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 OR SHE 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 OR HER
CONDUCT WAS UNLAWFUL.
(C)
FOR PURPOSES OF ANY DETERMINATION OF GOOD FAITH, INDEMNITEE SHALL
BE DEEMED TO HAVE ACTED IN GOOD FAITH TO THE EXTENT INDEMNITEE RELIED IN GOOD
FAITH ON (I) THE RECORDS OR BOOKS OF ACCOUNT OF THE ENTERPRISE, INCLUDING
FINANCIAL STATEMENTS, (II) INFORMATION SUPPLIED TO INDEMNITEE BY THE OFFICERS OF
THE ENTERPRISE IN THE COURSE OF THEIR DUTIES, (III) THE ADVICE OF LEGAL COUNSEL
FOR THE ENTERPRISE OR ITS BOARD OF DIRECTORS OR COUNSEL SELECTED BY ANY
COMMITTEE OF THE BOARD OF DIRECTORS OR (IV) INFORMATION OR RECORDS GIVEN OR
REPORTS MADE TO THE ENTERPRISE BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT, AN
APPRAISER, INVESTMENT BANKER OR OTHER EXPERT SELECTED WITH REASONABLE CARE BY
THE ENTERPRISE OR ITS BOARD OF DIRECTORS OR ANY COMMITTEE OF THE BOARD OF
DIRECTORS.
THE PROVISIONS OF THIS SECTION 11(C) SHALL NOT BE DEEMED TO BE
EXCLUSIVE OR TO LIMIT IN ANY WAY THE OTHER CIRCUMSTANCES IN WHICH INDEMNITEE MAY
BE DEEMED TO HAVE MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN THIS
AGREEMENT.
(D)
NEITHER THE KNOWLEDGE, ACTIONS NOR FAILURE TO ACT OF ANY OTHER
DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF THE ENTERPRISE SHALL BE IMPUTED TO
INDEMNITEE FOR PURPOSES OF DETERMINING THE RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT.
12.
REMEDIES OF INDEMNITEE.
(A)
SUBJECT TO SECTION 12(E), IN THE EVENT THAT (I) A DETERMINATION IS
MADE PURSUANT TO SECTION 10 OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT, (II) ADVANCEMENT OF EXPENSES IS NOT TIMELY
MADE PURSUANT TO SECTION 8 OR 12(D) OF THIS AGREEMENT, (III) NO DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION SHALL HAVE BEEN MADE PURSUANT TO SECTION 10 OF
THIS AGREEMENT WITHIN NINETY (90) DAYS AFTER RECEIPT BY THE COMPANY OF THE
REQUEST FOR INDEMNIFICATION, (IV) PAYMENT OF INDEMNIFICATION PURSUANT TO THIS
AGREEMENT IS NOT MADE (A) WITHIN THIRTY (30) DAYS AFTER A DETERMINATION HAS BEEN
MADE THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION OR (B) WITH RESPECT TO
INDEMNIFICATION PURSUANT TO SECTIONS 4, 5 AND 12(D) OF THIS AGREEMENT, WITHIN
THIRTY (30) DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN REQUEST THEREFOR, OR
(V) THE COMPANY OR ANY OTHER PERSON OR ENTITY TAKES OR THREATENS TO TAKE ANY
ACTION TO DECLARE THIS AGREEMENT VOID OR UNENFORCEABLE, OR INSTITUTES ANY
LITIGATION OR OTHER ACTION
8
OR PROCEEDING DESIGNED TO DENY, OR TO RECOVER FROM, INDEMNITEE THE BENEFITS
PROVIDED OR INTENDED TO BE PROVIDED TO INDEMNITEE HEREUNDER, INDEMNITEE SHALL BE
ENTITLED TO AN ADJUDICATION BY A COURT OF HIS OR HER ENTITLEMENT TO SUCH
INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.