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 BANK 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,
INDEMNIFICATION SHALL BE MADE UNLESS THE BANK DETERMINES THAT INDEMNITEE HAS NOT
MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN PARAGRAPH 2.
ANY
DETERMINATION AS TO 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 BANK,
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
5
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 BANK (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).
ANY SUCH
DETERMINATION SHALL BE MADE WITHIN THE 60-DAY PERIOD REFERRED TO IN
PARAGRAPH 7(A) (UNLESS EXTENDED BY MUTUAL AGREEMENT BY THE BANK 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 BANK 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 BANK, ANY DETERMINATION REQUIRED TO BE MADE PURSUANT TO
PARAGRAPH 7(B) ABOVE AS TO WHETHER THE INDEMNITEE HAS MET THE APPLICABLE
STANDARD OF CONDUCT OR IS REQUIRED TO REPAY ADVANCED EXPENSES SHALL BE MADE BY
INDEPENDENT COUNSEL SELECTED AS PROVIDED IN THIS PARAGRAPH 7(C).
THE
INDEPENDENT COUNSEL SHALL BE SELECTED BY THE BOARD OF DIRECTORS.
INDEMNITEE
MAY, WITHIN 10 DAYS AFTER WRITTEN NOTICE OF SELECTION SHALL HAVE BEEN GIVEN,
DELIVER TO THE