IS NOT
A PARTY, HE SHALL BE INDEMNIFIED AGAINST ALL EXPENSES ACTUALLY AND REASONABLY
INCURRED BY HIM OR ON HIS BEHALF IN CONNECTION THEREWITH.
5.
ADVANCEMENT OF EXPENSES. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, THE COMPANY SHALL ADVANCE ALL EXPENSES INCURRED BY OR ON BEHALF
OF INDEMNITEE IN CONNECTION WITH ANY PROCEEDING BY REASON OF INDEMNITEE'S
CORPORATE STATUS WITHIN THIRTY (30) DAYS AFTER THE RECEIPT BY THE COMPANY OF A
STATEMENT OR STATEMENTS FROM INDEMNITEE REQUESTING SUCH ADVANCE OR ADVANCES FROM
TIME TO TIME, WHETHER PRIOR TO OR AFTER FINAL DISPOSITION OF SUCH PROCEEDING.
SUCH STATEMENT OR STATEMENTS SHALL REASONABLY EVIDENCE THE EXPENSES INCURRED BY
INDEMNITEE AND SHALL INCLUDE OR BE PRECEDED OR ACCOMPANIED BY AN UNDERTAKING BY
OR ON BEHALF OF INDEMNITEE TO REPAY ANY EXPENSES ADVANCED IF IT SHALL ULTIMATELY
BE DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED AGAINST SUCH
EXPENSES. ANY ADVANCES AND UNDERTAKINGS TO REPAY PURSUANT TO THIS SECTION 5
SHALL BE UNSECURED AND INTEREST FREE.
6.
PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. IT IS THE INTENT OF THIS AGREEMENT TO SECURE FOR INDEMNITEE
RIGHTS OF INDEMNITY THAT ARE AS FAVORABLE AS MAY BE PERMITTED UNDER THE DELAWARE
GENERAL CORPORATION LAW AND PUBLIC POLICY OF THE STATE OF DELAWARE. ACCORDINGLY,
THE PARTIES AGREE THAT THE FOLLOWING PROCEDURES AND PRESUMPTIONS SHALL APPLY IN
THE EVENT OF ANY QUESTION AS TO WHETHER INDEMNITEE IS ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT:
(A)
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. THE SECRETARY OF THE COMPANY SHALL, PROMPTLY UPON
RECEIPT OF SUCH A REQUEST FOR INDEMNIFICATION, ADVISE THE BOARD OF DIRECTORS IN
WRITING THAT INDEMNITEE HAS REQUESTED INDEMNIFICATION.
4
(B)
UPON WRITTEN REQUEST BY INDEMNITEE FOR INDEMNIFICATION PURSUANT TO
THE FIRST SENTENCE OF SECTION 6(A) HEREOF, A DETERMINATION, IF REQUIRED BY
APPLICABLE LAW, WITH RESPECT TO INDEMNITEE'S ENTITLEMENT THERETO SHALL BE MADE
IN THE SPECIFIC CASE BY ONE OF THE FOLLOWING FOUR METHODS, WHICH SHALL BE AT THE
ELECTION OF THE BOARD: (1) BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS,
EVEN THOUGH LESS THAN A QUORUM, (2) BY A COMMITTEE OF DISINTERESTED DIRECTORS
DESIGNATED BY A MAJORITY VOTE OF THE DISINTERESTED DIRECTORS, EVEN THOUGH LESS
THAN A QUORUM, (3) IF THERE ARE NO DISINTERESTED DIRECTORS OR IF THE
DISINTERESTED DIRECTORS SO DIRECT, BY INDEPENDENT LEGAL COUNSEL IN A WRITTEN
OPINION TO THE BOARD OF DIRECTORS, A COPY OF WHICH SHALL BE DELIVERED TO THE
INDEMNITEE, OR (4) IF SO DIRECTED BY THE BOARD OF DIRECTORS, BY THE STOCKHOLDERS
OF THE COMPANY. FOR PURPOSES HEREOF, DISINTERESTED DIRECTORS ARE THOSE MEMBERS
OF THE BOARD OF DIRECTORS OF THE COMPANY WHO ARE NOT PARTIES TO THE ACTION, SUIT
OR PROCEEDING IN RESPECT OF WHICH INDEMNIFICATION IS SOUGHT BY INDEMNITEE.
(C)
IF THE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION IS