ADVANCE TO THE EXTENT THAT IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS
NOT ENTITLED TO BE INDEMNIFIED BY THE COMPANY UNDER THE PROVISIONS OF THIS
AGREEMENT, THE BYLAWS OF THE COMPANY, APPLICABLE LAW OR OTHERWISE.
THIS SECTION
10(A) SHALL NOT APPLY TO ANY CLAIM MADE BY INDEMNITEE FOR WHICH INDEMNITY IS
EXCLUDED PURSUANT TO SECTION 9.
(B)
THE COMPANY WILL BE ENTITLED TO PARTICIPATE
IN THE PROCEEDING AT ITS OWN EXPENSE.
(C)
THE COMPANY SHALL NOT SETTLE ANY ACTION,
CLAIM OR PROCEEDING (IN WHOLE OR IN PART) WHICH WOULD IMPOSE ANY EXPENSE,
JUDGMENT, FINE, PENALTY OR LIMITATION ON THE INDEMNITEE WITHOUT THE INDEMNITEE'S
PRIOR WRITTEN CONSENT.
11.
PROCEDURE FOR NOTIFICATION AND APPLICATION FOR
INDEMNIFICATION.
(A)
INDEMNITEE AGREES TO NOTIFY PROMPTLY THE
COMPANY IN WRITING UPON BEING SERVED WITH ANY SUMMONS, CITATION, SUBPOENA,
COMPLAINT, INDICTMENT, INFORMATION OR OTHER DOCUMENT RELATING TO ANY PROCEEDING
OR MATTER WHICH MAY BE SUBJECT TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
COVERED HEREUNDER.
THE FAILURE OF INDEMNITEE TO SO NOTIFY THE COMPANY SHALL NOT
RELIEVE THE COMPANY OF ANY OBLIGATION WHICH IT MAY HAVE TO THE INDEMNITEE UNDER
THIS AGREEMENT, OR OTHERWISE.
(B)
INDEMNITEE MAY DELIVER TO THE COMPANY A
WRITTEN APPLICATION TO INDEMNIFY AND HOLD HARMLESS INDEMNITEE IN ACCORDANCE WITH
THIS AGREEMENT.
SUCH APPLICATION(S) MAY BE DELIVERED FROM TIME TO TIME AND AT
SUCH TIME(S) AS INDEMNITEE DEEMS APPROPRIATE IN HIS OR HER SOLE DISCRETION.
FOLLOWING SUCH A WRITTEN APPLICATION FOR INDEMNIFICATION BY INDEMNITEE, THE
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL BE DETERMINED ACCORDING TO
SECTION 12(A) OF THIS AGREEMENT.
8
12.
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(A)
A DETERMINATION, IF REQUIRED BY APPLICABLE
LAW, WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL BE MADE
IN THE SPECIFIC CASE BY ONE OF THE FOLLOWING METHODS, WHICH SHALL BE AT THE
ELECTION OF INDEMNITEE:
(I) BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS,
EVEN THOUGH LESS THAN A QUORUM OF THE BOARD; OR (II) BY INDEPENDENT COUNSEL IN A
WRITTEN OPINION TO THE BOARD, A COPY OF WHICH SHALL BE DELIVERED TO INDEMNITEE.
THE COMPANY PROMPTLY WILL ADVISE INDEMNITEE IN WRITING WITH RESPECT TO ANY
DETERMINATION THAT INDEMNITEE IS OR IS NOT ENTITLED TO INDEMNIFICATION,
INCLUDING A DESCRIPTION OF ANY REASON OR BASIS FOR WHICH INDEMNIFICATION HAS
BEEN DENIED.
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 REASONABLY COOPERATE WITH THE PERSON,
PERSONS OR ENTITY MAKING SUCH DETERMINATION WITH RESPECT TO INDEMNITEE'S
ENTITLEMENT TO INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON, PERSONS OR
ENTITY UPON REASONABLE ADVANCE REQUEST ANY DOCUMENTATION OR INFORMATION WHICH IS
NOT PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY
AVAILABLE TO INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION.
ANY
COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED BY
INDEMNITEE IN SO COOPERATING WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH
DETERMINATION SHALL BE BORNE BY THE COMPANY (IRRESPECTIVE OF THE DETERMINATION
AS TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE COMPANY HEREBY
INDEMNIFIES AND AGREES