Indemnification Agreement
OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY AVAILABLE TO
INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION. THE COMPANY SHALL
INDEMNIFY AND HOLD HARMLESS INDEMNITEE AGAINST AND, IF REQUESTED BY INDEMNITEE,
SHALL REIMBURSE INDEMNITEE FOR, OR ADVANCE TO INDEMNITEE, WITHIN FIVE (5)
BUSINESS DAYS OF SUCH REQUEST, ANY AND ALL COSTS AND EXPENSES (INCLUDING
ATTORNEYS' AND EXPERTS' FEES AND EXPENSES) INCURRED BY INDEMNITEE IN SO
COOPERATING WITH THE PERSON OR PERSONS MAKING SUCH DETERMINATION.
THE PERSON,
PERSONS OR ENTITY CHOSEN TO MAKE THE DETERMINATION WILL ACT REASONABLY AND IN
GOOD FAITH IN MAKING SUCH DETERMINATION.
(C)
IN THE EVENT THE DETERMINATION OF ENTITLEMENT IS TO BE MADE
BY INDEPENDENT COUNSEL, SUCH INDEPENDENT COUNSEL SHALL BE SELECTED BY THE BOARD
AND APPROVED BY INDEMNITEE.
UPON FAILURE OF THE BOARD AND THE BOARD OF
DIRECTORS TO SO SELECT SUCH INDEPENDENT COUNSEL OR UPON FAILURE OF INDEMNITEE TO
SO APPROVE, SUCH INDEPENDENT COUNSEL SHALL BE SELECTED BY THE PRESIDENT OF THE
NEW YORK COUNTY LAWYER'S ASSOCIATION.
(D)
IF THE DETERMINATION MADE PURSUANT TO SECTION 9(B) IS THAT
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION TO THE FULL EXTENT OF INDEMNITEE'S
REQUEST, INDEMNITEE SHALL HAVE THE RIGHT TO SEEK ENTITLEMENT TO INDEMNIFICATION
IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 10 HEREOF.
(E)
IF THE PERSON OR PERSONS EMPOWERED PURSUANT TO SECTION 9(B)
HEREOF TO MAKE A DETERMINATION WITH RESPECT TO ENTITLEMENT TO INDEMNIFICATION
SHALL HAVE FAILED TO MAKE THE REQUESTED DETERMINATION WITHIN 60 DAYS AFTER
RECEIPT BY THE COMPANY OF SUCH REQUEST, THE REQUISITE DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION SHALL BE DEEMED TO HAVE BEEN MADE AND INDEMNITEE
SHALL BE ABSOLUTELY ENTITLED TO SUCH INDEMNIFICATION, ABSENT (I)
MISREPRESENTATION BY INDEMNITEE OF A MATERIAL FACT IN THE REQUEST FOR
INDEMNIFICATION OR (II) A FINAL JUDICIAL DETERMINATION THAT ALL OR ANY PART OF
SUCH INDEMNIFICATION IS EXPRESSLY PROHIBITED BY LAW.
(F)
THE TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER,
SETTLEMENT OR CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT,
SHALL NOT, OF ITSELF, ADVERSELY AFFECT THE RIGHTS OF INDEMNITEE TO
INDEMNIFICATION HEREUNDER, EXCEPT AS MAY BE SPECIFICALLY PROVIDED HEREIN, OR
CREATE A PRESUMPTION THAT INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A MANNER
WHICH INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST
INTERESTS OF THE COMPANY OR CREATE A PRESUMPTION THAT (WITH RESPECT TO ANY
CRIMINAL ACTION OR PROCEEDING) INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT
INDEMNITEE'S CONDUCT WAS UNLAWFUL.
(G)
FOR PURPOSES OF ANY DETERMINATION OF GOOD FAITH HEREUNDER,
INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH IF IN TAKING AN ACTION
INDEMNITEE RELIED ON THE RECORDS OR BOOKS OF ACCOUNT OF THE COMPANY OR AN
AFFILIATE, INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION SUPPLIED TO
INDEMNITEE BY THE OFFICERS OF THE COMPANY OR AN AFFILIATE IN THE COURSE OF THEIR
DUTIES, OR ON THE ADVICE OF LEGAL COUNSEL FOR THE COMPANY OR AN AFFILIATE OR ON
INFORMATION OR RECORDS GIVEN OR REPORTS MADE TO THE COMPANY OR AN AFFILIATE BY
AN