NEITHER THE FAILURE OF THE COMPANY (INCLUDING BY ITS DIRECTORS OR INDEPENDENT
COUNSEL) TO HAVE MADE A DETERMINATION BEFORE TO THE COMMENCEMENT OF ANY ACTION
PURSUANT TO THIS AGREEMENT THAT INDEMNIFICATION IS PROPER IN THE CIRCUMSTANCES
BECAUSE INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT, NOR AN ACTUAL
6
DETERMINATION BY THE COMPANY (INCLUDING BY ITS DIRECTORS OR INDEPENDENT COUNSEL)
THAT INDEMNITEE HAS NOT MET SUCH APPLICABLE STANDARD OF CONDUCT, WILL BE A
DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT INDEMNITEE HAS NOT MET THE
APPLICABLE STANDARD OF CONDUCT.
(E)
INDEMNITEE WILL 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 ANY ONE OR MORE OF THE OFFICERS, DIRECTORS, OR EMPLOYEES 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 BY THE ENTERPRISE.
IN ADDITION, THE KNOWLEDGE OR ACTIONS,
OR FAILURE TO ACT, OF ANY DIRECTOR, OFFICER, AGENT, OR EMPLOYEE OF THE
ENTERPRISE WILL 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 6(E) ARE SATISFIED, IT WILL IN ANY EVENT BE PRESUMED
THAT INDEMNITEE HAS AT ALL TIMES ACTED IN GOOD FAITH AND IN A MANNER HE OR SHE
REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE
COMPANY.
ANYONE SEEKING TO OVERCOME THIS PRESUMPTION WILL HAVE THE BURDEN OF
PROOF AND THE BURDEN OF PERSUASION BY CLEAR AND CONVINCING EVIDENCE.
(F)
IF THE PERSON EMPOWERED OR SELECTED UNDER
SECTION 6 TO DETERMINE WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION HAS NOT
MADE A DETERMINATION WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST
THEREFOR, THE REQUISITE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION WILL BE
DEEMED TO HAVE BEEN MADE AND INDEMNITEE WILL BE ENTITLED TO SUCH INDEMNIFICATION
ABSENT (I) 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 (II) A
PROHIBITION OF SUCH INDEMNIFICATION UNDER APPLICABLE LAW; PROVIDED, HOWEVER,
THAT SUCH 60-DAY PERIOD MAY BE EXTENDED FOR A REASONABLE TIME, NOT TO EXCEED AN
ADDITIONAL 30 DAYS, IF THE PERSON MAKING SUCH DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION IN GOOD FAITH REQUIRES SUCH ADDITIONAL TIME TO
OBTAIN OR EVALUATE DOCUMENTATION INFORMATION RELATING THERETO.
(G)
INDEMNITEE WILL COOPERATE WITH THE PERSON
MAKING SUCH DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON UPON REASONABLE ADVANCE
WRITTEN REQUEST ANY DOCUMENTATION OR INFORMATION THAT IS NOT PRIVILEGED OR
OTHERWISE PROTECTED FROM DISCLOSURE AND THAT IS REASONABLY AVAILABLE TO
INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION.
ANY INDEPENDENT
COUNSEL OR MEMBER