APPLICABLE STANDARD OF CONDUCT OR IS REQUIRED TO REPAY ADVANCED EXPENSES SHALL
BE MADE BY INDEPENDENT COUNSEL SELECTED AS PROVIDED IN THIS PARAGRAPH 7(C).
THE
INDEPENDENT COUNSEL SHALL BE SELECTED BY THE BOARD OF DIRECTORS.
INDEMNITEE
MAY, WITHIN 10 DAYS AFTER WRITTEN NOTICE OF SELECTION SHALL HAVE BEEN GIVEN,
DELIVER TO THE CORPORATION, A WRITTEN OBJECTION TO SUCH SELECTION.
ABSENT A
TIMELY OBJECTION, THE PERSON SO SELECTED SHALL ACT AS INDEPENDENT COUNSEL.
IF A
WRITTEN OBJECTION IS MADE, THE INDEPENDENT COUNSEL SELECTED MAY NOT SERVE AS
INDEPENDENT COUNSEL UNLESS AND UNTIL SUCH OBJECTION IS WITHDRAWN.
IF, WITHIN
20 DAYS AFTER SUBMISSION BY INDEMNITEE OF A WRITTEN REQUEST FOR INDEPENDENT
COUNSEL, NO INDEPENDENT COUNSEL SHALL HAVE BEEN SELECTED AND NOT OBJECTED TO,
EITHER THE CORPORATION OR INDEMNITEE MAY PETITION ANY COURT OF COMPETENT
JURISDICTION FOR THE APPOINTMENT AS INDEPENDENT COUNSEL OF A PERSON SELECTED BY
THE COURT OR BY SUCH OTHER PERSON AS THE COURT SHALL DESIGNATE, AND THE PERSON
SO APPOINTED SHALL ACT AS INDEPENDENT COUNSEL UNDER PARAGRAPH 7(C) HEREOF.
THE
CORPORATION SHALL PAY ANY AND ALL REASONABLE FEES AND EXPENSES OF INDEPENDENT
COUNSEL INCURRED BY SUCH INDEPENDENT COUNSEL IN CONNECTION WITH ACTING PURSUANT
TO PARAGRAPH 7(C) HEREOF, AND THE CORPORATION SHALL PAY ALL REASONABLE FEES AND
EXPENSES INCIDENT TO THE PROCEDURES OF THIS PARAGRAPH 7(C), REGARDLESS OF THE
MANNER IN WHICH SUCH INDEPENDENT COUNSEL WAS SELECTED OR APPOINTED.
6
8.
RIGHT TO SEEK COURT-ORDERED
INDEMNIFICATION AND ADVANCE OF EXPENSES.
NOTHING CONTAINED IN THIS AGREEMENT
SHALL ABROGATE OR LIMIT THE RIGHT OF INDEMNITEE TO APPLY TO A COURT OF COMPETENT
JURISDICTION FOR INDEMNIFICATION OR AN ADVANCE OF EXPENSES TO THE EXTENT
PERMITTED BY SECTION 8.54 OF CHAPTER 156D OR ANY SUCCESSOR SECTION THERETO THAT
INCREASES THE SCOPE OF PERMITTED INDEMNIFICATION.
9.
INDEMNIFICATION FOR EXPENSES OF A
WITNESS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT
THAT INDEMNITEE IS, BY REASON OF HIS OR HER CORPORATE STATUS, A WITNESS IN ANY
PROCEEDING TO WHICH INDEMNITEE IS NOT A PARTY, HE OR SHE SHALL BE INDEMNIFIED
AGAINST ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY HIM OR ON HIS BEHALF IN
CONNECTION THEREWITH.
10.
REMEDIES.
THE RIGHT TO INDEMNIFICATION AND
ADVANCEMENT OF EXPENSES AS PROVIDED BY THIS AGREEMENT SHALL BE ENFORCEABLE BY
INDEMNITEE IN ANY COURT OF COMPETENT JURISDICTION IF THE CORPORATION DENIES SUCH
REQUEST, IN WHOLE OR IN PART, OR IF NO DISPOSITION THEREOF IS MADE WITHIN THE
APPLICABLE PERIOD REFERRED TO IN PARAGRAPH 7.
UNLESS OTHERWISE REQUIRED BY LAW,
THE BURDEN OF PROVING THAT INDEMNIFICATION IS NOT APPROPRIATE SHALL BE ON THE
CORPORATION.
NEITHER THE FAILURE OF THE CORPORATION TO HAVE MADE A
DETERMINATION PRIOR TO THE COMMENCEMENT OF SUCH ACTION THAT INDEMNIFICATION IS
PROPER IN THE CIRCUMSTANCES BECAUSE INDEMNITEE HAS MET THE APPLICABLE STANDARD
OF CONDUCT, NOR AN ACTUAL DETERMINATION BY THE CORPORATION PURSUANT TO
PARAGRAPH 7 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 STANDARD OF CONDUCT.