A
WRITTEN UNDERTAKING BY OR ON BEHALF OF INDEMNITEE TO REPAY ANY EXPENSES ADVANCED
IF IT SHALL ULTIMATELY BE DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED AGAINST SUCH EXPENSES.
IF THE COMPANY MAKES AN ADVANCE OF EXPENSES
PURSUANT TO THIS SECTION 2.1, THE COMPANY SHALL BE SUBROGATED TO EVERY RIGHT OF
RECOVERY THAT INDEMNITEE MAY HAVE AGAINST ANY INSURANCE CARRIER FROM WHOM THE
COMPANY HAS PURCHASED INSURANCE FOR SUCH PURPOSE.
2.2
NOTICE/COOPERATION BY INDEMNITEE.
INDEMNITEE
SHALL, AS A CONDITION PRECEDENT TO INDEMNITEE'S RIGHT TO BE INDEMNIFIED UNDER
THIS AGREEMENT, GIVE THE COMPANY NOTICE IN WRITING AS SOON AS PRACTICABLE OF ANY
CLAIM MADE AGAINST INDEMNITEE FOR WHICH INDEMNIFICATION WILL OR COULD BE SOUGHT
UNDER THIS AGREEMENT.
NOTICE TO THE COMPANY SHALL BE DIRECTED TO THE CHIEF
EXECUTIVE OFFICER OF THE COMPANY AT THE ADDRESS SHOWN ON THE SIGNATURE PAGE OF
THIS AGREEMENT (OR SUCH OTHER ADDRESS AS THE COMPANY SHALL DESIGNATE IN WRITING
TO INDEMNITEE).
IN ADDITION, INDEMNITEE SHALL GIVE THE COMPANY SUCH INFORMATION
AND COOPERATION AS IT MAY REASONABLY REQUIRE AND AS SHALL BE WITHIN INDEMNITEE'S
POWER; PROVIDED, HOWEVER, THE INDEMNITEE SHALL BE ABLE TO LIMIT SUCH INFORMATION
AND SUCH COOPERATION TO THE EXTENT NECESSARY TO PROTECT THE INDEMNITEE'S FIFTH
AMENDMENT RIGHTS IN A CRIMINAL PROCEEDING.
3
2.3
NO PRESUMPTIONS; BURDEN OF PROOF.
FOR
PURPOSES OF THIS AGREEMENT, THE TERMINATION OF ANY CLAIM BY JUDGMENT, ORDER,
SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR UPON A
PLEA OF NOLO CONTENDERE, OR ITS EQUIVALENT, SHALL NOT CREATE A PRESUMPTION THAT
INDEMNITEE DID NOT MEET ANY PARTICULAR STANDARD OF CONDUCT OR HAVE ANY
PARTICULAR BELIEF OR THAT A COURT HAS DETERMINED THAT INDEMNIFICATION IS NOT
PERMITTED BY APPLICABLE LAW.
IN ADDITION, NEITHER THE FAILURE OF THE REVIEWING
PARTY TO HAVE MADE A DETERMINATION AS TO WHETHER INDEMNITEE HAS MET ANY
PARTICULAR STANDARD OF CONDUCT OR HAD ANY PARTICULAR BELIEF, NOR AN ACTUAL
DETERMINATION BY THE REVIEWING PARTY THAT INDEMNITEE HAS NOT MET SUCH STANDARD
OF CONDUCT OR DID NOT HAVE SUCH BELIEF, PRIOR TO THE COMMENCEMENT OF LEGAL
PROCEEDINGS BY INDEMNITEE TO SECURE A JUDICIAL DETERMINATION THAT INDEMNITEE
SHOULD BE INDEMNIFIED UNDER APPLICABLE LAW, SHALL BE A DEFENSE TO INDEMNITEE'S
CLAIM OR CREATE A PRESUMPTION THAT INDEMNITEE HAS NOT MET ANY PARTICULAR
STANDARD OF CONDUCT OR DID NOT HAVE ANY PARTICULAR BELIEF.
IN CONNECTION WITH
ANY DETERMINATION BY THE REVIEWING PARTY OR OTHERWISE AS TO WHETHER INDEMNITEE
IS ENTITLED TO BE INDEMNIFIED HEREUNDER, THE BURDEN OF PROOF SHALL BE ON THE
COMPANY TO ESTABLISH THAT INDEMNITEE IS NOT SO ENTITLED.
2.4
NOTICE TO INSURERS.
IF, AT THE TIME OF THE
RECEIPT BY THE COMPANY OF A NOTICE OF A CLAIM PURSUANT TO SECTION 2.2 HEREOF,
THE COMPANY HAS LIABILITY INSURANCE IN EFFECT WHICH MAY COVER SUCH CLAIM, THE
COMPANY SHALL GIVE PROMPT NOTICE OF THE COMMENCEMENT OF SUCH CLAIM TO THE
INSURERS IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE RESPECTIVE
POLICIES.
THE COMPANY SHALL THEREAFTER TAKE ALL NECESSARY OR DESIRABLE ACTION
TO CAUSE SUCH