OF A WRITTEN DEMAND BY INDEMNITEE REQUESTING SUCH ADVANCE, WHETHER PRIOR
TO OR AFTER FINAL DISPOSITION OF THE PROCEEDING.
SUCH WRITTEN DEMAND SHALL
REASONABLY EVIDENCE THE EXPENSES INCURRED BY INDEMNITEE AND SHALL INCLUDE AN
UNDERTAKING BY OR ON BEHALF OF INDEMNITEE TO REPAY ANY EXPENSES ADVANCED IF IT
IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED
AGAINST SUCH EXPENSES.
(B)
REPAYMENT OF EXPENSES.
NOTWITHSTANDING THE
PROVISIONS OF SECTION 3(A), THE OBLIGATION OF THE COMPANY TO ADVANCE EXPENSES
SHALL BE SUBJECT TO THE CONDITION THAT, IF, WHEN AND TO THE EXTENT THAT THE
COMPANY DETERMINES THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED UNDER
APPLICABLE LAW, INDEMNITEE SHALL REIMBURSE THE COMPANY WITHIN THIRTY DAYS OF
SUCH DETERMINATION ALL SUCH AMOUNTS PREVIOUSLY PAID; PROVIDED, HOWEVER, THAT IF
INDEMNITEE HAS COMMENCED OR THEREAFTER COMMENCES LEGAL PROCEEDINGS IN A COURT OF
COMPETENT JURISDICTION OR ARBITRATION PROCEEDINGS AS SET FORTH IN
SECTION 6(A) TO SECURE A DETERMINATION THAT INDEMNITEE IS ENTITLED TO BE
INDEMNIFIED UNDER APPLICABLE LAW, ANY DETERMINATION MADE BY THE COMPANY THAT
INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED UNDER APPLICABLE LAW SHALL NOT BE
BINDING AND INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE THE COMPANY FOR ANY
ADVANCE OF EXPENSES UNTIL A FINAL JUDICIAL DETERMINATION IS MADE WITH RESPECT
THERETO (AS TO WHICH ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN EXHAUSTED AND
LAPSED).
4.
DETERMINING RIGHT TO INDEMNITY.
(A)
PROCEDURE.
UPON WRITTEN REQUEST BY
INDEMNITEE FOR INDEMNIFICATION PURSUANT TO SECTION 2(A), A DETERMINATION, IF
REQUIRED BY APPLICABLE LAW, WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION SHALL BE MADE AS FOLLOWS:
(I) IF A CHANGE OF CONTROL (AS
DEFINED IN SECTION 14) HAS OCCURRED, BY INDEPENDENT COUNSEL (AS DEFINED IN
SECTION 14) IN A WRITTEN OPINION TO THE BOARD, A COPY OF WHICH SHALL BE
DELIVERED TO INDEMNITEE; OR (II) IF A CHANGE OF CONTROL HAS NOT OCCURRED BY ONE
OF THE FOLLOWING, WHICH SHALL BE AT THE ELECTION OF INDEMNITEE, (A) A MAJORITY
VOTE OF THE DIRECTORS OF THE COMPANY WHO ARE NOT AND WERE NOT A PARTY TO THE
PROCEEDING IN RESPECT OF WHICH INDEMNITEE SEEKS INDEMNIFICATION (THE
"DISINTERESTED DIRECTORS"); OR (B) A MAJORITY VOTE OF A QUORUM OF THE
OUTSTANDING SHARES OF STOCK OF ALL CLASSES ENTITLED TO VOTE FOR DIRECTORS,
VOTING AS A SINGLE CLASS, WHICH QUORUM SHALL CONSIST OF STOCKHOLDERS WHO ARE NOT
AT THE TIME PARTIES TO THE PROCEEDING (THE "DISINTERESTED STOCKHOLDERS"); OR
(C) INDEPENDENT COUNSEL IN A WRITTEN OPINION TO THE BOARD, A COPY OF WHICH SHALL
BE DELIVERED TO INDEMNITEE (EACH INDIVIDUALLY, THE "DETERMINING PARTY").
IF IT
IS SO DETERMINED THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION, PAYMENT TO
INDEMNITEE SHALL BE MADE WITHIN SEVEN DAYS AFTER SUCH DETERMINATION.
INDEMNITEE
SHALL COOPERATE WITH THE DETERMINING PARTY WITH RESPECT TO INDEMNITEE'S
ENTITLEMENT TO INDEMNIFICATION, INCLUDING PROVIDING TO THE DETERMINING PARTY
UPON 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'