SUPPORT THE ADVANCES CLAIMED. THE
INDEMNITEE SHALL QUALIFY FOR ADVANCES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, SOLELY UPON THE EXECUTION AND DELIVERY TO THE COMPANY OF AN
UNDERTAKING PROVIDING THAT THE INDEMNITEE UNDERTAKES TO REPAY THE ADVANCE TO THE
EXTENT THAT IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY THE COMPANY UNDER THE PROVISIONS OF THIS AGREEMENT, THE BYLAWS OF
THE COMPANY, APPLICABLE LAW OR OTHERWISE. THIS SECTION 10(A) SHALL NOT APPLY TO
ANY CLAIM MADE BY INDEMNITEE FOR WHICH INDEMNITY IS EXCLUDED PURSUANT TO
SECTION 9.
(B)
THE COMPANY WILL BE ENTITLED TO PARTICIPATE IN THE PROCEEDING AT
ITS OWN EXPENSE.
(C)
THE COMPANY SHALL NOT SETTLE ANY ACTION, CLAIM OR PROCEEDING (IN
WHOLE OR IN PART) WHICH WOULD IMPOSE ANY EXPENSE, JUDGMENT, FINE, PENALTY OR
LIMITATION ON THE INDEMNITEE WITHOUT THE INDEMNITEE'S PRIOR WRITTEN CONSENT.
11.
PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(A)
INDEMNITEE AGREES TO NOTIFY PROMPTLY THE COMPANY IN WRITING UPON
BEING SERVED WITH ANY SUMMONS, CITATION, SUBPOENA, COMPLAINT, INDICTMENT,
INFORMATION OR OTHER DOCUMENT RELATING TO ANY PROCEEDING OR MATTER WHICH MAY BE
SUBJECT TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES COVERED HEREUNDER. THE
FAILURE OF INDEMNITEE TO SO NOTIFY THE COMPANY SHALL NOT RELIEVE THE COMPANY OF
ANY OBLIGATION WHICH IT MAY HAVE TO THE INDEMNITEE UNDER THIS AGREEMENT, OR
OTHERWISE.
(B)
INDEMNITEE MAY DELIVER TO THE COMPANY A WRITTEN APPLICATION TO
INDEMNIFY AND HOLD HARMLESS INDEMNITEE IN ACCORDANCE WITH THIS AGREEMENT. SUCH
APPLICATION(S) MAY BE DELIVERED FROM TIME TO TIME AND AT SUCH TIME(S) AS
INDEMNITEE DEEMS APPROPRIATE IN HIS OR HER SOLE DISCRETION. FOLLOWING SUCH A
WRITTEN APPLICATION FOR INDEMNIFICATION BY INDEMNITEE, THE
8
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL BE DETERMINED ACCORDING TO
SECTION 12(A) OF THIS AGREEMENT.
12.
PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(A)
A DETERMINATION, IF REQUIRED BY APPLICABLE LAW, WITH RESPECT TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION SHALL BE MADE IN THE SPECIFIC CASE
BY ONE OF THE FOLLOWING METHODS, WHICH SHALL BE AT THE ELECTION OF INDEMNITEE:
(I) BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN THOUGH LESS THAN A
QUORUM OF THE BOARD; OR (II) BY INDEPENDENT COUNSEL IN A WRITTEN OPINION TO THE
BOARD, A COPY OF WHICH SHALL BE DELIVERED TO INDEMNITEE. THE COMPANY PROMPTLY
WILL ADVISE INDEMNITEE IN WRITING WITH RESPECT TO ANY DETERMINATION THAT
INDEMNITEE IS OR IS NOT ENTITLED TO INDEMNIFICATION, INCLUDING A DESCRIPTION OF
ANY REASON OR BASIS FOR WHICH INDEMNIFICATION HAS BEEN DENIED. IF IT IS SO
DETERMINED THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE
SHALL BE MADE WITHIN TEN (10) DAYS AFTER SUCH DETERMINATION. INDEMNITEE SHALL
REASONABLY 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