INFORMATION OR RECORDS GIVEN, OR REPORTS MADE, TO A COVERED
ENTITY BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR BY AN APPRAISER OR OTHER
EXPERT SELECTED WITH REASONABLE CARE BY A COVERED ENTITY. IN ADDITION, THE
KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO ACT, OF ANY DIRECTOR, OFFICER, AGENT OR
EMPLOYEE OF A COVERED ENTITY SHALL NOT BE IMPUTED TO INDEMNITEE FOR PURPOSES OF
DETERMINING THE RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. WHETHER OR NOT
THE FOREGOING PROVISIONS OF THIS SECTION 4(C)(II) ARE SATISFIED, IT SHALL IN ANY
EVENT BE PRESUMED THAT INDEMNITEE HAS AT ALL TIMES ACTED IN GOOD FAITH AND IN A
MANNER INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST
INTERESTS OF THE COMPANY. ANY
PERSON SEEKING TO OVERCOME THIS PRESUMPTION SHALL HAVE THE BURDEN OF PROOF AND
THE BURDEN OF PERSUASION, BY CLEAR AND CONVINCING EVIDENCE.
(III)
IF A REVIEWING PARTY CHOSEN PURSUANT TO THIS SECTION 4(C) SHALL
NOT HAVE MADE A DETERMINATION WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION
WITHIN THIRTY (30) DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST THEREFOR,
THE REQUISITE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION SHALL BE DEEMED TO
HAVE BEEN MADE AND INDEMNITEE SHALL BE ENTITLED TO SUCH INDEMNIFICATION, ABSENT
(A) A MISSTATEMENT BY INDEMNITEE OF A MATERIAL FACT, OR AN OMISSION OF A
MATERIAL FACT NECESSARY TO MAKE INDEMNITEE'S STATEMENT NOT MATERIALLY
MISLEADING, IN CONNECTION WITH THE REQUEST FOR INDEMNIFICATION, OR (B) A
PROHIBITION OF SUCH INDEMNIFICATION UNDER APPLICABLE LAW; PROVIDED, HOWEVER,
THAT SUCH 30 DAY PERIOD MAY BE EXTENDED FOR A REASONABLE TIME, NOT TO EXCEED AN
ADDITIONAL FIFTEEN (15) DAYS, IF THE REVIEWING PARTY IN GOOD FAITH REQUIRES SUCH
ADDITIONAL TIME FOR OBTAINING OR EVALUATING DOCUMENTATION AND/OR INFORMATION
RELATING THERETO; AND PROVIDED, FURTHER, THAT THE FOREGOING PROVISIONS OF THIS
SECTION 4(C)(III) SHALL NOT APPLY IF (I) THE DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION IS TO BE MADE BY THE STOCKHOLDERS OF THE COMPANY, (II) A SPECIAL
MEETING OF STOCKHOLDERS IS CALLED BY THE BOARD OF DIRECTORS OF THE COMPANY FOR
SUCH PURPOSE WITHIN THIRTY (30) DAYS AFTER THE STOCKHOLDERS ARE CHOSEN AS THE
REVIEWING PARTY, (III) SUCH MEETING IS HELD FOR SUCH PURPOSE WITHIN SIXTY (60)
DAYS AFTER HAVING BEEN SO CALLED, AND (IV) SUCH DETERMINATION IS MADE THEREAT.
(D)
APPEAL TO COURT. NOTWITHSTANDING A DETERMINATION BY A REVIEWING
PARTY CHOSEN PURSUANT TO SECTION 4(C) THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION WITH RESPECT TO A SPECIFIC CLAIM OR PROCEEDING (AN "ADVERSE
DETERMINATION"), INDEMNITEE SHALL HAVE THE RIGHT TO APPLY TO THE COURT IN WHICH
THAT CLAIM OR PROCEEDING IS OR WAS PENDING OR ANY OTHER COURT OF COMPETENT
JURISDICTION FOR THE PURPOSE OF ENFORCING INDEMNITEE'S RIGHT TO INDEMNIFICATION
PURSUANT TO THIS AGREEMENT, PROVIDED THAT INDEMNITEE SHALL COMMENCE ANY SUCH
PROCEEDING SEEKING TO ENFORCE INDEMNITEE'S RIGHT TO INDEMNIFICATION WITHIN ONE
(1) YEAR FOLLOWING THE DATE UPON WHICH INDEMNITEE IS NOTIFIED IN WRITING BY THE
COMPANY OF THE ADVERSE DETERMINATION. IN THE EVENT OF ANY DISPUTE BETWEEN THE
PARTIES CONCERNING THEIR RESPECTIVE RIGHTS AND OBLIGATIONS HEREUNDER, THE