AND SUCH
DETERMINATION IS MADE THEREAT, OR (B) A SPECIAL MEETING OF STOCKHOLDERS IS
CALLED WITHIN FIFTEEN (15) DAYS AFTER SUCH RECEIPT FOR THE PURPOSE OF MAKING
SUCH DETERMINATION, SUCH MEETING IS HELD FOR SUCH PURPOSE WITHIN SIXTY (60) DAYS
AFTER HAVING BEEN SO CALLED AND SUCH DETERMINATION IS MADE THEREAT, OR (II) IF
THE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION IS TO BE MADE BY INDEPENDENT
COUNSEL PURSUANT TO SECTION 11(A) OF THIS AGREEMENT.
(C)
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.
(D)
RELIANCE AS SAFE HARBOR.
FOR PURPOSES OF ANY DETERMINATION OF
GOOD FAITH, INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH IF
INDEMNITEE'S ACTION IS BASED ON THE RECORDS OR BOOKS OF ACCOUNT OF THE
ENTERPRISE, INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION SUPPLIED TO
INDEMNITEE BY THE OFFICERS OF THE ENTERPRISE IN THE COURSE OF THEIR DUTIES, OR
ON THE ADVICE OF LEGAL COUNSEL FOR THE ENTERPRISE OR ON INFORMATION OR RECORDS
GIVEN OR REPORTS MADE TO THE ENTERPRISE BY AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT OR BY AN APPRAISER OR OTHER EXPERT SELECTED WITH THE REASONABLE CARE
BY
THE ENTERPRISE.
THE PROVISIONS OF THIS SECTION 12(D) 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.
9
(E)
ACTIONS OF OTHERS.
THE KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO
ACT, OF ANY DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF THE ENTERPRISE SHALL NOT BE
IMPUTED TO INDEMNITEE FOR PURPOSES OF DETERMINING THE RIGHT TO INDEMNIFICATION
UNDER THIS AGREEMENT.
SECTION 13.
REMEDIES OF INDEMNITEE.
(A)
IN THE EVENT THAT (I) A DETERMINATION IS MADE PURSUANT TO SECTION
11 OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION UNDER
THIS AGREEMENT, (II) ADVANCEMENT OF EXPENSES IS NOT TIMELY MADE PURSUANT TO
SECTION 9 OF THIS AGREEMENT, (III) NO DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION SHALL HAVE BEEN MADE PURSUANT TO SECTION 11(A) OF THIS AGREEMENT
WITHIN 45 DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST FOR INDEMNIFICATION,
(IV) PAYMENT OF INDEMNIFICATION IS NOT MADE PURSUANT TO SECTION 5 OR 6 OR THE
LAST SENTENCE OF SECTION 11(A) OF THIS AGREEMENT WITHIN TEN (10) DAYS AFTER
RECEIPT BY THE COMPANY OF A WRITTEN REQUEST THEREFOR, OR (V) PAYMENT OF
INDEMNIFICATION PURSUANT TO SECTION 3, 4 OR 7 OF THIS AGREEMENT IS NOT MADE
WITHIN TEN (10) DAYS AFTER A