AND TO FULLY INDEMNIFY AND HOLD HARMLESS SUCH INDEPENDENT
COUNSEL AGAINST ANY AND ALL EXPENSES, CLAIMS, LIABILITIES AND DAMAGES ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
13.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO ENTITLEMENT TO
INDEMNIFICATION HEREUNDER, THE PERSON, PERSONS OR ENTITY MAKING SUCH
DETERMINATION SHALL PRESUME THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER
THIS AGREEMENT IF INDEMNITEE HAS SUBMITTED A REQUEST FOR INDEMNIFICATION IN
ACCORDANCE WITH SECTION 11(B) OF THIS AGREEMENT, AND THE COMPANY SHALL 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.
NEITHER THE FAILURE OF THE COMPANY (INCLUDING BY ITS DIRECTORS OR INDEPENDENT
COUNSEL) TO HAVE MADE A DETERMINATION PRIOR TO THE 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
10
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