTAINTY AND THAT, THEREFORE, ANY SUCH SETTLEMENT
(WITH OR WITHOUT PAYMENT OF MONEY OR OTHER CONSIDERATION) SHALL NOT IN AND OF
ITSELF OVERCOME THE PRESUMPTION SET FORTH ABOVE.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH IN THIS AGREEMENT, IF A REQUEST FOR INDEMNIFICATION PURSUANT TO
PARAGRAPH 2 IS MADE AFTER A CHANGE OF CONTROL, AT THE ELECTION OF THE INDEMNITEE
MADE IN WRITING TO THE CORPORATION, THE DETERMINATION REQUIRED TO BE MADE
PURSUANT TO PARAGRAPH 7(B) ABOVE AS TO WHETHER THE INDEMNITEE HAS MET THE