COMMENCEMENT OF ANY ACTION PURSUANT TO
THIS AGREEMENT THAT INDEMNIFICATION IS PROPER IN THE CIRCUMSTANCES BECAUSE
INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT, NOR AN ACTUAL
DETERMINATION BY THE COMPANY (INCLUDING BY ITS DIRECTORS OR INDEPENDENT COUNSEL)
THAT INDEMNITEE HAS NOT MET SUCH APPLICABLE STANDARD OF CONDUCT, SHALL BE A
DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT INDEMNITEE HAS NOT MET THE
APPLICABLE STANDARD OF CONDUCT.
(B)
IF THE PERSON, PERSONS OR ENTITY EMPOWERED OR SELECTED UNDER SECTION 12 OF
THIS AGREEMENT TO DETERMINE WHETHER INDEMNITEE IS ENTITLED TO INDEMNIFICATION
SHALL NOT HAVE MADE A DETERMINATION WITHIN THIRTY (30) DAYS AFTER RECEIPT BY THE
COMPANY OF THE REQUEST THEREFOR, THE REQUISITE DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION SHALL 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 FINAL JUDICIAL DETERMINATION THAT ANY OR ALL SUCH
INDEMNIFICATION IS EXPRESSLY PROHIBITED UNDER APPLICABLE LAW; PROVIDED, HOWEVER,
THAT SUCH 30-DAY PERIOD MAY BE EXTENDED FOR A REASONABLE TIME, NOT TO EXCEED AN
ADDITIONAL FIFTEEN (15) DAYS, IF THE PERSON, 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.
(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)
FOR PURPOSES OF ANY DETERMINATION OF GOOD FAITH, INDEMNITEE SHALL BE DEEMED
TO HAVE ACTED IN GOOD FAITH IF INDEMNITEE'S ACTION IS BASED ON THE RECORDS OR
BOOKS OF ACCOUNT OF THE ENTERPRISE, INCLUDING FINANCIAL STATEMENTS, OR ON
INFORMATION SUPPLIED TO INDEMNITEE BY THE
11
OFFICERS OF THE ENTERPRISE IN THE COURSE OF THEIR DUTIES, OR ON THE ADVICE OF
LEGAL COUNSEL FOR THE ENTERPRISE OR ON INFORMATION OR RECORDS GIVEN OR REPORTS
MADE TO THE ENTERPRISE BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OR BY AN
APPRAISER OR OTHER EXPERT SELECTED BY THE ENTERPRISE.
THE PROVISIONS OF THIS
SECTION 13(D) SHALL NOT BE DEEMED TO BE EXCLUSIVE OR TO LIMIT IN ANY WAY THE
OTHER CIRCUMSTANCES IN WHICH THE INDEMNITEE MAY BE DEEMED OR FOUND TO HAVE MET
THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN THIS AGREEMENT.
(E)
THE KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO ACT, OF ANY OTHER DIRECTOR,
OFFICER, TRUSTEE, PARTNER, MANAGING MEMBER, FIDUCIARY, AGENT