PROVIDED
PROMPTLY TO INDEMNITEE.
UPON THE DUE COMMENCEMENT OF ANY JUDICIAL PROCEEDING
PURSUANT TO SECTION 11(A) OF THIS AGREEMENT, LEGAL COUNSEL SHALL BE DISCHARGED
AND RELIEVED OF ANY FURTHER RESPONSIBILITY IN SUCH CAPACITY (SUBJECT TO THE
APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT THEN PREVAILING).
SECTION 10.
PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION HEREUNDER, THE PERSON OR PERSONS OR ENTITY MAKING
SUCH DETERMINATION SHALL, TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, PRESUME
THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT IF
INDEMNITEE HAS SUBMITTED A REQUEST FOR INDEMNIFICATION IN ACCORDANCE WITH
SECTION 8(A) OF THIS AGREEMENT, AND THE COMPANY SHALL, TO THE FULLEST EXTENT NOT
PROHIBITED BY LAW, 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)
SUBJECT TO SECTION 11(D), IF THE PERSON,
PERSONS OR ENTITY EMPOWERED OR SELECTED UNDER SECTION 9 OF THIS AGREEMENT TO
DETERMINE WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION SHALL NOT HAVE MADE
A DETERMINATION WITHIN SIXTY (60) DAYS AFTER RECEIPT BY THE COMPANY OF THE
REQUEST THEREFOR, THE REQUISITE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
SHALL, TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, BE DEEMED TO HAVE BEEN MADE
AND INDEMNITEE SHALL BE ENTITLED TO SUCH INDEMNIFICATION, ABSENT (I) A
MISSTATEMENT BY INDEMNITEE OF A MATERIAL FACT, OR AN OMISSION OF A MATERIAL FACT
NECESSARY TO MAKE INDEMNITEE'S STATEMENT NOT MATERIALLY MISLEADING, IN
CONNECTION WITH THE REQUEST FOR INDEMNIFICATION, OR (II) A PROHIBITION OF SUCH
INDEMNIFICATION UNDER APPLICABLE LAW; PROVIDED, HOWEVER, THAT SUCH 60-DAY PERIOD
MAY BE EXTENDED FOR A REASONABLE TIME, NOT TO EXCEED AN ADDITIONAL THIRTY (30)
DAYS, IF THE PERSON,
6
PERSONS OR ENTITY MAKING THE DETERMINATION WITH RESPECT TO ENTITLEMENT TO
INDEMNIFICATION IN GOOD FAITH REQUIRES SUCH ADDITIONAL TIME FOR THE OBTAINING OR
EVALUATING OF DOCUMENTATION AND/OR INFORMATION RELATING THERETO; AND PROVIDED,
FURTHER, THAT THE FOREGOING PROVISIONS OF THIS SECTION 10(B) SHALL NOT APPLY IF
THE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION IS TO BE MADE BY LEGAL
COUNSEL PURSUANT TO SECTION 9(A) OF THIS AGREEMENT.
(C)
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 (EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT) OF ITSELF ADVERSELY AFFECT THE RIGHT OF
INDEMNITEE TO INDEMNIFICATION OR CREATE A PRESUMPTION THAT INDEMNITEE DID NOT
ACT IN GOOD FAITH AND IN A MANNER WHICH HE REASONABLY BELIEVED TO BE IN OR NOT
OPPOSED TO THE BEST INTERESTS OF THE COMPANY OR, WITH RESPECT TO ANY CRIMINAL
PROCEEDING, THAT INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT HIS CONDUCT WAS
UNLAWFUL.
(D)
ACTIONS OF OTHERS.
THE KNOWLEDGE AND/OR
ACTIONS, OR FAILURE TO ACT, OF ANY DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF THE
ENTERPRISE SHALL NOT BE IMPUTED TO INDEMNITEE FOR PURPOSES OF DETERMINING THE
RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT.
SECTION 11.
REMEDIES