INDEMNIFICATION, SUCH PERSON SHALL REASONABLY PRORATE SUCH
PART OF INDEMNIFICATION AMONG SUCH CLAIMS, ISSUES OR MATTERS. IF IT IS SO
DETERMINED THAT THE INDEMNITEE IS ENTITLED TO INDEMNIFICATION, PAYMENT TO THE
INDEMNITEE SHALL BE MADE WITHIN TEN DAYS AFTER SUCH DETERMINATION.
9.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO ENTITLEMENT TO
INDEMNIFICATION, THE INDEMNITEE SHALL BE PRESUMED TO BE ENTITLED TO
INDEMNIFICATION HEREUNDER AND THE COMPANY SHALL HAVE THE BURDEN OF PROOF IN THE
MAKING OF ANY DETERMINATION CONTRARY TO SUCH PRESUMPTION.
(B)
IF THE BOARD OF DIRECTORS, OR SUCH OTHER PERSON OR PERSONS
EMPOWERED PURSUANT TO SECTION 8 TO MAKE THE DETERMINATION OF WHETHER THE
INDEMNITEE IS ENTITLED TO INDEMNIFICATION, SHALL HAVE FAILED TO MAKE A
DETERMINATION AS TO ENTITLEMENT TO INDEMNIFICATION WITHIN 45 DAYS AFTER RECEIPT
BY THE COMPANY OF SUCH REQUEST, THE REQUISITE DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION SHALL BE DEEMED TO HAVE BEEN MADE AND THE INDEMNITEE SHALL BE
ABSOLUTELY ENTITLED TO SUCH INDEMNIFICATION, ABSENT ACTUAL AND MATERIAL FRAUD IN
THE REQUEST FOR INDEMNIFICATION OR A PROHIBITION OF INDEMNIFICATION UNDER
APPLICABLE LAW. THE TERMINATION OF ANY ACTION, SUIT, INVESTIGATION OR PROCEEDING
DESCRIBED IN SECTION 3 OR 4 HEREOF BY JUDGMENT, ORDER, SETTLEMENT OR CONVICTION,
OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT, OF ITSELF:
(I) CREATE A PRESUMPTION THAT THE INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A
MANNER WHICH HE/SHE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST
INTERESTS OF THE COMPANY, AND, WITH RESPECT TO ANY CRIMINAL ACTION OR
PROCEEDING, THAT THE INDEMNITEE HAS REASONABLE CAUSE TO BELIEVE THAT THE
INDEMNITEE'S CONDUCT WAS UNLAWFUL; OR (II) OTHERWISE
5
ADVERSELY AFFECT THE RIGHTS OF THE INDEMNITEE TO INDEMNIFICATION, EXCEPT AS MAY
BE PROVIDED HEREIN.
10.
ADVANCEMENT OF EXPENSES.
ALL REASONABLE EXPENSES ACTUALLY
INCURRED BY THE INDEMNITEE IN CONNECTION WITH ANY THREATENED OR PENDING ACTION,
SUIT OR PROCEEDING SHALL BE PAID BY THE COMPANY IN ADVANCE OF THE FINAL
DISPOSITION OF SUCH ACTION, SUIT OR PROCEEDING, IF SO REQUESTED BY THE
INDEMNITEE, WITHIN 20 DAYS AFTER THE RECEIPT BY THE COMPANY OF A STATEMENT OR
STATEMENTS FROM THE INDEMNITEE REQUESTING SUCH ADVANCE OR ADVANCES. THE
INDEMNITEE MAY SUBMIT SUCH STATEMENTS FROM TIME TO TIME. THE INDEMNITEE'S
ENTITLEMENT TO SUCH EXPENSES SHALL INCLUDE THOSE INCURRED IN CONNECTION WITH ANY
PROCEEDING BY THE INDEMNITEE SEEKING AN ADJUDICATION OR AWARD IN ARBITRATION
PURSUANT TO THIS AGREEMENT. SUCH STATEMENT OR STATEMENTS SHALL REASONABLY
EVIDENCE THE EXPENSES INCURRED BY THE INDEMNITEE IN CONNECTION THEREWITH AND
SHALL INCLUDE OR BE ACCOMPANIED BY A WRITTEN AFFIRMATION BY THE INDEMNITEE OF
THE INDEMNITEE'S GOOD FAITH BELIEF THAT THE INDEMNITEE HAS MET THE STANDARD OF
CONDUCT NECESSARY FOR INDEMNIFICATION UNDER THIS AGREEMENT AND AN UNDERTAKING BY
OR ON BEHALF OF THE INDEMNITEE TO REPAY SUCH AMOUNT IF IT IS ULTIMATELY
DETERMINED THAT THE INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED AGAINST SUCH
EXPENSES BY THE COMPANY PURSUANT TO THIS AGREEMENT OR OTHERWISE. EACH WRITTEN
UNDERTAKING TO PAY AMOUNTS