CONFLICT OF INTEREST OR POSITION ON
ANY SIGNIFICANT ISSUE BETWEEN THE CORPORATION AND THE INDEMNITEE IN THE CONDUCT
OF THE DEFENSE OF SUCH PROCEEDING OR (III) THE CORPORATION SHALL NOT IN FACT
HAVE EMPLOYED COUNSEL TO ASSUME THE DEFENSE OF SUCH PROCEEDING, IN EACH OF WHICH
CASES THE EXPENSES OF COUNSEL FOR THE INDEMNITEE SHALL BE AT THE EXPENSE OF THE
CORPORATION, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY THIS AGREEMENT, AND
PROVIDED THAT INDEMNITEE'S COUNSEL SHALL COOPERATE REASONABLY WITH THE
CORPORATION'S COUNSEL TO MINIMIZE THE COST OF DEFENDING CLAIMS AGAINST THE
CORPORATION AND THE INDEMNITEE.
THE CORPORATION SHALL NOT BE ENTITLED, WITHOUT
THE CONSENT OF THE INDEMNITEE, TO ASSUME THE DEFENSE OF ANY CLAIM BROUGHT BY OR
IN THE RIGHT OF THE CORPORATION OR AS TO WHICH COUNSEL FOR THE INDEMNITEE SHALL
HAVE REASONABLY MADE THE DETERMINATION PROVIDED FOR IN CLAUSE (II) ABOVE.
(B)
THE CORPORATION SHALL NOT BE REQUIRED TO INDEMNIFY THE INDEMNITEE
UNDER THIS AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT OF ANY PROCEEDING
EFFECTED WITHOUT ITS WRITTEN CONSENT.
THE CORPORATION SHALL NOT SETTLE ANY
PROCEEDING IN ANY MANNER THAT WOULD IMPOSE ANY PENALTY OR LIMITATION ON THE
INDEMNITEE WITHOUT THE INDEMNITEE'S WRITTEN CONSENT.
NEITHER THE CORPORATION
NOR THE INDEMNITEE WILL UNREASONABLY WITHHOLD OR DELAY THEIR CONSENT TO ANY
PROPOSED SETTLEMENT.
7.
ADVANCEMENT OF EXPENSES.
SUBJECT TO THE PROVISIONS OF SECTION 8,
IN THE EVENT THAT (A) THE CORPORATION DOES NOT ASSUME THE DEFENSE PURSUANT TO
SECTION 6 OF ANY PROCEEDING OF
5
WHICH THE CORPORATION RECEIVES NOTICE UNDER THIS AGREEMENT OR (B) THE
CORPORATION ASSUMES SUCH DEFENSE BUT INDEMNITEE IS, PURSUANT TO SECTION 6,
ENTITLED TO HAVE THE EXPENSES OF INDEMNITEE'S OWN COUNSEL PAID FOR BY THE
CORPORATION, ANY EXPENSES ACTUALLY AND REASONABLY INCURRED BY OR ON BEHALF OF
THE INDEMNITEE IN CONNECTION WITH A PROCEEDING FOR WHICH INDEMNITY WILL OR COULD
BE SOUGHT UNDER THIS AGREEMENT SHALL BE PAID BY THE CORPORATION IN ADVANCE OF
THE FINAL DISPOSITION OF SUCH PROCEEDING; PROVIDED, HOWEVER, THAT THE PAYMENT OF
SUCH EXPENSES INCURRED BY OR ON BEHALF OF THE INDEMNITEE IN ADVANCE OF THE FINAL
DISPOSITION OF SUCH PROCEEDING SHALL BE MADE ONLY UPON RECEIPT OF AN UNDERTAKING
BY OR ON BEHALF OF THE INDEMNITEE TO REPAY ALL AMOUNTS SO ADVANCED IN THE EVENT
THAT IT SHALL ULTIMATELY BE DETERMINED, AFTER THE CONCLUSION OF SUCH PROCEEDING,
THAT THE INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED BY THE CORPORATION AS
AUTHORIZED IN THIS AGREEMENT.
SUCH UNDERTAKING SHALL BE ACCEPTED WITHOUT
REFERENCE TO THE FINANCIAL ABILITY OF THE INDEMNITEE TO MAKE REPAYMENT.
ANY
ADVANCES AND UNDERTAKINGS TO REPAY PURSUANT TO THIS SECTION 7 SHALL BE UNSECURED
AND INTEREST-FREE.
8.
PROCEDURES.
(A)
IN ORDER TO OBTAIN INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
PURSUANT TO THIS AGREEMENT, THE INDEMNITEE SHALL SUBMIT TO THE CORPORATION A
WRITTEN REQUEST, INCLUDING IN SUCH REQUEST SUCH DOCUMENTATION AND INFORMATION AS
IS REASONABLY AVAILABLE TO THE INDEMNITEE AND IS REASONABLY NECESSARY TO
DETERMINE WHETHER AND TO WHAT EXTENT THE INDEMNITEE IS ENTITLED TO
INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.