PREPARED OR SUPPLIED TO INDEMNITEE BY:
(1)
ONE OR MORE OF THE OFFICERS OR EMPLOYEES OF
THE ENTERPRISE;
(2)
APPRAISERS, ENGINEERS, INVESTMENT BANKERS,
LEGAL COUNSEL OR OTHER PERSONS AS TO MATTERS INDEMNITEE REASONABLY BELIEVED WERE
WITHIN THE PROFESSIONAL OR EXPERT COMPETENCE OF THOSE PERSONS; AND
(3)
ANY COMMITTEE OF THE BOARD OF DIRECTORS OR
EQUIVALENT MANAGING BODY OF THE ENTERPRISE OF WHICH INDEMNITEE IS OR WAS, AT THE
RELEVANT TIME, NOT A MEMBER;
provided, however, that if Indemnitee has actual knowledge as to any matter that
makes any such reliance unwarranted as to that matter, this Section 6(d) will
not entitle Indemnitee to any presumption that Indemnitee acted in good faith
respecting that matter.
(E)
FOR PURPOSES OF ANY DETERMINATION HEREUNDER
AS TO WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER SECTION 2(A),
NEITHER THE KNOWLEDGE NOR THE CONDUCT OF ANY OTHER FUNCTIONARY OF THE COMPANY OR
ANY RELATED ENTERPRISE, OTHER THAN INDEMNITEE, SHALL BE IMPUTED TO INDEMNITEE,
BUT INDEMNITEE WILL BE IRREBUTABLY PRESUMED TO HAVE READ AND UNDERSTOOD THE
COMPANY'S CODE OF BUSINESS CONDUCT FOR PURPOSES OF ANY DETERMINATION UNDER THE
CHARTER DOCUMENTS OR THIS AGREEMENT AS TO WHETHER INDEMNITEE HAS PERFORMED
SERVICES OR ENGAGED IN CONDUCT ON BEHALF OF ANY ENTERPRISE IN GOOD FAITH.
(F)
INDEMNITEE WILL BE DEEMED A PARTY TO A
PROCEEDING FOR ALL PURPOSES HEREOF IF INDEMNITEE IS NAMED AS A DEFENDANT OR
RESPONDENT IN A COMPLAINT OR PETITION FOR RELIEF IN THAT PROCEEDING, REGARDLESS
OF WHETHER INDEMNITEE EVER IS SERVED WITH PROCESS OR MAKES AN APPEARANCE IN THAT
PROCEEDING.
(G)
IF INDEMNITEE SERVES OR SERVED AS A
FUNCTIONARY OF A RELATED ENTERPRISE, THAT SERVICE WILL BE DEEMED TO BE "AT THE
REQUEST OF THE COMPANY" FOR ALL PURPOSES HEREOF NOTWITHSTANDING THAT THE REQUEST
IS NOT EVIDENCED BY A WRITING OR SHOWN TO HAVE BEEN MADE ORALLY.
IN THE EVENT
THE COMPANY WERE TO EXTEND THE RIGHTS OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES HEREUNDER TO INDEMNITEE'S SERVING AT THE REQUEST OF THE COMPANY AS A
FUNCTIONARY OF ANY ENTERPRISE OTHER THAN THE COMPANY OR A RELATED ENTERPRISE,
INDEMNITEE MUST SHOW THAT THE REQUEST WAS MADE BY THE BOARD OR AT ITS
AUTHORIZATION.
SECTION 7.
REMEDIES OF INDEMNITEE IN CERTAIN CASES.
(A)
IF INDEMNITEE MAKES A
WRITTEN REQUEST IN COMPLIANCE WITH SECTION 5(A) FOR INDEMNIFICATION UNDER
SECTION 2(A) AND EITHER:
(1)
NO DETERMINATION AS TO THE ENTITLEMENT OF
INDEMNITEE TO THAT INDEMNIFICATION IS MADE BEFORE THE LAST TO OCCUR OF (A) THE
CLOSE OF BUSINESS ON THE DATE, IF ANY, THE COMPANY HAS SPECIFIED UNDER
SECTION 5(A) AS THE OUTSIDE DATE FOR THAT DETERMINATION OR (B) THE ELAPSE OF THE
45-DAY PERIOD BEGINNING THE DAY AFTER THE DATE THE COMPANY RECEIVES THAT
REQUEST; OR
8
(2)
A DETERMINATION IS MADE UNDER
SECTION 5(C) THAT INDEMNITEE IS NOT ENTITLED TO THAT INDEMNIFICATION IN WHOLE OR
IN ANY PART IN RESPECT OF ANY CLAIM TO WHICH THAT REQUEST RELATED,
Indemnitee will be entitled to an adjudication from the Court of Chancery of
Indemnitee's entitlement to that indemnification.
Alternatively,