RIGHTS TO
INDEMNIFICATION, THE CORPORATION SHALL INDEMNIFY AN INDEMNITEE IN CONNECTION
WITH A PROCEEDING (OR PART THEREOF) INITIATED BY OR ON BEHALF OF SUCH INDEMNITEE
ONLY IF THE INITIATION OF SUCH PROCEEDING (OR PART THEREOF) WAS AUTHORIZED BY
THE BOARD OF DIRECTORS.
EACH PERSON WHO IS OR WAS SERVING AS A DIRECTOR,
OFFICER, PARTNER, PRINCIPAL, MEMBER, MANAGER, FIDUCIARY, EMPLOYEE, TRUSTEE OR
AGENT OF A SUBSIDIARY OF THE CORPORATION SHALL BE DEEMED TO BE SERVING, OR HAVE
SERVED, AT THE REQUEST OF THE CORPORATION.
SECTION 6.02.
PRESUMPTIONS AND EFFECT OF CERTAIN
PROCEEDINGS.
AN INDEMNITEE SEEKING INDEMNIFICATION SHALL BE PRESUMED TO BE
ENTITLED TO INDEMNIFICATION UPON SUBMISSION OF A WRITTEN REQUEST, AND THEREAFTER
THE CORPORATION SHALL HAVE THE BURDEN OF PROOF TO OVERCOME THAT PRESUMPTION IN
REACHING A CONTRARY DETERMINATION.
IN ANY EVENT, IF THE CORPORATION SHALL NOT
HAVE MADE A DETERMINATION WITHIN 30 DAYS AFTER RECEIPT OF A WRITTEN REQUEST
THEREFOR, THE INDEMNITEE SEEKING INDEMNIFICATION SHALL BE DEEMED TO BE, AND
SHALL BE, ENTITLED TO INDEMNIFICATION UNLESS (A) THE INDEMNITEE INTENTIONALLY
MISREPRESENTED OR FAILED TO DISCLOSE A MATERIAL FACT IN THE WRITTEN REQUEST FOR
INDEMNIFICATION OR (B) SUCH INDEMNIFICATION IS PROHIBITED BY THE DGCL.
THE
TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT, CONVICTION OR UPON
A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT, OF ITSELF, CREATE A
PRESUMPTION THAT THE INDEMNITEE (I) DID NOT ACT IN GOOD FAITH AND IN A MANNER
WHICH THE INDEMNITEE REASONABLY BELIEVED TO BE IN, OR AT LEAST NOT OPPOSED TO,
THE BEST INTERESTS OF THE CORPORATION
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OR (II) WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD REASONABLE CAUSE
TO BELIEVE THAT SUCH CONDUCT WAS UNLAWFUL.
FURTHERMORE, THE KNOWLEDGE OR
ACTIONS OR FAILURE TO ACT OF ANY OTHER DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF
THE CORPORATION OR OTHER ENTERPRISE, AS APPLICABLE, SHALL NOT BE IMPUTED TO THE
INDEMNITEE FOR PURPOSES OF DETERMINING THE INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION UNDER THIS ARTICLE VI.
SECTION 6.03.
ADVANCEMENT OF EXPENSES.
EXPENSES
INCURRED BY AN INDEMNITEE IN DEFENDING A PROCEEDING SHALL BE PAID BY THE
CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING AND WITHIN 15
DAYS OF RECEIPT BY THE SECRETARY OF THE CORPORATION OF (A) A WRITTEN REQUEST
THEREFOR SETTING FORTH THE BASIS FOR SUCH INDEMNIFICATION AND (B) IF REQUIRED BY
LAW AT THE TIME SUCH WRITTEN REQUEST IS MADE, AN UNDERTAKING BY OR ON BEHALF OF
THE INDEMNITEE TO REPAY SUCH AMOUNT IF IT SHALL ULTIMATELY BE DETERMINED THAT
THE INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED BY THE CORPORATION AS
AUTHORIZED IN THIS ARTICLE VI.
SUCH ADVANCES SHALL BE MADE ON AN UNSECURED
BASIS, SHALL BE INTEREST-FREE AND SHALL BE MADE WITHOUT REGARD TO THE
INDEMNITEE'S ABILITY TO REPAY SUCH AMOUNTS AND WITHOUT REGARD TO THE
INDEMNITEE'S ULTIMATE ENTITLEMENT TO INDEMNIFICATION UNDER THIS ARTICLE VI OR
OTHERWISE.
SECTION 6.04.
REMEDIES OF THE INDEMNITEE.
(A)
IF A DETERMINATION IS MADE THAT THE
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES UNDER
THIS ARTICLE VI, (I) THE INDEMNITEE SHALL