CORPORATION'S OBLIGATIONS TO INDEMNIFY OR MAKE
CONTRIBUTIONS TO THE INDEMNITEE, AS APPLICABLE, AS CONTEMPLATED IN THIS
AGREEMENT.
ARTICLE 5
PROCEDURE FOR DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION
SECTION 5.1
REQUEST BY INDEMNITEE.
TO
OBTAIN INDEMNIFICATION UNDER THIS AGREEMENT, INDEMNITEE SHALL SUBMIT TO THE
CORPORATION 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 OR AN ASSISTANT SECRETARY OF THE CORPORATION
SHALL, PROMPTLY UPON RECEIPT OF SUCH A REQUEST FOR INDEMNIFICATION, ADVISE THE
BOARD IN WRITING THAT INDEMNITEE HAS REQUESTED INDEMNIFICATION.
SECTION 5.2
DETERMINATION OF REQUEST.
UPON
WRITTEN REQUEST BY INDEMNITEE FOR INDEMNIFICATION PURSUANT TO THE FIRST SENTENCE
OF SECTION 5.1 HEREOF, A DETERMINATION, IF REQUIRED BY APPLICABLE LAW, WITH
RESPECT TO INDEMNITEE'S ENTITLEMENT THERETO SHALL BE MADE IN THE SPECIFIC CASE:
(A) IF A CHANGE IN CONTROL SHALL HAVE OCCURRED, BY INDEPENDENT COUNSEL IN A
WRITTEN
6
opinion to the Board, a copy of which shall be delivered to Indemnitee, unless
Indemnitee shall request that such determination be made in accordance with
Article 2.02-1F(1) or (2) of the TBCA; (b) if a Change in Control shall not have
occurred, in accordance with Article 2.02-1 of the TBCA.
If it is so determined
that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee
shall be made within 10 days after such determination.
Indemnitee shall
cooperate with the person making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person upon
reasonable advance request any documentation or information that is not
privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination.
Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person making such determination shall be
borne by the Corporation (irrespective of the determination as to Indemnitee's
entitlement to indemnification) and the Corporation hereby agrees to indemnify
and hold harmless Indemnitee therefrom.
SECTION 5.3
INDEPENDENT COUNSEL.
IF A
CHANGE IN CONTROL SHALL HAVE OCCURRED AND INDEMNITEE ELECTS THAT THE
DETERMINATION AS TO INDEMNIFICATION IS TO BE MADE BY INDEPENDENT COUNSEL, THE
INDEPENDENT COUNSEL SHALL BE SELECTED BY INDEMNITEE, AND INDEMNITEE SHALL GIVE
WRITTEN NOTICE TO THE CORPORATION WITHIN 10 DAYS ADVISING IT OF THE IDENTITY OF
THE INDEPENDENT COUNSEL SO SELECTED (UNLESS INDEMNITEE SHALL REQUEST THAT SUCH
SELECTION BE MADE BY THE BOARD, IN WHICH EVENT THE CORPORATION SHALL GIVE
WRITTEN NOTICE TO THE INDEMNITEE WITHIN 10 DAYS AFTER RECEIPT OF INDEMNITEE'S
REQUEST FOR INDEMNIFICATION ADVISING INDEMNITEE OF THE IDENTITY OF THE
INDEPENDENT COUNSEL SO SELECTED).
IN EITHER EVENT, INDEMNITEE OR THE
CORPORATION, AS THE CASE MAY BE, WITHIN SEVEN DAYS AFTER SUCH WRITTEN NOTICE OF
SELECTION SHALL HAVE BEEN GIVEN, MAY DELIVER TO THE CORPORATION OR TO
INDEMNITEE, AS THE CASE MAY BE, A WRITTEN OBJECTION TO SUCH SELECTION.
ANY
OBJECTION TO SELECTION OF INDEPENDENT COUNSEL PURSUANT TO THIS SECTION 5.3 MAY
BE ASSERTED