INFORMATION WHICH IS NOT
PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY
AVAILABLE TO INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION IN THE
DISCRETION OF THE BOARD OF DIRECTORS OR INDEPENDENT COUNSEL IF RETAINED PURSUANT
TO CLAUSE (II)(B) OF THIS SECTION 10(B).
ANY EXPENSES INCURRED BY INDEMNITEE IN
SO COOPERATING WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION
SHALL BE BORNE BY THE COMPANY (IRRESPECTIVE OF THE DETERMINATION AS TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE COMPANY SHALL INDEMNIFY AND
HOLD INDEMNITEE HARMLESS THEREFROM.
(C)
THE COMPANY SHALL PAY THE REASONABLE FEES
AND EXPENSES OF INDEPENDENT COUNSEL, IF ONE IS APPOINTED.
Section 11.
Presumptions and Effect of
Certain Proceedings.
(A)
IN MAKING ANY DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION HEREUNDER, THE PERSON OR PERSONS OR ENTITY MAKING
SUCH DETERMINATION SHALL PRESUME THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION
UNDER THIS AGREEMENT IF INDEMNITEE HAS
5
SUBMITTED A REQUEST FOR INDEMNIFICATION IN ACCORDANCE WITH SECTION 10(A) OF THIS
AGREEMENT, AND THE COMPANY SHALL HAVE THE BURDEN OF PROOF TO OVERCOME THAT
PRESUMPTION IN CONNECTION WITH THE MAKING OF ANY DETERMINATION CONTRARY TO THAT
PRESUMPTION.
(b)
The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction,
upon a plea of nolo contendere or its equivalent, or entry of an order of
probation prior to judgment, does not create a presumption that Indemnitee did
not meet the requisite standard of conduct described herein for indemnification.
(C)
THE KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO
ACT, OF ANY OTHER DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE COMPANY OR ANY
OTHER DIRECTOR, TRUSTEE, OFFICER, PARTNER, MANAGER, MANAGING MEMBER, FIDUCIARY,
EMPLOYEE OR AGENT OF ANY OTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP,
LIMITED LIABILITY COMPANY, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN OR OTHER
ENTERPRISE SHALL NOT BE IMPUTED TO INDEMNITEE FOR PURPOSES OF DETERMINING ANY
OTHER RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT.
Section 12.
Remedies of Indemnitee.
(A)
IF (I) A DETERMINATION IS MADE PURSUANT TO
SECTION 10(B) OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT, (II) ADVANCE OF EXPENSES IS NOT TIMELY
MADE PURSUANT TO SECTION 9 OF THIS AGREEMENT, (III) NO DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION SHALL HAVE BEEN MADE PURSUANT TO SECTION 10(B) OF
THIS AGREEMENT WITHIN 30 DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST FOR
INDEMNIFICATION, (IV) PAYMENT OF INDEMNIFICATION IS NOT MADE PURSUANT TO
SECTION 7 OF THIS AGREEMENT WITHIN TEN DAYS AFTER RECEIPT BY THE COMPANY OF A
WRITTEN REQUEST THEREFOR, OR (V) PAYMENT OF INDEMNIFICATION IS NOT MADE WITHIN
TEN DAYS AFTER A DETERMINATION HAS BEEN MADE THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION, INDEMNITEE SHALL BE ENTITLED TO AN ADJUDICATION IN AN
APPROPRIATE COURT LOCATED IN THE STATE OF MARYLAND, OR IN ANY OTHER COURT OF
COMPETENT JURISDICTION, OF HIS ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCE OF
EXPENSES.
ALTERNATIVELY, INDEMNITEE, AT HIS OPTION, MAY SEEK AN AWARD IN
ARBITRATION TO BE CONDUCTED BY A SINGLE ARBITRATOR PURSUANT TO THE COMMERCIAL
ARBITRATION