OR
DELAYED).
THE INDEMNIFYING PARTIES SHALL PAY THE FEES AND EXPENSES OF
INDEPENDENT LEGAL COUNSEL AND INDEMNIFY INDEPENDENT LEGAL COUNSEL AGAINST ANY
AND ALL EXPENSES, CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO
ITS ENGAGEMENT.
(F)
CONSEQUENCES OF DETERMINATION; REMEDIES OF INDEMNITEE.
THE
INDEMNIFYING PARTIES SHALL BE BOUND BY AND SHALL HAVE NO RIGHT TO CHALLENGE A
FAVORABLE
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DETERMINATION.
IF AN ADVERSE DETERMINATION IS MADE, OR IF FOR ANY OTHER REASON
THE INDEMNIFYING PARTIES DO NOT MAKE TIMELY INDEMNIFICATION PAYMENTS OR ADVANCES
OF EXPENSES, MANAGER OR INDEMNITEE SHALL HAVE THE RIGHT TO COMMENCE A PROCEEDING
BEFORE A COURT OF COMPETENT JURISDICTION TO CHALLENGE SUCH ADVERSE DETERMINATION
AND/OR TO REQUIRE THE INDEMNIFYING PARTIES TO MAKE SUCH PAYMENTS OR ADVANCES.
AN INDEMNITEE SHALL BE ENTITLED TO BE INDEMNIFIED FOR ALL EXPENSES INCURRED IN
CONNECTION WITH SUCH A PROCEEDING IN ACCORDANCE WITH SECTION 2 AND TO HAVE SUCH
EXPENSES ADVANCED BY THE COMPANY IN ACCORDANCE WITH SECTION 4(B).
IF MANAGER OR
AN INDEMNITEE FAILS TO TIMELY CHALLENGE AN ADVERSE DETERMINATION, OR IF MANAGER
OR AN INDEMNITEE CHALLENGES AN ADVERSE DETERMINATION AND SUCH ADVERSE
DETERMINATION HAS BEEN UPHELD BY A FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION FROM WHICH NO APPEAL CAN BE TAKEN, THEN, TO THE EXTENT AND ONLY TO
THE EXTENT REQUIRED BY SUCH ADVERSE DETERMINATION OR FINAL JUDGMENT, THE
INDEMNIFYING PARTIES SHALL NOT BE OBLIGATED TO INDEMNIFY OR ADVANCE EXPENSES TO
SUCH INDEMNITEE UNDER THIS AGREEMENT.
(G)
PRESUMPTIONS; BURDEN AND STANDARD OF PROOF.
IN CONNECTION WITH
ANY DETERMINATION, OR ANY REVIEW OF ANY DETERMINATION, BY ANY PERSON, INCLUDING
A COURT:
(I)
IT SHALL BE A PRESUMPTION THAT A DETERMINATION IS NOT REQUIRED.
(II)
IT SHALL BE A PRESUMPTION THAT AN INDEMNITEE HAS MET THE
APPLICABLE STANDARD OF CONDUCT AND THAT INDEMNIFICATION OF SUCH INDEMNITEE IS
PROPER IN THE CIRCUMSTANCES.
(III)
THE BURDEN OF PROOF SHALL BE ON THE INDEMNIFYING PARTIES TO
OVERCOME THE PRESUMPTIONS SET FORTH IN THE PRECEDING CLAUSES (I) AND (II), AND
EACH SUCH PRESUMPTION SHALL ONLY BE OVERCOME IF THE INDEMNIFYING PARTIES
ESTABLISH THAT THERE IS NO REASONABLE BASIS TO SUPPORT IT.
(IV)
THE TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER, FINDING,
SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR UPON
A PLEA OF NOLO CONTENDERE, OR ITS EQUIVALENT, SHALL NOT CREATE A PRESUMPTION
THAT INDEMNIFICATION IS NOT PROPER OR THAT AN INDEMNITEE DID NOT MEET THE
APPLICABLE STANDARD OF CONDUCT OR THAT A COURT HAS DETERMINED THAT
INDEMNIFICATION IS NOT PERMITTED BY THIS AGREEMENT OR OTHERWISE.
(V)
NEITHER THE FAILURE OF ANY PERSON OR PERSONS TO HAVE MADE A
DETERMINATION NOR AN ADVERSE DETERMINATION BY ANY PERSON OR PERSONS SHALL BE
A DEFENSE TO AN INDEMNITEE'S CLAIM OR CREATE A PRESUMPTION THAT AN INDEMNITEE
DID NOT MEET THE APPLICABLE STANDARD OF CONDUCT, AND ANY PROCEEDING COMMENCED BY
AN INDEMNITEE PURSUANT TO SECTION 4(F) SHALL BE DE NOVO WITH RESPECT TO ALL
DETERMINATIONS OF FACT AND LAW.
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5.
CERTAIN COVENANTS.
THE RIGHTS OF EACH INDEMNITEE TO BE
INDEMNIFIED UNDER