Section 6. Notification and Defense of Claims.
6.1. Notice by Indemnitee. Indemnitee shall give notice in writing
to the Company as soon as practicable after Indemnitee becomes aware of any
Claim with respect to which indemnification will or could be sought under this
Agreement; provided the failure of Indemnitee to give such notice, or any delay
in giving such notice, shall not relieve the Company of its obligations under
this Agreement except to the extent the Company is actually prejudiced to any
such failure or delay.
6.3.1. In the event any Claim relating to Covered Events is
by or in the right of the Company, the Indemnitee may, at the option of the
Indemnitee, either control the defense thereof or accept the defense provided,
however, that the amounts expended by the Company shall be reimbursed to the
Company by the Indemnitee if the standards and requirements of Sections
48-18-501 - 48-18-509 of the Tennessee Business Corporation Act so require.
6.3.2. In the event any Claim relating to Covered Events is
other than by or in the right of the Company, the Indemnitee may, at the option
of the Indemnitee, either control the defense thereof or require the Company to
defend. In the event that the Indemnitee requires the Company to do defend,
the Company shall promptly undertake to defend any such Claim, at the Company's
sole cost and expense, utilizing counsel of the Indemnitee's choice who has ben
approved by the Company. If appropriate, the Company shall have the right to
participate in the defense of any such Claim.
Section 7. Determinations and Related Matters.
7.1.1. If a Change in Control shall have occurred, Indemnitee
shall be entitled to a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement and the Company shall have the burden of
proof in rebutting such presumption.
7.1.2. The termination of any claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere or its equivalent, shall not adversely affect either
the right of Indemnitee to indemnification under this Agreement or the
presumptions to which Indemnitee is otherwise entitled pursuant to the
provisions of this Agreement nor create a presumption that Indemnitee did not
meet any particular standard of conduct or have a particular belief or that a
court has determined that indemnification is not permitted by applicable law.
7.2. Appeals; Enforcement.
7.2.1. In the event that (a) a Determination is made that
Indemnitee shall not be entitled to indemnification under this Agreement, (b)
any Determination to be made by Independent Legal Counsel is not made within 90
days of receipt by the Company of a request for indemnification pursuant to
Section 4.2.1 or (c) the Company fails to otherwise perform any of its