INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR BY AN APPRAISER, INVESTMENT BANKER
OR OTHER EXPERT SELECTED WITH REASONABLE CARE BY THE COMPANY OR AN AFFILIATE.
THE COMPANY SHALL HAVE THE BURDEN OF ESTABLISHING THE ABSENCE OF GOOD FAITH.
THE PROVISIONS OF THIS SECTION 9(G) SHALL NOT BE DEEMED TO BE EXCLUSIVE OR TO
LIMIT IN ANY WAY THE OTHER CIRCUMSTANCES IN WHICH THE INDEMNITEE MAY BE DEEMED
TO HAVE MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN THIS AGREEMENT.
7
Indemnification Agreement
(H)
THE KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO ACT, OF ANY
DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF THE COMPANY OR AN AFFILIATE SHALL NOT BE
IMPUTED TO INDEMNITEE FOR PURPOSES OF DETERMINING THE RIGHT TO INDEMNIFICATION
UNDER THIS AGREEMENT.
(I)
IF THE DETERMINATION HAS BEEN MADE THAT THE INDEMNITEE IS
ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT AND IF, (AND FOR SO LONG AS),
THE INTERESTS OF THE COMPANY, AS DETERMINED IN GOOD FAITH BY THE BOARD OF
DIRECTORS AND CONFIRMED BY INDEPENDENT COUNSEL, ARE NOT IN CONFLICT THE LEGAL
REPRESENTATION OF THE INDEMNITEE SHALL BE CONTROLLED AND UNDERTAKEN BY THE
COMPANY AND THE INDEMNITEE SHALL BE ENTITLED TO RETAIN OTHER COUNSEL TO
PARTICIPATE IN SUCH PROCEEDINGS ONLY AT HIS OR HER OWN EXPENSE; PROVIDED,
HOWEVER THAT THE COMPANY SHALL BE RESPONSIBLE FOR THE LEGAL FEES AND OTHER COSTS
INCURRED BY THE INDEMNITEE IF AND TO THE EXTENT IT SUBSEQUENTLY IS DETERMINED
THAT A CONFLICT EXISTS SUCH THAT COUNSEL FOR THE COMPANY IS NOT ABLE TO
REPRESENT BOTH THE COMPANY AND THE INDEMNITEE.
10.
REMEDIES IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO
ADVANCE EXPENSES.
(A)
IN THE EVENT THAT (I) A DETERMINATION IS MADE THAT INDEMNITEE
IS NOT ENTITLED TO INDEMNIFICATION HEREUNDER, (II) ADVANCES ARE NOT MADE
PURSUANT TO SECTION 8 HEREOF OR (III) PAYMENT HAS NOT BEEN TIMELY MADE FOLLOWING
A DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION PURSUANT TO SECTION 9 HEREOF,
INDEMNITEE SHALL BE ENTITLED TO SEEK AN ADJUDICATION IN A COURT OF COMPETENT
JURISDICTION AS TO INDEMNITEE'S ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCE.
(B)
IN THE EVENT A DETERMINATION HAS BEEN MADE IN ACCORDANCE WITH
THE PROCEDURES SET FORTH IN SECTION 9 HEREOF, IN WHOLE OR IN PART, THAT
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION, ANY JUDICIAL PROCEEDING OR
ARBITRATION REFERRED TO IN PARAGRAPH (A) OF THIS SECTION 10 SHALL BE DE
NOVO
AND INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF ANY SUCH PRIOR DETERMINATION
THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION, AND THE COMPANY SHALL BEAR
THE BURDENS OF PROOF SPECIFIED IN PARAGRAPHS 6 AND 9 HEREOF IN SUCH PROCEEDING.
(C)
IF A DETERMINATION IS MADE OR DEEMED TO HAVE BEEN MADE
PURSUANT TO THE TERMS OF SECTION 9 OR 10 HEREOF THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION, THE COMPANY SHALL BE BOUND BY SUCH DETERMINATION IN ANY
JUDICIAL PROCEEDING OR ARBITRATION IN THE ABSENCE OF (I) A MISREPRESENTATION OF
A MATERIAL FACT BY INDEMNITEE OR (II) A FINAL JUDICIAL DETERMINATION THAT ALL OR
ANY PART OF SUCH INDEMNIFICATION IS EXPRESSLY PROHIBITED BY