THE EVENT THAT LEGAL COUNSEL IS
RETAINED PURSUANT TO SECTION 9(A), WRITTEN NOTICE OF THE SELECTION SHALL BE
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
6
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, 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