INDEMNITEE MAY PETITION A COURT OF COMPETENT JURISDICTION (OR, AT INDEMNITEE'S
OPTION PURSUANT TO SECTION 9, AN ARBITRATION) FOR RESOLUTION OF ANY OBJECTION
WHICH SHALL HAVE BEEN MADE TO THE SELECTION OF INDEPENDENT COUNSEL AND/OR FOR
THE APPOINTMENT OF ANOTHER PERSON AS INDEPENDENT COUNSEL, AND THE PERSON WITH
RESPECT TO WHOM ALL OBJECTIONS ARE SO RESOLVED OR THE PERSON SO APPOINTED SHALL
ACT AS INDEPENDENT COUNSEL. THE COMPANY AGREES TO PAY THE REASONABLE FEES AND
EXPENSES OF ANY INDEPENDENT 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
5
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 ENTITLEMENT TO
INDEMNIFICATION SHALL BE DEEMED TO HAVE BEEN MADE IN FAVOR OF INDEMNITEE (UNLESS
PROHIBITED BY APPLICABLE LAW), 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 OR 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