Common use of Remedies of Executive Clause in Contracts

Remedies of Executive. (a) Subject to Section 12(c), in the event that (i) a determination is made pursuant to Section 10 that Executive is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) within 90 days (or 30 days if the request was for an advance) after receipt by the Corporation of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 4 or 5 or the last sentence of Section 10(a) within ten days after receipt by the Corporation of a written request therefor, or (v) payment of indemnification pursuant to Section 3 or 6 is not made within ten days after a determination has been made that Executive is entitled to indemnification, Executive shall be entitled to an adjudication by a court of his entitlement to such indemnification or advancement of Expenses. Alternatively, Executive, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Executive shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Executive first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Executive to enforce his rights under Section 5. The Corporation shall not oppose Executive’s right to seek any such adjudication or award in arbitration. (b) In the event that a determination shall have been made pursuant to Section 10(a) that Executive is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Executive shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12 the Corporation shall have the burden of proving by a preponderance of the evidence that Executive is not entitled to indemnification or advancement of Expenses, as the case may be. (c) If a determination shall have been made pursuant to Section 10(a) that Executive is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Executive of a material fact, or an omission of a material fact necessary to make Executive’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. (d) The Corporation shall, to the fullest extent permitted by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Agreement. It is the intent of the Corporation that Executive not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Executive hereunder. The Corporation shall indemnify Executive against any and all Expenses and, if requested by Executive, shall (within 10 days after receipt by the Corporation of a written request therefor) advance, to the extent not prohibited by law, such expenses to Executive, which are incurred by Executive in connection with any action brought by Executive for indemnification or advance of Expenses from the Corporation under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Corporation, regardless of whether Executive ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be. (e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, whether by settlement or otherwise. (f) During the interval between the Corporation’s receipt of Executive’s request for indemnification and the later to occur of (a) payment in full to Executive of such indemnification, or (b) a final determination (if required) pursuant to Sections 10 and 11 that Executive is not entitled to indemnification, the Corporation shall protect Executive against loss which, for purposes of this Agreement, shall mean the taking of the necessary steps (regardless of whether such steps require expenditures to be made by the Corporation at that time) to stay, pending a final determination of Executive’s entitlement to indemnification (and, if Executive is so entitled, the payment thereof), the execution, enforcement or collection of any judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or any other amounts for which Executive may be liable in order to avoid his being or becoming in default with respect to any such amounts (such necessary steps to include, but not be limited to, the procurement of a surety bond to achieve such stay), within five business days after receipt of Executive’s written request therefor, together with a written undertaking by Executive to repay, no later than 60 days following receipt of a statement therefor from the Corporation, amounts (if any) expended by the Corporation for such purpose, if it is ultimately determined (if such determination is required) pursuant to Sections 10 and 11 that Executive is not entitled to be indemnified against such judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or other amounts.

Remedies of Executive. (a) Subject to Section 12(c), in the event that (i) a determination is made pursuant to Section 10 that Executive is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) within 90 days (or 30 days if the request was for an advance) after receipt by the Corporation of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 4 or 5 or the last sentence of Section 10(a) within ten days after receipt by the Corporation of a written request therefor, or (v) payment of indemnification pursuant to Section 3 or 6 is not made within ten days after a determination has been made that Executive is entitled to indemnification, or (vi) the Corporation or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, Executive the benefits provided or intended to be provided to Executive hereunder, Executive shall be entitled to an adjudication by a court of his entitlement to such indemnification or advancement of Expenses. Alternatively, Executive, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Executive shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Executive first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Executive to enforce his rights under Section 5. The Corporation shall not oppose Executive’s right to seek any such adjudication or award in arbitration. (b) In the event that a determination shall have been made pursuant to Section 10(a) that Executive is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Executive shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12 the Corporation shall have the burden of proving by a preponderance of the evidence that Executive is not entitled to indemnification or advancement of Expenses, as the case may be. (c) If a determination shall have been made pursuant to Section 10(a) that Executive is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Executive of a material fact, or an omission of a material fact necessary to make Executive’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. (d) The Corporation shall, to the fullest extent permitted by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Agreement. It is the intent of the Corporation that Executive not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Executive hereunder. The Corporation shall shall, to the fullest extent permitted by law, indemnify Executive against any and all Expenses and, if requested by Executive, shall (within 10 days after receipt by the Corporation of a written request therefor) advance, to the extent not prohibited by law, such expenses to Executive, which are incurred by or on behalf of Executive in connection with any action brought by Executive for indemnification or advance of Expenses from the Corporation under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Corporation, regardless of whether Executive ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be. (e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, whether by settlement or otherwise. (f) During the interval between the Corporation’s receipt of Executive’s request for indemnification and the later to occur of (a) payment in full to Executive of such indemnification, or (b) a final determination (if required) pursuant to Sections 10 and 11 that Executive is not entitled to indemnification, the Corporation shall protect Executive against loss which, for purposes of this Agreement, shall mean the taking of the necessary steps (regardless of whether such steps require expenditures to be made by the Corporation at that time) to stay, pending a final determination of Executive’s entitlement to indemnification (and, if Executive is so entitled, the payment thereof), the execution, enforcement or collection of any judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or any other amounts for which Executive may be liable in order to avoid his being or becoming in default with respect to any such amounts (such necessary steps to include, but not be limited to, the procurement of a surety bond to achieve such stay), within five business days after receipt of Executive’s written request therefor, together with a written undertaking by Executive to repay, no later than 60 days following receipt of a statement therefor from the Corporation, amounts (if any) expended by the Corporation for such purpose, if it is ultimately determined (if such determination is required) pursuant to Sections 10 and 11 that Executive is not entitled to be indemnified against such judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or other amounts.

Remedies of Executive. (a) Subject to Section 12(c), in In the event that (i) a determination is made pursuant to Section 10 ------- 8 above is made that Executive an Indemnified Party is not entitled to indemnification under indemnification, - (ii) advances of Expenses are not made pursuant to this Agreement, (iiiii) advancement of Expenses is payment has not been timely made pursuant to Section 8, (iii) no following a determination of entitlement to indemnification shall have been made pursuant to Section 10(a) within 90 days (this Agreement, or 30 days if the request was for an advance) after receipt by the Corporation of the request for indemnification, (iv) payment an Indemnified Party otherwise seeks enforcement of indemnification is not made pursuant to Section 4 or 5 or this Agreement, the last sentence of Section 10(a) within ten days after receipt by the Corporation of a written request therefor, or (v) payment of indemnification pursuant to Section 3 or 6 is not made within ten days after a determination has been made that Executive is entitled to indemnification, Executive Indemnified Party shall be entitled to a final adjudication in an adjudication by a appropriate court of the State of Delaware of his entitlement to such indemnification or advancement of Expenses. Alternatively, Executive, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Executive shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Executive first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Executive to enforce his rights under Section 5her rights. The Corporation shall not oppose Executive’s the Indemnified Party's right to seek any such adjudication or award in arbitrationadjudication. (b) In the event that a determination shall have been made pursuant to Section 10(a) that Executive an Indemnified Party is not entitled to indemnification, any in whole or in part, has been made pursuant to Section 8 above, the decision in the judicial proceeding or arbitration commenced pursuant to this provided in --------- Section 12 11(a) above shall be conducted in all respects as a made de novo trial, or arbitration, on and the merits and Executive Indemnified Party shall not be ------------- prejudiced by reason of a determination that adverse determination. In any judicial proceeding he or arbitration commenced pursuant to this Section 12 the Corporation shall have the burden of proving by a preponderance of the evidence that Executive she is not entitled to indemnification or advancement of Expenses, as the case may beindemnification. (c) If a determination shall have that an Indemnified Party is entitled to indemnification has been made pursuant to Section 10(a) that Executive is entitled Sections 8 or 9 above or otherwise ---------- - pursuant to indemnificationthe terms of this Agreement, the Corporation shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent the absence of (i) a misstatement by Executive of a material fact, or an omission misrepresentation of a material fact necessary to make Executive’s statement not materially misleading, in connection with by the request for indemnification, Indemnified Party or (ii) a prohibition specific finding (which has become final) by an appropriate court of the State of Delaware that all or any part of such indemnification under applicable is expressly prohibited by law. (d) The In any court proceeding pursuant to this Section 11, the ---------- Corporation shall, to the fullest extent permitted by law, shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and enforceable. The Corporation shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Agreement. It Agreement and is the intent of the Corporation that Executive not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract precluded from the benefits intended to be extended to Executive hereunder. The Corporation shall indemnify Executive against making any and all Expenses and, if requested by Executive, shall (within 10 days after receipt by the Corporation of a written request therefor) advance, assertion to the extent not prohibited by law, such expenses to Executive, which are incurred by Executive in connection with any action brought by Executive for indemnification or advance of Expenses from the Corporation under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Corporation, regardless of whether Executive ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may becontrary. (e) Notwithstanding anything Expenses reasonably incurred by an Indemnified Party in connection with his or her request for indemnification under this Agreement, seeking enforcement of this Agreement or to the contrary, no determination as to entitlement to indemnification under recover damages for breach of this Agreement shall be required to be made prior to the final disposition of the Proceeding, whether borne by settlement or otherwise. (f) During the interval between the Corporation’s receipt of Executive’s request for indemnification and the later to occur of (a) payment in full to Executive of such indemnification, or (b) a final determination (if required) pursuant to Sections 10 and 11 that Executive is not entitled to indemnification, the Corporation shall protect Executive against loss which, for purposes of this Agreement, shall mean the taking of the necessary steps (regardless of whether such steps require expenditures to be made by the Corporation at that time) to stay, pending a final determination of Executive’s entitlement to indemnification (and, if Executive is so entitled, the payment thereof), the execution, enforcement or collection of any judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or any other amounts for which Executive may be liable in order to avoid his being or becoming in default with respect to any such amounts (such necessary steps to include, but not be limited to, the procurement of a surety bond to achieve such stay), within five business days after receipt of Executive’s written request therefor, together with a written undertaking by Executive to repay, no later than 60 days following receipt of a statement therefor from the Corporation, amounts (if any) expended by the Corporation for such purpose, if it is ultimately determined (if such determination is required) pursuant to Sections 10 and 11 that Executive is not entitled to be indemnified against such judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or other amounts.

Remedies of Executive. (a) Subject to Section 12(c), in the event that (i) a determination is made pursuant to Section 10 that Executive is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) within 90 days (or 30 days if the request was for an advance) after receipt by the Corporation Indemnitors of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 4 or 5 or the last sentence of Section 10(a) within ten days after receipt by the Corporation Indemnitors of a written request therefor, or (v) payment of indemnification pursuant to Section 3 or 6 is not made within ten days after a determination has been made that Executive is entitled to indemnification, Executive shall be entitled to an adjudication by a court of his entitlement to such indemnification or advancement of Expenses. Alternatively, Executive, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Executive shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Executive first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Executive to enforce his rights under Section 5. The Corporation Indemnitors shall not oppose Executive’s 's right to seek any such adjudication or award in arbitration. (b) In the event that a determination shall have been made pursuant to Section 10(a) that Executive is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Executive shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12 the Corporation shall have the burden of proving by a preponderance of the evidence that Executive is not entitled to indemnification or advancement of Expenses, as the case may be.<PAGE> (c) If a determination shall have been made pursuant to Section 10(a) that Executive is entitled to indemnification, the Corporation Indemnitors shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Executive of a material fact, or an omission of a material fact necessary to make Executive’s 's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. (d) The Corporation Indemnitors shall, to the fullest extent permitted by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Corporation is Indemnitors are bound by all the provisions of this Agreement. It is the intent of the Corporation Indemnitors that Executive not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Executive’s 's rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Executive hereunder. The Corporation Indemnitors shall indemnify Executive against any and all Expenses and, if requested by Executive, shall (within 10 days after receipt by the Corporation Indemnitors of a written request therefor) advance, to the extent not prohibited by law, such expenses to Executive, which are incurred by Executive in connection with any action brought by Executive for indemnification or advance of Expenses from the Corporation Indemnitors under this Agreement or under any directors’ ' and officers’ ' liability insurance policies maintained by the CorporationIndemnitors, regardless of whether Executive ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be. (e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, whether by settlement or otherwise. (f) During the interval between the Corporation’s Indemnitors' receipt of Executive’s 's request for indemnification and the later to occur of (a) payment in full to Executive of such indemnification, or (b) a final determination (if required) pursuant to Sections 10 and 11 that Executive is not entitled to indemnification, the Corporation Indemnitors shall protect Executive against loss which, for purposes of this Agreement, shall mean the taking of the necessary steps (regardless of whether such steps require expenditures to be made by the Corporation Indemnitors at that time) to stay, pending a final determination of Executive’s 's entitlement to indemnification (and, if Executive is so entitled, the payment thereof), the execution, enforcement or collection of any judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or any other amounts for which Executive may be liable in order to avoid his being or becoming in default with respect to any such amounts (such necessary steps to include, but not be limited to, the procurement of a surety bond to achieve such stay), within five business days after receipt of Executive’s written request therefor, together with a written undertaking by Executive to repay, no later than 60 days following receipt of a statement therefor from the Corporation, amounts (if any) expended by the Corporation for such purpose, if it is ultimately determined (if such determination is required) pursuant to Sections 10 and 11 that Executive is not entitled to be indemnified against such judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or other amounts.<PAGE>

Remedies of Executive. (a) Subject to Section 12(c), in In the event that (i) a determination is made pursuant to Section 10 8 above is made that Executive an Indemnified Party is not entitled to indemnification under indemnification, (ii) advances of Expenses are not made pursuant to this Agreement, (iiiii) advancement of Expenses is payment has not been timely made pursuant to Section 8, (iii) no following a determination of entitlement to indemnification shall have been made pursuant to Section 10(a) within 90 days (this Agreement, or 30 days if the request was for an advance) after receipt by the Corporation of the request for indemnification, (iv) payment an Indemnified Party otherwise seeks enforcement of indemnification is not made pursuant to Section 4 or 5 or this Agreement, the last sentence of Section 10(a) within ten days after receipt by the Corporation of a written request therefor, or (v) payment of indemnification pursuant to Section 3 or 6 is not made within ten days after a determination has been made that Executive is entitled to indemnification, Executive Indemnified Party shall be entitled to a final adjudication in an adjudication by a appropriate court of the State of Delaware of his entitlement to such indemnification or advancement of Expenses. Alternatively, Executive, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Executive shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Executive first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Executive to enforce his rights under Section 5her rights. The Corporation shall not oppose Executivethe Indemnified Party’s right to seek any such adjudication or award in arbitrationadjudication. (b) In the event that a determination shall have been made pursuant to Section 10(a) that Executive an Indemnified Party is not entitled to indemnification, any in whole or in part, has been made pursuant to Section 8 above, the decision in the judicial proceeding or arbitration commenced pursuant to this provided in Section 12 11(a) above shall be conducted in all respects as a made de novo trial, or arbitration, on and the merits and Executive Indemnified Party shall not be prejudiced by reason of a determination that adverse determination. In any judicial proceeding he or arbitration commenced pursuant to this Section 12 the Corporation shall have the burden of proving by a preponderance of the evidence that Executive she is not entitled to indemnification or advancement of Expenses, as the case may beindemnification. (c) If a determination shall have that an Indemnified Party is entitled to indemnification has been made pursuant to Section 10(a) that Executive is entitled Sections 8 or 9 above or otherwise pursuant to indemnificationthe terms of this Agreement, the Corporation shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent the absence of (i) a misstatement by Executive of a material fact, or an omission misrepresentation of a material fact necessary to make Executive’s statement not materially misleading, in connection with by the request for indemnification, Indemnified Party or (ii) a prohibition specific finding (which has become final) by an appropriate court of the State of Delaware that all or any part of such indemnification under applicable is expressly prohibited by law. (d) The In any court proceeding pursuant to this Section 11, the Corporation shall, to the fullest extent permitted by law, shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and enforceable. The Corporation shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Agreement. It Agreement and is the intent of the Corporation that Executive not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract precluded from the benefits intended to be extended to Executive hereunder. The Corporation shall indemnify Executive against making any and all Expenses and, if requested by Executive, shall (within 10 days after receipt by the Corporation of a written request therefor) advance, assertion to the extent not prohibited by law, such expenses to Executive, which are incurred by Executive in connection with any action brought by Executive for indemnification or advance of Expenses from the Corporation under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Corporation, regardless of whether Executive ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may becontrary. (e) Notwithstanding anything Expenses reasonably incurred by an Indemnified Party in connection with his or her request for indemnification under this Agreement, seeking enforcement of this Agreement or to the contrary, no determination as to entitlement to indemnification under recover damages for breach of this Agreement shall be required to be made prior to the final disposition of the Proceeding, whether borne by settlement or otherwise. (f) During the interval between the Corporation’s receipt of Executive’s request for indemnification and the later to occur of (a) payment in full to Executive of such indemnification, or (b) a final determination (if required) pursuant to Sections 10 and 11 that Executive is not entitled to indemnification, the Corporation shall protect Executive against loss which, for purposes of this Agreement, shall mean the taking of the necessary steps (regardless of whether such steps require expenditures to be made by the Corporation at that time) to stay, pending a final determination of Executive’s entitlement to indemnification (and, if Executive is so entitled, the payment thereof), the execution, enforcement or collection of any judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or any other amounts for which Executive may be liable in order to avoid his being or becoming in default with respect to any such amounts (such necessary steps to include, but not be limited to, the procurement of a surety bond to achieve such stay), within five business days after receipt of Executive’s written request therefor, together with a written undertaking by Executive to repay, no later than 60 days following receipt of a statement therefor from the Corporation, amounts (if any) expended by the Corporation for such purpose, if it is ultimately determined (if such determination is required) pursuant to Sections 10 and 11 that Executive is not entitled to be indemnified against such judgments, penalties, fines (including any excise tax assessed with respect to any employee benefit plan) or other amounts.