DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON, PERSONS OR ENTITY UPON
REASONABLE ADVANCE REQUEST ANY DOCUMENTATION OR INFORMATION WHICH IS NOT
PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY
AVAILABLE TO INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION. ANY
INDEPENDENT COUNSEL, MEMBER OF THE BOARD OF DIRECTORS OR STOCKHOLDER OF THE
COMPANY SHALL ACT REASONABLY AND IN GOOD FAITH IN MAKING A DETERMINATION
REGARDING THE INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION UNDER THIS AGREEMENT.
ANY COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED BY
6
INDEMNITEE IN SO COOPERATING WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH
DETERMINATION SHALL BE BORNE BY THE COMPANY (IRRESPECTIVE OF THE DETERMINATION
AS TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE COMPANY HEREBY
INDEMNIFIES AND AGREES TO HOLD INDEMNITEE HARMLESS THEREFROM.
(H)
THE COMPANY ACKNOWLEDGES THAT A SETTLEMENT OR OTHER DISPOSITION
SHORT OF FINAL JUDGMENT MAY BE SUCCESSFUL IF IT PERMITS A PARTY TO AVOID
EXPENSE, DELAY, DISTRACTION, DISRUPTION AND UNCERTAINTY. IN THE EVENT THAT ANY
ACTION, CLAIM OR PROCEEDING TO WHICH INDEMNITEE IS A PARTY IS RESOLVED IN ANY
MANNER OTHER THAN BY ADVERSE JUDGMENT AGAINST INDEMNITEE (INCLUDING, WITHOUT
LIMITATION, SETTLEMENT OF SUCH ACTION, CLAIM OR PROCEEDING WITH OR WITHOUT
PAYMENT OF MONEY OR OTHER CONSIDERATION) IT SHALL BE PRESUMED THAT INDEMNITEE
HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN SUCH ACTION, SUIT OR
PROCEEDING. ANYONE SEEKING TO OVERCOME THIS PRESUMPTION SHALL HAVE THE BURDEN OF
PROOF AND THE BURDEN OF PERSUASION BY CLEAR AND CONVINCING EVIDENCE.
(I)
THE TERMINATION OF ANY PROCEEDING OR OF ANY CLAIM, ISSUE OR
MATTER THEREIN, BY JUDGMENT, ORDER, SETTLEMENT OR CONVICTION, OR UPON A PLEA OF
NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT (EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT) OF ITSELF ADVERSELY AFFECT THE RIGHT OF INDEMNITEE
TO INDEMNIFICATION OR CREATE A PRESUMPTION THAT INDEMNITEE DID NOT ACT IN GOOD
FAITH AND IN A MANNER WHICH HE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO
THE BEST INTERESTS OF THE COMPANY OR, WITH RESPECT TO ANY CRIMINAL PROCEEDING,
THAT INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT HIS CONDUCT WAS UNLAWFUL.
7.
REMEDIES OF INDEMNITEE.
(A)
IN THE EVENT THAT (I) A DETERMINATION IS MADE PURSUANT TO
SECTION 6 OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION
UNDER THIS AGREEMENT, (II) ADVANCEMENT OF EXPENSES IS NOT TIMELY MADE PURSUANT
TO SECTION 5 OF THIS AGREEMENT, (III) NO DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION IS MADE PURSUANT TO SECTION 6(B) OF THIS AGREEMENT WITHIN 90
DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST FOR INDEMNIFICATION,
(IV) PAYMENT OF INDEMNIFICATION IS NOT MADE PURSUANT TO THIS AGREEMENT WITHIN
TEN (10) DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN REQUEST THEREFOR OR
(V) PAYMENT OF INDEMNIFICATION IS NOT MADE WITHIN TEN (10) DAYS AFTER A
DETERMINATION HAS BEEN MADE THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION OR
SUCH DETERMINATION IS DEEMED TO HAVE BEEN MADE PURSUANT TO SECTION 6 OF THIS
AGREEMENT, INDEMNITEE SHALL BE ENTITLED TO AN