COUNSEL APPOINTED
PURSUANT TO THIS SECTION AND TO INDEMNIFY SUCH PERSON AGAINST ANY AND ALL
EXPENSES, CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO EXCEPT FOR THOSE ARISING FROM THE
INDEPENDENT COUNSEL'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
D.
IF A DETERMINATION AS TO INDEMNITEE'S
ENTITLEMENT TO INDEMNIFICATION SHALL NOT HAVE BEEN MADE PURSUANT TO THIS
AGREEMENT WITHIN 60 DAYS AFTER THE FINAL DISPOSITION OF THE MATTER THAT IS THE
SUBJECT OF THE REQUEST FOR INDEMNIFICATION, THE REQUISITE DETERMINATION OF
5
ENTITLEMENT TO INDEMNIFICATION SHALL BE DEEMED TO HAVE BEEN MADE IN FAVOR OF
INDEMNITEE, AND INDEMNITEE SHALL BE ENTITLED TO SUCH INDEMNIFICATION, ABSENT A
MISSTATEMENT OF A MATERIAL FACT IN THE INFORMATION PROVIDED BY INDEMNITEE
PURSUANT TO SECTION 5(A) AND SECTION 5(B) OR AN OMISSION OF A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE INFORMATION PROVIDED NOT MISLEADING; PROVIDED
THAT SUCH 60-DAY PERIOD MAY BE EXTENDED FOR A REASONABLE TIME, NOT TO EXCEED AN
ADDITIONAL 30 DAYS, IF THE PERSON OR PERSONS MAKING THE DETERMINATION IN GOOD
FAITH REQUIRES SUCH ADDITIONAL TIME TO OBTAIN OR EVALUATE ANY DOCUMENTATION OR
INFORMATION RELATING THERETO.
E.
IF IT IS DETERMINED THAT INDEMNITEE IS
ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE SHALL BE MADE WITHIN 10 DAYS
AFTER SUCH DETERMINATION.
6.
Presumptions and Burdon of Proof.
A.
IN MAKING ANY DETERMINATION AS TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION HEREUNDER, INDEMNITEE SHALL BE
ENTITLED TO A PRESUMPTION THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER
THIS AGREEMENT IF INDEMNITEE HAS SUBMITTED A REQUEST FOR INDEMNIFICATION IN
ACCORDANCE WITH SECTION 5(A), AND THE COMPANY SHALL HAVE THE BURDENS OF COMING
FORWARD WITH EVIDENCE AND OF PERSUASION TO OVERCOME THAT PRESUMPTION.
B.
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 OF ITSELF CREATE
A PRESUMPTION (I) THAT INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A MANNER
REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE
COMPANY, (II) THAT WITH RESPECT TO ANY CRIMINAL PROCEEDING, INDEMNITEE HAD
REASONABLE CAUSE TO BELIEVE THAT INDEMNITEE'S CONDUCT WAS UNLAWFUL OR (III) THAT
INDEMNITEE DID NOT OTHERWISE SATISFY THE APPLICABLE STANDARD OF CONDUCT TO BE
INDEMNIFIED PURSUANT TO THIS AGREEMENT.
C.
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 COMPANY
OR THE OTHER ENTITY FOR WHICH INDEMNITEE'S SERVICE GAVE RISE TO AN INDEMNIFIABLE
EVENT, INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION SUPPLIED TO INDEMNITEE
BY THE OFFICERS OF THE COMPANY OR SUCH OTHER ENTITY IN THE COURSE OF THEIR
DUTIES, OR ON THE ADVICE OF LEGAL COUNSEL FOR THE COMPANY OR SUCH OTHER ENTITY
OR ON INFORMATION OR RECORDS GIVEN OR REPORTS MADE TO THE COMPANY OR SUCH OTHER
ENTITY BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT, APPRAISER OR OTHER EXPERT
SELECTED