THIS AGREEMENT TO DETERMINE WHETHER INDEMNITEE IS
ENTITLED TO INDEMNIFICATION SHALL NOT HAVE MADE A DETERMINATION WITH 60 DAYS
AFTER RECEIPT BY THE CORPORATION OF THE REQUEST BY INDEMNITEE THEREFOR, THE
REQUISITE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION SHALL BE DEEMED TO
HAVE BEEN MADE AND INDEMNITEE SHALL BE ENTITLED TO SUCH INDEMNIFICATION, ABSENT
(I) A KNOWING MISSTATEMENT BY INDEMNITEE OF A MATERIAL FACT, OR KNOWING 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 THE DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION IN GOOD FAITH REQUIRES SUCH ADDITIONAL TIME FOR
THE OBTAINING OR EVALUATING OF DOCUMENTATION AND/OR INFORMATION RELATING TO SUCH
DETERMINATION; AND PROVIDED, FURTHER, THAT THE 60-DAY LIMITATION SET FORTH IN
THIS SECTION 5.4(B) SHALL NOT APPLY AND SUCH PERIOD SHALL BE EXTENDED AS
NECESSARY (I) IF WITHIN 30 DAYS AFTER RECEIPT BY THE CORPORATION OF THE REQUEST
FOR INDEMNIFICATION UNDER SECTION 5.1 THE BOARD HAS RESOLVED TO SUBMIT SUCH
DETERMINATION TO THE SHAREHOLDERS PURSUANT TO SECTION 5.2(B) OF THIS AGREEMENT
FOR THEIR CONSIDERATION AT AN ANNUAL MEETING THEREOF TO BE HELD WITHIN 90 DAYS
AFTER SUCH RECEIPT AND SUCH DETERMINATION IS MADE THEREAT, OR A SPECIAL MEETING
OF SHAREHOLDERS IS CALLED WITHIN 30 DAYS AFTER SUCH RECEIPT FOR THE PURPOSE OF
MAKING SUCH DETERMINATION, SUCH MEETING IS HELD FOR SUCH PURPOSE WITHIN 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 5.2(A) OF THIS AGREEMENT, IN WHICH CASE THE
APPLICABLE PERIOD SHALL BE AS SET FORTH IN SECTION 6.1(C).
(C)
THE TERMINATION OF ANY PROCEEDING OR OF ANY
CLAIM 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) BY ITSELF ADVERSELY AFFECT THE RIGHT OF INDEMNITEE TO
INDEMNIFICATION OR CREATE A PRESUMPTION THAT INDEMNITEE DID NOT CONDUCT HIMSELF
IN GOOD FAITH AND IN A MANNER THAT INDEMNITEE REASONABLY BELIEVED IN THE CASE OF
CONDUCT IN INDEMNITEE'S OFFICIAL CAPACITY, THAT WAS NOT IN THE BEST INTERESTS OF
THE CORPORATION OR, IN ALL OTHER CASES, THAT WAS NOT OPPOSED TO THE BEST
INTERESTS OF THE CORPORATION OR, WITH RESPECT TO ANY CRIMINAL PROCEEDING, THAT
INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT INDEMNITEE'S CONDUCT
8
was unlawful.
Indemnitee shall be deemed to have been found liable in respect
of any Claim only after Indemnitee shall have been so adjudged by a Court after
exhaustion of all appeals therefrom.
ARTICLE 6
CERTAIN REMEDIES OF INDEMNITEE
SECTION 6.1
INDEMNITEE ENTITLED TO
ADJUDICATION IN AN APPROPRIATE COURT.
IN THE EVENT (A) A DETERMINATION IS MADE
PURSUANT TO ARTICLE 5 THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION UNDER
THIS