PURSUANT TO THE FIRST SENTENCE OF THIS SECTION 1.07(E) OR
INDEMNITEE GIVES ITS INITIAL NOTICE PURSUANT TO THE SECOND SENTENCE OF THIS
SECTION 1.07(E), AS THE CASE MAY BE, EITHER THE COMPANY OR INDEMNITEE MAY
PETITION THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR OTHER COURT OF
COMPETENT JURISDICTION FOR RESOLUTION OF ANY OBJECTION WHICH SHALL HAVE BEEN
MADE BY THE COMPANY OR INDEMNITEE TO THE OTHER'S SELECTION OF INDEPENDENT
COUNSEL AND/OR FOR THE APPOINTMENT AS INDEPENDENT COUNSEL OF A PERSON OR FIRM
SELECTED BY THE COURT OR BY SUCH OTHER PERSON AS THE COURT SHALL DESIGNATE, AND
THE PERSON OR FIRM WITH RESPECT TO WHOM ALL OBJECTIONS ARE SO RESOLVED OR THE
PERSON OR FIRM SO APPOINTED WILL ACT AS INDEPENDENT COUNSEL. IN ALL EVENTS, THE
COMPANY SHALL PAY ALL OF THE REASONABLE FEES AND EXPENSES OF THE INDEPENDENT
COUNSEL INCURRED IN CONNECTION WITH THE INDEPENDENT COUNSEL'S DETERMINATION
PURSUANT TO SECTION 1.07(B).
SECTION 1.08.
PRESUMPTION OF ENTITLEMENT. IN MAKING ANY STANDARD OF
CONDUCT DETERMINATION, THE PERSON OR PERSONS MAKING SUCH DETERMINATION SHALL
PRESUME THAT INDEMNITEE HAS SATISFIED THE APPLICABLE STANDARD OF CONDUCT, AND
THE COMPANY MAY OVERCOME SUCH PRESUMPTION ONLY BY ITS OBTAINING CLEAR AND
CONVINCING EVIDENCE TO THE CONTRARY. ANY STANDARD OF CONDUCT DETERMINATION THAT
IS ADVERSE TO INDEMNITEE MAY BE CHALLENGED BY THE INDEMNITEE IN THE COURT OF
CHANCERY OF THE STATE OF DELAWARE OR OTHER COURT OF COMPETENT JURISDICTION.
NEITHER THE FAILURE OF ANY PERSON, PERSONS OR ENTITY CHOSEN TO MAKE A
DETERMINATION AS TO WHETHER INDEMNITEE HAS MET ANY PARTICULAR STANDARD OF
CONDUCT OR HAD ANY PARTICULAR BELIEF TO MAKE SUCH DETERMINATION, NOR AN ACTUAL
DETERMINATION BY SUCH PERSON, PERSONS OR ENTITY THAT INDEMNITEE HAS NOT MET SUCH
STANDARD OF CONDUCT OR DID NOT HAVE SUCH BELIEF, PRIOR TO OR AFTER THE
COMMENCEMENT OF LEGAL PROCEEDINGS BY INDEMNITEE TO SECURE A JUDICIAL
DETERMINATION THAT INDEMNITEE SHOULD BE INDEMNIFIED UNDER THIS AGREEMENT UNDER
APPLICABLE LAW, WILL BE A DEFENSE TO INDEMNITEE'S CLAIM OR CREATE A PRESUMPTION
THAT INDEMNITEE HAS NOT MET ANY PARTICULAR STANDARD OF CONDUCT OR DID NOT HAVE
ANY PARTICULAR BELIEF.
9
SECTION 1.09.
NO OTHER PRESUMPTION. FOR PURPOSES OF THIS AGREEMENT, THE
TERMINATION OF ANY CLAIM BY JUDGMENT, ORDER, SETTLEMENT (WHETHER WITH OR WITHOUT
COURT APPROVAL) OR CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS
EQUIVALENT, WILL NOT CREATE A PRESUMPTION THAT INDEMNITEE DID NOT MEET ANY
APPLICABLE STANDARD OF CONDUCT OR THAT INDEMNIFICATION HEREUNDER IS OTHERWISE
NOT PERMITTED. IN THE EVENT THAT ANY INDEMNIFIABLE CLAIM TO WHICH INDEMNITEE IS
A PARTY IS RESOLVED IN ANY MANNER OTHER THAN BY FINAL ADVERSE JUDGMENT (AS TO
WHICH ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN EXHAUSTED OR LAPSED) AGAINST
INDEMNITEE (INCLUDING, WITHOUT LIMITATION, SETTLEMENT OF SUCH INDEMNIFIABLE
CLAIM WITH OR WITHOUT PAYMENT OF MONEY OR OTHER CONSIDERATION) IT WILL BE
PRESUMED THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN SUCH
INDEMNIFIABLE CLAIM. ANYONE SEEKING TO OVERCOME THIS PRESUMPTION WILL HAVE THE
BURDEN OF PROOF AND THE BURDEN