MATERIAL FACT NECESSARY TO MAKE INDEMNITEE'S STATEMENT NOT
MATERIALLY MISLEADING, IN CONNECTION WITH THE REQUEST FOR INDEMNIFICATION OR
(II) A PROHIBITION OF SUCH INDEMNIFICATION UNDER APPLICABLE LAW.
(I)
INDEMNITEE WILL COOPERATE WITH THE
PERSON MAKING SUCH DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON UPON REASONABLE ADVANCE
REQUEST ANY DOCUMENTATION OR INFORMATION THAT IS NOT PRIVILEGED OR OTHERWISE
PROTECTED FROM DISCLOSURE AND THAT IS REASONABLY AVAILABLE TO INDEMNITEE AND
REASONABLY NECESSARY TO SUCH DETERMINATION.
ANY INDEPENDENT COUNSEL, MEMBER OF
THE BOARD, OR STOCKHOLDER OF THE COMPANY WILL ACT REASONABLY AND IN GOOD FAITH
IN MAKING A DETERMINATION REGARDING THE INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION UNDER THIS AGREEMENT.
ANY EXPENSES ACTUALLY AND REASONABLY
INCURRED BY INDEMNITEE IN SO COOPERATING WITH THE PERSON MAKING SUCH
DETERMINATION WILL BE BORNE BY THE COMPANY (IRRESPECTIVE OF THE DETERMINATION AS
TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE COMPANY HEREBY AGREES TO
INDEMNIFY, DEFEND, AND HOLD INDEMNITEE HARMLESS THEREFROM.
(J)
THE COMPANY 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, OR
UNCERTAINTY.
IN THE EVENT THAT ANY PROCEEDING TO WHICH INDEMNITEE IS A PARTY IS
RESOLVED IN ANY MANNER OTHER THAN BY ADVERSE JUDGMENT AGAINST INDEMNITEE
(INCLUDING, WITHOUT LIMITATION, SETTLEMENT OF SUCH PROCEEDING WITH OR WITHOUT
PAYMENT OF MONEY OR OTHER CONSIDERATION), IT WILL BE PRESUMED THAT INDEMNITEE
HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN SUCH PROCEEDING.
ANYONE
SEEKING TO OVERCOME THIS PRESUMPTION WILL HAVE THE BURDEN OF PROOF AND THE
BURDEN OF PERSUASION BY CLEAR AND CONVINCING EVIDENCE.
(K)
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, WILL NOT (EXCEPT AS
OTHERWISE EXPRESSLY 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 THAT HE OR SHE 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 OR HER CONDUCT WAS UNLAWFUL.
7.
REMEDIES OF INDEMNITEE.
(A)
IN THE EVENT THAT (I) A DETERMINATION IS
MADE PURSUANT TO SECTION 6 OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT, (II) ADVANCEMENT OF EXPENSES IS NOT TIMELY
MADE PURSUANT TO SECTION 5 OF THIS AGREEMENT, (III) NO DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION IS MADE PURSUANT TO SECTION 6(D)
8
OF THIS AGREEMENT WITHIN 30 DAYS AFTER RECEIPT BY THE COMPANY OF THE REQUEST FOR
INDEMNIFICATION, OR (IV) PAYMENT OF INDEMNIFICATION IS NOT MADE PURSUANT TO THIS
AGREEMENT WITHIN 30 DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN REQUEST
THEREFOR, INDEMNITEE MAY AT ANY TIME THEREAFTER BRING SUIT AGAINST THE COMPANY
TO ENFORCE INDEMNITEE'S CLAIM TO SUCH INDEMNIFICATION OR PAYMENT.
THE COMPANY
WILL NOT OPPOSE INDEMNITEE'S