be expected to
be in whole or in any specified part not one to which Section 2(a) applies,
Indemnitee will, to the extent those Expenses are reasonably allocable among the
claims, issues and matters involved in that Proceeding, cause Indemnitee's
counsel and other service providers to effect that allocation.
SECTION 6.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(A)
IN MAKING A
DETERMINATION UNDER SECTION 5(C) WITH RESPECT TO ENTITLEMENT TO INDEMNIFICATION
UNDER SECTION 2(A), THE PERSON, PERSONS OR ENTITY MAKING THAT DETERMINATION MUST
PRESUME THAT INDEMNITEE IS ENTITLED TO THAT INDEMNIFICATION IF INDEMNITEE HAS
SUBMITTED A REQUEST FOR INDEMNIFICATION IN ACCORDANCE WITH SECTION 5(A), AND THE
COMPANY WILL HAVE THE BURDEN OF PROOF TO OVERCOME THAT PRESUMPTION IN CONNECTION
WITH THE MAKING BY ANY PERSON, PERSONS OR ENTITY OF ANY DETERMINATION CONTRARY
TO THAT PRESUMPTION.
(B)
THE TERMINATION OF ANY PROCEEDING OR OF ANY
CLAIM THEREIN, BY JUDGMENT, ORDER, SETTLEMENT OR CONVICTION, OR ON A PLEA OF
NOLO CONTENDERE OR ITS EQUIVALENT, WILL NOT, EXCEPT AS THIS AGREEMENT OTHERWISE
EXPRESSLY PROVIDES, OF ITSELF ADVERSELY AFFECT THE RIGHT OF INDEMNITEE TO
INDEMNIFICATION HEREUNDER OR, IN THE CASE OF ANY DETERMINATION UNDER
SECTION 5(C) OF INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION UNDER SECTION 2(A),
CREATE A PRESUMPTION THAT INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A MANNER
INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF
THE COMPANY OR, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, THAT
INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT INDEMNITEE'S CONDUCT WAS
UNLAWFUL.
(C)
ANY SERVICE OF INDEMNITEE AS A FUNCTIONARY
OF THE COMPANY OR ANY RELATED ENTERPRISE WHICH IMPOSES DUTIES ON, OR INVOLVES
SERVICES BY, INDEMNITEE WITH RESPECT TO ANY RELATED ENTERPRISE THAT IS AN
EMPLOYEE BENEFIT OR WELFARE PLAN OR RELATED TRUST, IF ANY, OR THE PARTICIPANTS
OR BENEFICIARIES OF THAT PLAN OR TRUST WILL BE DEEMED FOR ALL PURPOSES HEREOF AS
SERVICE AT THE REQUEST OF THE COMPANY.
ANY ACTION INDEMNITEE TAKES OR OMITS TO
TAKE IN CONNECTION WITH ANY SUCH PLAN OR TRUST WILL, IF TAKEN OR OMITTED IN GOOD
FAITH BY INDEMNITEE AND IN A MANNER INDEMNITEE REASONABLY BELIEVED TO BE IN THE
INTEREST OF THE PARTICIPANTS IN OR BENEFICIARIES OF THAT PLAN OR TRUST, BE
DEEMED TO HAVE BEEN TAKEN OR OMITTED IN A MANNER "NOT OPPOSED TO THE BEST
INTERESTS OF THE COMPANY" FOR ALL PURPOSES HEREOF.
Service by a person as an agent or representative of an Enterprise means service
on behalf of that Enterprise in its relations with persons and entities other
than the Affiliates and Functionaries of that Enterprise.
(D)
FOR PURPOSES OF ANY DETERMINATION HEREUNDER
AS TO WHETHER INDEMNITEE HAS PERFORMED SERVICES OR ENGAGED IN CONDUCT ON BEHALF
OF ANY ENTERPRISE IN GOOD FAITH, INDEMNITEE WILL BE DEEMED TO HAVE ACTED IN GOOD
FAITH IF INDEMNITEE ACTED IN RELIANCE ON THE RECORDS OF THE ENTERPRISE OR ON
INFORMATION, OPINIONS, REPORTS OR STATEMENTS, INCLUDING FINANCIAL STATEMENTS AND
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OTHER FINANCIAL INFORMATION, CONCERNING THE ENTERPRISE OR ANY OTHER PERSON WHICH
WERE