SHALL BE AT THE EXPENSE OF THE COMPANY.
SECTION 8.
DETERMINATION OF RIGHT TO INDEMNIFICATION.
(A)
TO THE EXTENT INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS OR
OTHERWISE IN THE DEFENSE OF ANY PROCEEDING REFERRED TO IN SECTION 4(A), 4(B),
4(C) OR 4(D) OF THIS AGREEMENT OR IN THE DEFENSE OF ANY CLAIM, ISSUE OR MATTER
DESCRIBED THEREIN, THE COMPANY SHALL INDEMNIFY INDEMNITEE AGAINST EXPENSES
ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN CONNECTION WITH THE
INVESTIGATION, DEFENSE OR APPEAL OF SUCH PROCEEDING.
(B)
INDEMNITEE SHALL BE ENTITLED TO SELECT THE FORUM FOR DETERMINING,
AS DESCRIBED BELOW, THE VALIDITY OF ANY CLAIM BY THE COMPANY THAT INDEMNITEE IS
NOT ENTITLED TO INDEMNIFICATION HEREUNDER, WHICH FORUM SHALL DETERMINE THAT
INDEMNITEE IS ENTITLED TO SUCH INDEMNIFICATION UNLESS THE COMPANY SHALL PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT (I) INDEMNITEE HAS NOT MET THE APPLICABLE
STANDARD OF CONDUCT REQUIRED TO ENTITLE INDEMNITEE TO SUCH INDEMNIFICATION OR
THAT INDEMNIFICATION IS OTHERWISE NOT REQUIRED PURSUANT TO SECTION 4 OR
SECTION 10 HEREOF AND (II) THE REQUIREMENTS OF SECTION 8(A) HAVE NOT BEEN MET.
THE FORUM SHALL DETERMINE THAT INDEMNITEE IS ENTITLED TO ENFORCE A CLAIM FOR
ADVANCEMENT OF EXPENSES PURSUANT TO SECTION 6 HEREOF UNLESS THE COMPANY SHALL
PROVE BY CLEAR AND CONVINCING EVIDENCE THAT INDEMNITEE HAS NOT TENDERED THE
REQUIRED UNDERTAKING TO THE COMPANY.
INDEMNITEE SHALL BE ENTITLED TO SELECT THE
FORUM FROM THE FOLLOWING LIST:
(I)
A QUORUM OF THE BOARD CONSISTING OF DIRECTORS WHO ARE NOT PARTIES
TO THE PROCEEDING FOR WHICH INDEMNIFICATION IS BEING SOUGHT;
(II)
THE SHAREHOLDERS OF THE COMPANY;
(III)
LEGAL COUNSEL SELECTED BY INDEMNITEE, AND REASONABLY APPROVED BY
THE BOARD, WHICH COUNSEL SHALL MAKE SUCH DETERMINATION IN A WRITTEN OPINION; OR
(IV)
A PANEL OF THREE ARBITRATORS, ONE OF WHOM IS SELECTED BY THE
COMPANY, ANOTHER OF WHOM IS SELECTED BY INDEMNITEE AND THE LAST OF WHOM IS
SELECTED BY THE FIRST TWO ARBITRATORS SO SELECTED.
7
(C)
AS SOON AS PRACTICABLE, AND IN NO EVENT LATER THAN 30 DAYS AFTER
WRITTEN NOTICE OF INDEMNITEE'S CHOICE OF FORUM PURSUANT TO SECTION 8(B) ABOVE,
THE COMPANY SHALL, AT ITS OWN EXPENSE, SUBMIT TO THE SELECTED FORUM, IN SUCH
MANNER AS INDEMNITEE OR INDEMNITEE'S COUNSEL MAY REASONABLY REQUEST, ITS CLAIM
THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION, AND THE COMPANY SHALL ACT IN
THE UTMOST GOOD FAITH TO ASSURE INDEMNITEE A COMPLETE OPPORTUNITY TO DEFEND
AGAINST SUCH CLAIM.
(D)
IF THE FORUM SELECTED IN SECTION 8(B) ABOVE DETERMINES THAT
INDEMNITEE IS ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE SHALL BE MADE
WITHIN 20 DAYS AFTER SUCH DETERMINATION.
(E)
ANY RIGHT TO INDEMNIFICATION OR ADVANCES GRANTED BY THIS AGREEMENT
TO INDEMNITEE SHALL BE ENFORCEABLE BY OR ON BEHALF OF INDEMNITEE IN THE COURT IN
WHICH THAT PROCEEDING IS OR WAS PENDING OR ANY OTHER COURT OF COMPETENT
JURISDICTION, IF (I) THE CLAIM FOR INDEMNIFICATION OR ADVANCES IS DENIED, IN
WHOLE OR IN PART, (AS FURTHER DISCUSSED IN SECTION 9 BELOW) OR (II) NO
DISPOSITION OF SUCH CLAIM IS MADE WITHIN 90 DAYS