APPOINTED SHALL ACT AS INDEPENDENT
LEGAL COUNSEL UNDER SECTION 6(B) HEREOF. THE CORPORATION SHALL PAY ANY AND ALL
REASONABLE FEES AND EXPENSES OF INDEPENDENT LEGAL COUNSEL INCURRED BY SUCH
INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH ACTING PURSUANT TO SECTION 6(B)
HEREOF, AND THE CORPORATION SHALL PAY ALL REASONABLE FEES AND EXPENSES INCIDENT
TO THE PROCEDURES OF THIS SECTION 6(C), REGARDLESS OF THE MANNER IN WHICH SUCH
INDEPENDENT LEGAL COUNSEL WAS SELECTED OR APPOINTED.
(D)
THE CORPORATION ACKNOWLEDGES THAT A SETTLEMENT OR OTHER
DISPOSITION SHORT OF FINAL JUDGMENT MAY BE SUCCESSFUL IF IT PERMITS A PARTY TO
AVOID EXPENSE, DELAY, DISTRACTION, DISRUPTION AND UNCERTAINTY. IN THE EVENT THAT
ANY ACTION, CLAIM OR PROCEEDING TO WHICH A DIRECTOR IS A PARTY IS RESOLVED IN
ANY MANNER OTHER THAN BY ADVERSE JUDGMENT AGAINST SUCH DIRECTOR (INCLUDING,
WITHOUT LIMITATION, SETTLEMENT OF SUCH ACTION, CLAIM OR PROCEEDING WITH OR
WITHOUT PAYMENT OF MONEY OR OTHER CONSIDERATION) IT SHALL BE PRESUMED (UNLESS
THERE IS A PREPONDERANCE OF COMPETENT EVIDENCE TO THE CONTRARY) THAT SUCH
DIRECTOR HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN SUCH ACTION, SUIT OR
PROCEEDING.
(E)
EACH DIRECTOR SHALL REASONABLY COOPERATE WITH THE PERSON, PERSONS
OR ENTITY MAKING SUCH DETERMINATION WITH RESPECT TO SUCH DIRECTOR'S ENTITLEMENT
TO INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON, PERSONS OR ENTITY UPON
REASONABLE ADVANCE REQUEST ANY DOCUMENTATION OR INFORMATION WHICH IS NOT
PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY
AVAILABLE TO SUCH DIRECTOR AND
6
REASONABLY NECESSARY TO SUCH DETERMINATION. ANY INDEPENDENT LEGAL COUNSEL,
MEMBER OF THE BOARD OF DIRECTORS, OR STOCKHOLDER OF THE CORPORATION SHALL ACT
REASONABLY AND IN GOOD FAITH IN MAKING A DETERMINATION UNDER THE AGREEMENT OF A
DIRECTOR'S ENTITLEMENT TO INDEMNIFICATION. ANY COSTS OR EXPENSES (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED BY A DIRECTOR IN
SO COOPERATING WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION
SHALL BE BORNE BY THE CORPORATION (IRRESPECTIVE OF THE DETERMINATION AS TO SUCH
DIRECTOR'S ENTITLEMENT TO INDEMNIFICATION) AND THE CORPORATION HEREBY
INDEMNIFIES AND AGREES TO HOLD EACH DIRECTOR HARMLESS THEREFROM.
SECTION 7.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. IN
MAKING A DETERMINATION WITH RESPECT TO ENTITLEMENT OR INDEMNIFICATION HEREUNDER,
THE PERSONS OR ENTITY MAKING SUCH DETERMINATION SHALL PRESUME (UNLESS THERE IS
CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY) THAT A DIRECTOR IS ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT IF SUCH DIRECTOR HAS SUBMITTED A REQUEST
FOR INDEMNIFICATION IN ACCORDANCE WITH THIS AGREEMENT. IF THE PERSON(S) SO
EMPOWERED TO MAKE SUCH DETERMINATION SHALL HAVE FAILED TO MAKE THE REQUESTED
DETERMINATION WITHIN SIXTY (60) DAYS AFTER RECEIPT BY THE CORPORATION OF SUCH
REQUEST, THE REQUISITE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION SHALL BE
DEEMED TO HAVE BEEN MADE AND SUCH DIRECTOR SHALL BE ABSOLUTELY ENTITLED TO SUCH
INDEMNIFICATION ABSENT ACTUAL AND MATERIAL FRAUD. A DIRECTOR SHALL BE DEEMED TO
HAVE ACTED IN GOOD FAITH IF SUCH DIRECTOR'S ACTION IS BASED ON THE RECORDS OR
BOOKS OF ACCOUNT OF THE CORPORATION, INCLUDING, WITHOUT LIMITATION, FINANCIAL
STATEMENTS, OR ON INFORMATION SUPPLIED TO SUCH DIRECTOR BY THE