THE
EXTENT THAT IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY THE COMPANY.
NO OTHER FORM OF UNDERTAKING SHALL BE REQUIRED
OTHER THAN THE EXECUTION OF THIS AGREEMENT.
THIS SECTION 7 SHALL NOT APPLY TO
ANY CLAIM MADE BY INDEMNITEE FOR WHICH INDEMNITY IS EXCLUDED PURSUANT TO
SECTION 6.
SECTION 8.
PROCEDURE FOR NOTIFICATION
AND DEFENSE OF CLAIM.
(A)
INDEMNITEE SHALL NOTIFY THE
COMPANY IN WRITING OF ANY MATTER WITH RESPECT TO WHICH INDEMNITEE INTENDS TO
SEEK INDEMNIFICATION OR ADVANCEMENT OF EXPENSES HEREUNDER AS SOON AS REASONABLY
PRACTICABLE FOLLOWING THE RECEIPT BY INDEMNITEE OF WRITTEN NOTICE THEREOF.
THE
WRITTEN NOTIFICATION TO THE COMPANY SHALL INCLUDE A DESCRIPTION OF THE NATURE OF
THE PROCEEDING AND THE FACTS UNDERLYING THE PROCEEDING.
TO OBTAIN
INDEMNIFICATION UNDER THIS AGREEMENT, INDEMNITEE SHALL SUBMIT TO THE COMPANY A
WRITTEN REQUEST, INCLUDING THEREIN OR THEREWITH 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 FOLLOWING THE FINAL DISPOSITION OF SUCH PROCEEDING.
THE
OMISSION BY INDEMNITEE TO NOTIFY THE COMPANY HEREUNDER WILL NOT RELIEVE THE
COMPANY FROM ANY LIABILITY WHICH IT MAY HAVE TO INDEMNITEE HEREUNDER OR
OTHERWISE THAN UNDER THIS AGREEMENT, AND ANY DELAY IN SO NOTIFYING THE COMPANY
SHALL NOT CONSTITUTE A WAIVER BY INDEMNITEE OF ANY RIGHTS UNDER THIS AGREEMENT.
THE SECRETARY OF THE COMPANY SHALL, PROMPTLY UPON RECEIPT OF SUCH A REQUEST FOR
INDEMNIFICATION, ADVISE THE BOARD IN WRITING THAT INDEMNITEE HAS REQUESTED
INDEMNIFICATION.
5
(B)
THE COMPANY WILL BE ENTITLED TO
PARTICIPATE IN THE PROCEEDING AT ITS OWN EXPENSE.
SECTION 9.
PROCEDURE UPON APPLICATION
FOR INDEMNIFICATION.
(A)
UPON WRITTEN REQUEST BY
INDEMNITEE FOR INDEMNIFICATION PURSUANT TO SECTION 8(A), A DETERMINATION, IF
REQUIRED BY APPLICABLE LAW, WITH RESPECT TO INDEMNITEE'S ENTITLEMENT THERETO
SHALL BE MADE IN THE SPECIFIC CASE:
(I) IF A CHANGE IN CONTROL SHALL HAVE
OCCURRED, BY INDEPENDENT COUNSEL IN A WRITTEN OPINION TO THE BOARD, A COPY OF
WHICH SHALL BE DELIVERED TO THE INDEMNITEE; OR (II) IF A CHANGE IN CONTROL SHALL
NOT HAVE OCCURRED, (A) BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN
THOUGH LESS THAN A QUORUM OF THE BOARD, OR (B) IF THERE ARE NO SUCH
DISINTERESTED DIRECTORS OR, IF SUCH DISINTERESTED DIRECTORS SO DIRECT, BY
INDEPENDENT COUNSEL IN A WRITTEN OPINION TO THE BOARD, A COPY OF WHICH SHALL BE
DELIVERED TO INDEMNITEE.
INDEMNITEE SHALL 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).
(B)
IN