expenses shall be
on the Company.
L.
Presumptions and Effect of Certain Proceedings.
1.
IN MAKING A DETERMINATION REQUIRED TO
BE MADE UNDER DELAWARE LAW 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 6 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.
NEITHER THE FAILURE OF THE COMPANY OR OF ANY
PERSON, PERSONS OR ENTITY 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 OR BY ANY PERSON, PERSONS OR ENTITY 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.
2.
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
17
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.
3.
FOR PURPOSES OF ANY DETERMINATION OF
GOOD FAITH, INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH IF
INDEMNITEE'S ACTION IS BASED ON THE RECORDS OR BOOKS OF ACCOUNT OF THE
ENTERPRISE, INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION SUPPLIED TO
INDEMNITEE BY THE OFFICERS OF THE ENTERPRISE IN THE COURSE OF THEIR DUTIES, OR
ON THE ADVICE OF LEGAL COUNSEL FOR THE ENTERPRISE OR THE BOARD OF DIRECTORS OR
COUNSEL SELECTED BY ANY COMMITTEE OF THE BOARD OF DIRECTORS OR ON INFORMATION OR
RECORDS GIVEN OR REPORTS MADE TO THE ENTERPRISE BY AN INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANT OR BY AN APPRAISER, INVESTMENT BANKER OR OTHER EXPERT SELECTED
WITH REASONABLE CARE BY THE COMPANY OR THE BOARD OF DIRECTORS OR ANY COMMITTEE
OF THE BOARD OF DIRECTORS.
THE PROVISIONS OF THIS SECTION 12(C) SHALL NOT BE
DEEMED TO BE EXCLUSIVE OR TO LIMIT IN ANY WAY THE OTHER CIRCUMSTANCES IN WHICH
THE INDEMNITEE MAY BE DEEMED TO HAVE MET THE APPLICABLE STANDARD OF CONDUCT SET
FORTH IN THIS AGREEMENT.
4.
THE KNOWLEDGE AND/OR ACTIONS, OR
FAILURE TO ACT, OF ANY DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF THE ENTERPRISE
SHALL NOT BE IMPUTED TO INDEMNITEE FOR PURPOSES OF DETERMINING THE RIGHT TO
INDEMNIFICATION UNDER THIS AGREEMENT.
M.
Remedies of Indemnitee.
1.
RIGHT TO PETITION