FEES AND EXPENSES OF
COUNSEL EMPLOYED BY INDEMNITEE SHALL BE AT THE EXPENSE OF THE COMPANY.
(D)
ALL PAYMENTS ON ACCOUNT OF THE COMPANY'S INDEMNIFICATION OBLIGATIONS UNDER
THIS AGREEMENT SHALL BE MADE WITHIN THIRTY (30) DAYS OF INDEMNITEE'S WRITTEN
REQUEST THEREFOR UNLESS A DETERMINATION IS MADE THAT THE CLAIMS GIVING RISE TO
INDEMNITEE'S REQUEST ARE EXCLUDED CLAIMS OR ARE OTHERWISE NOT PAYABLE UNDER THIS
AGREEMENT, PROVIDED THAT ALL PAYMENTS ON ACCOUNT OF THE COMPANY'S OBLIGATION TO
PAY EXPENSES UNDER SECTION 4(C) OF THIS AGREEMENT PRIOR TO THE FINAL DISPOSITION
OF ANY CLAIM SHALL BE MADE WITHIN TWENTY (20) DAYS OF INDEMNITEE'S WRITTEN
REQUEST THEREFOR AND SUCH OBLIGATION SHALL NOT BE SUBJECT TO ANY SUCH
DETERMINATION BUT SHALL BE SUBJECT TO SECTION 4(E) OF THIS AGREEMENT.
IN THE
EVENT THE COMPANY TAKES THE POSITION THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION IN CONNECTION WITH A PROPOSED SETTLEMENT OF ANY CLAIM,
INDEMNITEE SHALL HAVE THE RIGHT AT HIS OWN EXPENSE TO UNDERTAKE DEFENSE OF ANY
SUCH CLAIM, INSOFAR AS SUCH PROCEEDING INVOLVES CLAIMS AGAINST THE INDEMNITEE,
BY WRITTEN NOTICE GIVEN TO THE COMPANY WITHIN 10 DAYS AFTER THE COMPANY HAS
NOTIFIED INDEMNITEE IN WRITING OF ITS CONTENTION THAT INDEMNITEE IS NOT ENTITLED
TO INDEMNIFICATION; PROVIDED, HOWEVER, THAT THE FAILURE TO GIVE SUCH NOTICE
WITHIN SUCH 10-DAY PERIOD SHALL NOT AFFECT OR LIMIT THE COMPANY'S OBLIGATIONS
WITH RESPECT TO ANY SUCH CLAIM IF SUCH CLAIM IS SUBSEQUENTLY DETERMINED NOT TO
BE AN EXCLUDED CLAIM OR OTHERWISE TO BE PAYABLE UNDER THIS AGREEMENT, EXCEPT TO
THE EXTENT THAT THE COMPANY IS PREJUDICED THEREBY.
IF IT IS SUBSEQUENTLY
DETERMINED IN CONNECTION WITH SUCH PROCEEDING THAT THE INDEMNIFIABLE EVENTS ARE
NOT EXCLUDED CLAIMS AND THAT INDEMNITEE, THEREFOR, IS ENTITLED TO BE INDEMNIFIED
UNDER THE PROVISIONS OF SECTION 2 HEREOF, THEN THE COMPANY SHALL PROMPTLY
INDEMNIFY INDEMNITEE.
(E)
INDEMNITEE HEREBY EXPRESSLY UNDERTAKES AND AGREES TO REIMBURSE THE COMPANY
FOR ALL LOSSES AND EXPENSES PAID BY THE COMPANY IN CONNECTION WITH ANY CLAIM
AGAINST INDEMNITEE IN THE EVENT AND ONLY TO THE EXTENT THAT A DETERMINATION
SHALL HAVE BEEN MADE BY A COURT OF COMPETENT JURISDICTION IN A DECISION FROM
WHICH THERE IS NO FURTHER RIGHT TO APPEAL THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY THE COMPANY FOR SUCH LOSSES AND EXPENSES BECAUSE THE CLAIM IS AN
EXCLUDED CLAIM OR BECAUSE INDEMNITEE IS OTHERWISE NOT ENTITLED TO PAYMENT UNDER
THIS AGREEMENT.
(F)
IN CONNECTION WITH ANY DETERMINATION 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.
(G)
INDEMNITEE SHALL COOPERATE WITH THE PERSON, PERSONS OR ENTITY MAKING A
DETERMINATION, 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
NECESSARY TO SUCH DETERMINATION.
ANY COSTS OR EXPENSES (INCLUDING REASONABLE
ATTORNEY'S FEES AND DISBURSEMENTS) INCURRED BY INDEMNITEE IN SO COOPERATING WITH
THE PERSON, PERSONS OR ENTITY MAKING A DETERMINATION SHALL