IF FOR ANY OTHER REASON
THE COMPANY DOES NOT MAKE TIMELY INDEMNIFICATION PAYMENTS OR ADVANCES OF
EXPENSES, INDEMNITEE SHALL HAVE THE RIGHT TO COMMENCE A PROCEEDING BEFORE A
COURT OF COMPETENT JURISDICTION TO CHALLENGE SUCH ADVERSE DETERMINATION AND/OR
TO REQUIRE THE COMPANY TO MAKE SUCH PAYMENTS OR ADVANCES.
INDEMNITEE SHALL BE
ENTITLED TO BE INDEMNIFIED FOR ALL EXPENSES INCURRED IN CONNECTION WITH SUCH A
PROCEEDING IN ACCORDANCE WITH SECTION 3(B) AND TO HAVE SUCH EXPENSES ADVANCED BY
THE COMPANY IN ACCORDANCE WITH SECTION 4.
IF INDEMNITEE FAILS TO TIMELY
CHALLENGE AN ADVERSE DETERMINATION, OR IF INDEMNITEE CHALLENGES AN ADVERSE
DETERMINATION AND SUCH ADVERSE DETERMINATION HAS BEEN UPHELD BY A FINAL JUDGMENT
OF A COURT OF COMPETENT JURISDICTION FROM WHICH NO APPEAL CAN BE TAKEN, THEN, TO
THE EXTENT AND ONLY TO THE EXTENT REQUIRED BY SUCH ADVERSE DETERMINATION OR
FINAL JUDGMENT, THE COMPANY SHALL NOT BE OBLIGATED TO INDEMNIFY OR ADVANCE
EXPENSES TO INDEMNITEE UNDER THIS AGREEMENT.
(G)
PRESUMPTIONS; BURDEN AND STANDARD OF PROOF.
IN CONNECTION WITH
ANY DETERMINATION, OR ANY REVIEW OF ANY DETERMINATION, BY ANY PERSON, INCLUDING
A COURT:
(I)
IT SHALL BE A PRESUMPTION THAT A DETERMINATION IS NOT REQUIRED.
(II)
IT SHALL BE A PRESUMPTION THAT INDEMNITEE HAS MET THE APPLICABLE
STANDARD OF CONDUCT AND THAT INDEMNIFICATION OF INDEMNITEE IS PROPER IN THE
CIRCUMSTANCES.
(III)
THE BURDEN OF PROOF SHALL BE ON THE COMPANY TO OVERCOME THE
PRESUMPTIONS SET FORTH IN THE PRECEDING CLAUSES (I) AND (II), AND EACH SUCH
PRESUMPTION SHALL ONLY BE OVERCOME IF THE COMPANY ESTABLISHES THAT THERE IS NO
REASONABLE BASIS TO SUPPORT IT.
(IV)
THE TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER, FINDING,
SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR UPON
A PLEA OF NOLO CONTENDERE, OR ITS EQUIVALENT, SHALL NOT CREATE A PRESUMPTION
THAT INDEMNIFICATION IS NOT PROPER OR THAT INDEMNITEE DID NOT MEET THE
APPLICABLE STANDARD OF CONDUCT OR THAT A COURT HAS DETERMINED THAT
INDEMNIFICATION IS NOT PERMITTED BY THIS AGREEMENT OR OTHERWISE.
(V)
NEITHER THE FAILURE OF ANY PERSON OR PERSONS TO HAVE MADE A
DETERMINATION NOR AN ADVERSE DETERMINATION BY ANY PERSON OR PERSONS SHALL BE
A DEFENSE TO INDEMNITEE'S CLAIM OR CREATE A PRESUMPTION THAT INDEMNITEE DID NOT
8
MEET THE APPLICABLE STANDARD OF CONDUCT, AND ANY PROCEEDING COMMENCED BY
INDEMNITEE PURSUANT TO SECTION 5(F) SHALL BE DE NOVO WITH RESPECT TO ALL
DETERMINATIONS OF FACT AND LAW.
6.
DIRECTORS AND OFFICERS LIABILITY INSURANCE.
(A)
MAINTENANCE OF INSURANCE.
SO LONG AS THE COMPANY OR ANY OF ITS
SUBSIDIARIES MAINTAINS LIABILITY INSURANCE FOR ANY DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS OF ANY SUCH PERSON, THE COMPANY SHALL ENSURE THAT INDEMNITEE
IS COVERED BY SUCH INSURANCE IN SUCH A MANNER AS TO PROVIDE INDEMNITEE THE SAME
RIGHTS AND BENEFITS AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF THE
COMPANY'S AND ANY OF ITS SUBSIDIARIES' THEN CURRENT DIRECTORS AND OFFICERS.
(B)
NOTICE TO INSURERS.
UPON RECEIPT OF NOTICE OF A PROCEEDING
PURSUANT TO SECTION 5(A), THE COMPANY SHALL GIVE OR CAUSE TO BE GIVEN