Common use of Presumptions and Effect of Certain Proceedings Clause in Contracts

Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE

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 shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(b) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by the Disinterested 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 the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law and the Articles, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(bthereto. (c) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he or she reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Xxxxxxxxxx’s conduct was unlawful. Indemnitee . (d) For purposes of any determination of good faith, Xxxxxxxxxx shall be deemed to have been 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 directors, manager, or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found liable to have met the applicable standard of conduct set forth in respect this Agreement. (e) The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, trustee, general partner, manager, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. No initial finding by the Board of Directors, its counsel, Independent Legal Counsel, arbitrators or the stockholders shall be effective to deprive Indemnitee of the protection of this indemnity, nor shall a court or other forum to which Indemnitee may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a determination any contrary to determination. No initial determination, in whole or in part, that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement Indemnitee is not entitled to indemnification unless such Company provides information sufficient to overcome such shall create a presumption by clear and convincing evidencein any judicial proceeding or arbitration that Indemnitee has not met the applicable standard of conduct for, or is otherwise not entitled to, indemnification. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled make the determination shall have failed to indemnification shall not have made a make the requested determination within 60 days after receipt by such any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or its equivalent, or other disposition or partial disposition of any Proceeding, or any other event which could enable the Company of to determine the Indemnitee's request for ’s entitlement to indemnification, the requisite required determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be absolutely entitled to such indemnificationindemnification under this Agreement, absent (ia) a knowing misstatement by Indemnitee of a material fact, misrepresentation or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, by the Indemnitee in connection with Indemnitee's the request for indemnification, indemnification or (iib) a prohibition specific finding that all or any part of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining is expressly prohibited by law or evaluating of documentation and/or information relating to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofAgreement. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) settlement, arbitration award or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself not, of itself, (i) adversely affect the rights of Indemnitee to indemnification except as indemnification may be expressly prohibited under this Agreement, or create (ii) establish a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect regard to any criminal Proceeding, that Indemnitee had reasonable cause factual matter relevant to believe that his conduct was unlawful. Indemnitee shall be deemed determining Indemnitee’s rights to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEindemnification hereunder.

Presumptions and Effect of Certain Proceedings. (a) The Secretary of the Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 10 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a the making of any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested indemnification shall not have made a determination within 60 days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, to the fullest extent not prohibited by law and absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person making or persons so empowered to make the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining to obtain or evaluating of evaluate documentation and/or information relating to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b) 11 shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 10(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c10(a) hereofof this Agreement. The termination of any Proceeding action, suit, investigation or of any Claim, issue proceeding described in Section 3 or matter 4 hereof by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (x) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company orCompany, and, with respect to any criminal Proceedingaction or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful. ; or (y) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue provided herein or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEapplicable law.

Presumptions and Effect of Certain Proceedings. (a)In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof8(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (b)If the person, persons or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 8 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b9(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 30 15 days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 75 days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c8(b) hereofof this Agreement. The (c)The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEESection 10.

Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification or the advancement of expenses hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification or advancement of expenses under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to or the advancement of expenses in accordance with Section 5.1 hereof8(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including its board of directors or independent legal 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 its board of directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person or persons determining entitlement to indemnification) as create a basis for a determination presumption that Indemnitee has not met the applicable standard of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidenceconduct. If the person person, persons or persons entity empowered or selected under Section 8 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b9(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board of Directors has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c8(b) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such 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 used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 14(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b13(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c12(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. For purposes of any determination of good faith, Indemnitee shall be deemed to have been found liable acted in respect 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 directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Enterprise. The provisions of this Section 13(d) 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. Whether or not the foregoing provisions of this Section 13(d) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Company. The knowledge and/or actions, or failure to act, of any Claimdirector, issue officer, trustee, partner, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof10(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by its directors or independent legal 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 legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person or persons determining entitlement to indemnification) as create a basis for a determination presumption that Indemnitee has not met the applicable standard of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidenceconduct. If the person person, persons or persons entity empowered or selected under Section 11 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b12(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 11(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board of Directors has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c11(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 45 days (or in the case of an advancement of Expenses in accordance with Section 16, 20 days; provided that Indemnitee has, if and to the extent required by the DGCL, delivered the undertaking contemplated in Section 16) after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that and such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making the determination with respect to entitlement right to indemnification shall be enforceable by Indemnitee in good faith requires such additional time for the obtaining or evaluating any court of documentation and/or information relating to such determinationcompetent jurisdiction; provided further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b) 9 shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counselthe stockholders pursuant to Section 8(a) of this Agreement and if (A) within 15 days after receipt by the Company of the request for such determination, in which case the applicable period shall Board or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be as set forth in Section 6.1(cheld within 75 days after such receipt and such determination is made thereat, or (B) hereofa special meeting of stockholders is called 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights (except as otherwise expressly provided in this Agreement), of Indemnitee to indemnification or itself: (a) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (b) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of In making a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making the determination with respect to entitlement to indemnification in good faith requires hereunder, the person, persons or entity making such additional time for determination shall, to the obtaining or evaluating of documentation and/or information relating fullest extent not prohibited by law, presume that Indemnitee is entitled to such determination; provided further, that the 60-day limitation set forth in indemnification under this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) Agreement if within 30 days after receipt by such Company of Indemnitee's Indemnitee has submitted a request for indemnification under in accordance with Section 5.1 hereof Indemnitee and such Company have agreed10(a) (Procedures upon Application for Indemnification) of this Agreement, and its Board has resolvedthe Company shall, to submit the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by such person, persons or entity of any determination contrary to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthat presumption. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he or she reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful. For purposes of any determination of good faith, Indemnitee shall be deemed to have been found liable acted in respect good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements (except that this shall not apply to the extent that the Indemnitee participated in the creating of such financial statements or otherwise certified their completeness and/or veracity), (ii) information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise or its board of directors or counsel selected by any committee of the board of directors or (iv) information or records given or reports made to the Enterprise by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Enterprise or its board of directors or any committee of the board of directors. The provisions of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. Neither the knowledge, actions nor failure to act of any Claimother director, issue officer, agent or matter only after he employee of the Enterprise shall have been so adjudged by be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

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, to the fullest extent not prohibited by applicable law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof9(a) of this Agreement, and the Corporation shall, to the fullest extent not prohibited by applicable Company shall law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Corporation (including by its directors or independent legal 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 Corporation (including by its directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) Subject to Section 12(e) hereof, if the person, persons or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 10 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such Company the Corporation of Indemnitee's the request for indemnificationtherefore, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by applicable law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person making (i) the determination with respect is to entitlement be made by Independent Counsel and Indemnitee objects to indemnification in good faith the Corporation’s selection of Independent Counsel and (ii) the Independent Counsel ultimately selected requires such additional time for the obtaining or evaluating of documentation and/or or information relating to such determinationthereto; provided further, however, that the such 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall may also be extended as necessary for a reasonable time, not to exceed an additional sixty (i60) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreeddays, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(cstockholders of the Corporation. (c) hereof. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself (except as otherwise expressly provided in this Agreement) adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE(d)

Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant Agreement. Anyone seeking to Section 5.1 hereof, and the applicable Company overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence in overcoming that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such 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 used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 11 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b12(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 11(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c11(a) hereofof this Agreement. (c) The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed Anyone seeking to have been found liable in respect of any Claim, issue or matter only after he overcome this presumption shall have been so adjudged the burden of proof and the burden of persuasion by the Court after exhaustion of all appeals therefromclear and convincing evidence. CERTAIN REMEDIES OF INDEMNITEE(d)

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, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof10(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by such person, persons or entity of any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 10 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(bthereto. (c) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he or she reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful. (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have been found liable acted in respect good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise or its board of directors or counsel selected by any committee of the board of directors or (iv) information or records given or reports made to the Enterprise by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Enterprise or its board of directors or any committee of the board of directors. The provisions of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. (e) Neither the knowledge, actions nor failure to act of any Claimother director, issue officer, agent or matter only after he employee of the Enterprise shall have been so adjudged by be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefromright to indemnification under this Agreement. CERTAIN REMEDIES OF INDEMNITEE12.

Presumptions and Effect of Certain Proceedings. If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee shall have submitted a request for indemnification pursuant to Section 5.1 hereofin accordance with section 9(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under this Article V section 9 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, provided that such 60sixty-day period may be extended for a reasonable time, not to exceed an additional 30 thirty days, if the person 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 to such determinationthereto; and provided further, further that the 60-day limitation set forth in foregoing provisions of this Section 5.4(bsection 10(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to section 9(b)and if (A) within 30 fifteen days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company determination the Board shall have agreed, and its Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofCounsel pursuant to section 9(b). The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon on a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he reasonably which Indemnitee believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof10(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming with respect to any defense that it raises to Indemnitee's entitlement to indemnification and to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by its directors or independent legal 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 legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 13(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 11 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires request in writing, stating the reason therefore, such additional time for the obtaining or evaluating of documentation and/or information relating to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b12(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 11(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board of Directors has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c11(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. For purposes of any determination of good faith, Indemnitee shall be deemed to have been found liable acted in respect 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 on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Enterprise. The provisions of this Section 12(d) 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. The knowledge and/or actions, or failure to act, of any Claimdirector, issue officer, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(b) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by the Disinterested 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 the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person or persons determining entitlement to indemnification) as create a basis for a determination presumption that Indemnitee has not met the applicable standard of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidenceconduct. If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Xxxxxxxxxx’s conduct was unlawful. Indemnitee For purposes of any determination of good faith, Xxxxxxxxxx shall be deemed to have been 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 directors, manager, or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found liable to have met the applicable standard of conduct set forth in respect this Agreement. The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, trustee, partner, manager, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. (a) Upon making a request for advancement of Expenses, Indemnitee shall be presumed to be entitled to such advancement under this Agreement and the Company shall have the burden of proof to overcome that presumption in reaching any contrary determination as set forth in clause (3) of Subsection 3(b). If the person or persons so empowered to make the determination pursuant to clause (3) of Subsection 3(b) shall have failed to make the requested determination within forty-five (45) days after receipt of Indemnitee's written request for advancement of Expenses, the requisite determination that Indemnitee is entitled to advancement of Expenses shall be deemed to have been made. (b) Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a any contrary determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) 6 hereof. The termination of any Proceeding or of any Claim, issue or matter proceeding by judgment, order, settlement (whether with or without court approval) or convictionsettlement, arbitration award or upon a plea of nolo contendere or its equivalent shall not affect this presumption or establish a presumption with regard to any factual matter relevant to determining Indemnitee's rights to indemnification hereunder. If the person or persons so empowered to make a determination pursuant to Section 6 hereof shall have failed to make the requested determination within forty-five (45) days after any final judgment, order, settlement dismissal, arbitration award, acceptance of a plea of nolo contendere or its equivalent, shall not by itself adversely affect or other disposition or partial disposition of any proceeding or any other event which could enable the rights of Company to determine Indemnitee's entitlement to indemnification, the requisite determination that Indemnitee is entitled to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrommade. CERTAIN REMEDIES OF INDEMNITEE6.

Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification or the advancement of Expenses hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification or advancement of Expenses under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to or the advancement of Expenses in accordance with Section 5.1 hereof8(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including the Board or independent legal 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 the Board or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 8 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b9(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 8(b) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board of Directors has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (C) a written consent of stockholders is solicited within fifteen (15) days after such receipt for the purpose of making such determination, and such consent is obtained within sixty (60) days after such solicitation, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c8(b) hereofof this Agreement. (c) The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable 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 been found liable acted in respect "good faith" if Indemnitee's action is based on the records or books of account of the Company or relevant enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company or relevant enterprise in the course of their duties, or on the advice of legal counsel for the Company D-5 6 or relevant enterprise or on information or records given or reports made to the Company or relevant enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or relevant enterprise. The provisions of this Section 9(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, agent or matter only after he employee of the Company or relevant enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefromright to indemnification under this Agreement. CERTAIN REMEDIES OF INDEMNITEE10.

Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification under this Agreement, the person, persons, or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome 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 under 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, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the determination of the Indemnitee’s entitlement to indemnification has not been made pursuant to Section 12 of this Agreement within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 5.1 hereof, 11(a) of this Agreement and (ii) the applicable Company shall have final disposition of the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel Proceeding for which Indemnitee requested Indemnification (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification“Determination Period”), the requisite determination of entitlement to indemnification shall will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, indemnification absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period . The Determination Period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in this Section 5.4(b) shall Determination Period will not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a)(iv) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c. (c) hereof. The termination of any Proceeding or of any Claimclaim, issue issue, or matter therein by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall will not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Xxxxxxxxxx’s conduct was unlawful. . (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have been found liable acted in respect good faith if Indemnitee acted based on (i) the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, (ii) information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, (iii) the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or (iv) information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Xxxxxxxxxx will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) are not exclusive and do not 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. (e) The knowledge and/or actions, or failure to act, of any Claimother person affiliated with the Company or an Enterprise (including, issue but not limited to, a director, officer, trustee, partner, managing member, Agent or matter only after he shall have been so adjudged by the Court after exhaustion employee) may not be imputed to Indemnitee for purposes of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEdetermining Indemnitee’s right to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such 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 used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 14(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b13(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within 30 15 days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 75 days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c12(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. For purposes of any determination of good faith, Indemnitee shall be deemed to have been found liable acted in respect 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 directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Enterprise. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. Whether or not the foregoing provisions of this Section 13(d) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. The knowledge and/or actions, or failure to act, of any Claimdirector, issue officer, trustee, partner, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of Indemnitee’s written request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 9 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination and the burden of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption persuasion by clear and convincing evidenceevidence in making any determination contrary to such presumption. 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 Company, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or reports made to the Company by its independent public accountant, appraiser or other expert selected with reasonable care by the Company. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 30 calendar days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification. However, neither the failure of the Company (including by its directors or independent legal 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 (iiincluding by its directors or Independent Legal Counsel) a prohibition that Indemnitee has not met such applicable standard of such indemnification under applicable law; providedconduct, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination a defense to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, action or create a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case presumption that Indemnitee has not met the applicable period shall be as set forth in Section 6.1(c) hereofstandard of conduct. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (a) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (b) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of Indemnitee’s written request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption Indemnitee shall be used deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, or on information supplied to Indemnitee by Independent Counsel (the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or reports made to the Company by its independent public accountant, appraiser or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption expert selected with reasonable care by clear and convincing evidencethe Company. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 30 calendar days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (a) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (b) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. The General Counsel of the Company (or if there is no General Counsel, the Chief Executive Officer of the Company) shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 9 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 forty-five (45) calendar days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, indemnification (a) absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, indemnification or (iib) a prohibition of such indemnification under applicable law; provided, however, that such 6045-day period may be extended for a reasonable period of time, not to exceed an additional 30 thirty (30) calendar days, if the person or 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (x) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (y) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. 13.1 In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11.2 of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by the Disinterested 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 the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person or persons determining entitlement to indemnification) as create a basis for a determination presumption that Indemnitee has not met the applicable standard of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. conduct. 13.2 If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall be be, to the fullest extent permitted by law, deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. thereto. 13.3 The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Ixxxxxxxxx’s conduct was unlawful. Indemnitee . 13.4 For purposes of any determination of good faith, Ixxxxxxxxx shall be deemed to have been 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 directors, managers, managing members or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13.4 shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found liable to have met the applicable standard of conduct set forth in respect this Agreement. 13.5 The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, trustee, partner, manager, managing member, fiduciary, advisor, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnificationa) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under Article IV of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such the Company of Indemnitee's the request for indemnificationby Indemnitee 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided and provided, further, that the 60-day limitation set forth in this Section 5.4(b4.3(a) shall not apply and such period shall be extended as necessary (i1) if within 30 days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof 4.1 Indemnitee and such the Company have agreed, and its the Board has resolved, resolved to submit such determination to the stockholders of such the Company pursuant to Section 5.2(b4.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders is called within 30 days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent CounselCounsel pursuant to Section 4.2(a) of this Agreement, in which case the applicable period shall be as set forth in Section 6.1(c) hereof5.1(c). The termination Nothing contained in this Agreement shall require that any determination be made under this Section 4.3 prior to the disposition or conclusion of any a Claim or Proceeding or of any Claimagainst Indemnitee; provided, issue or matter by judgmenthowever, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, that Expense Advances shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed continue to be in or not opposed made by the Company pursuant to, and to the best interests extent required by, the provisions of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEArticle III.

Presumptions and Effect of Certain Proceedings. The General Counsel of the Company (or if there is no General Counsel, the President of the Company) shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 9 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 forty-five (45) calendar days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent indemnification (i) a knowing misstatement by Indemnitee of a absent actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, indemnification or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6045-day period may be extended for a reasonable period of time, not to exceed an additional 30 thirty (30) calendar days, if the person or 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (a) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (b) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. (a) Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming determining that presumption in reaching a determination contrary to that presumptionIndemnitee is not so entitled. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for If a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall hereunder is not have made a determination in accordance with Section 9 hereof within 60 30 days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a knowing misstatement misrepresentation by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, indemnification or (ii) a prohibition final judicial determination that all or any part of such indemnification under applicable is expressly prohibited by Delaware law; provided, however, that such 60-day period may be extended at the initiation of an action for a reasonable time, not determination as to exceed an additional 30 days, if the person making the determination with respect to entitlement Indemnitee’s right to indemnification in good faith requires such additional time for under Delaware law, the obtaining or evaluating of documentation and/or information relating to such determination; provided further, that Indemnitee shall at the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders outset of such judicial determination, undertake to reimburse the Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after upon such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereoffinal determination. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself not, of itself, adversely affect the rights of Indemnitee to indemnification hereunder except as may be specifically provided herein, or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, or create a presumption that with respect to any criminal Proceeding, action or proceeding that Indemnitee had reasonable cause to believe that his the Indemnitee’s conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEINDEMNITEE Indemnitee Entitled to Adjudication in an Appropriate Court. If (a) a determination is made pursuant to Article V hereof that Indemnitee is not entitled to indemnification under this Agreement, (b) there has been any failure by the applicable Company to make timely payment or advancement of any amounts due hereunder, or (c) the determination of entitlement to indemnification is to be made by Independent Counsel and such determination shall not have been made and delivered in a written opinion within 90 days after the latest of (i) such Independent Counsel's being appointed, (ii) the overruling by the Court of objections to such counsel's selection or (iii) expiration of all periods for the applicable Company or Indemnitee to object to such counsel's selection, Indemnitee shall be entitled to commence an action seeking an adjudication in the Court of his entitlement to such indemnification or advancement 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 rules of the American Arbitration Association. Indemnitee shall commence such action seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such action pursuant to this Section 6.1, or such right shall expire. Neither Company shall oppose Indemnitee's right to seek any such adjudication or award in arbitration. Adverse Determination Not to Affect any Judicial Proceeding. If a determination shall have been made pursuant to Article V that Indemnitee is not entitled to indemnification under this Agreement, any judicial proceeding or arbitration commenced pursuant to this Article VI shall be conducted in all respects as a de novo trial or arbitration on the merits, and Indemnitee shall not be prejudiced by reason of such initial adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Article VI, Indemnitee shall be presumed to be entitled to indemnification or advancement of Expenses, as the case may be, under this Agreement and the applicable Company shall have the burden of proof in overcoming such presumption and to show by clear and convincing evidence that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be. Applicable Company Bound by Determination Favorable to Indemnitee in any Judicial Proceeding or Arbitration. If a determination shall have been made or deemed to have been made pursuant to Article V that Indemnitee is entitled to indemnification, the applicable Company shall be irrevocably bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Article VI and shall be precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable, in each such case absent (a) a knowing misstatement by Indemnitee of a material fact, or a knowing omission of a material fact necessary to make a statement by Indemnitee not materially misleading, in connection with Indemnitee's request for indemnification or (b) a prohibition of such indemnification under applicable law. Applicable Company Bound by the Agreement. The applicable Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Article VI that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that such Company is bound by all the provisions of this Agreement. Indemnitee Entitled to Expenses of Judicial Proceeding. If Indemnitee seeks a judicial adjudication of or an award in arbitration to enforce his rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the applicable Company, and such Company shall indemnify Indemnitee against, any and all expenses (of the types described in the definition of Expenses in Article I hereof) actually and reasonably incurred by him in such judicial adjudication or arbitration but only if Indemnitee prevails therein. If it shall be determined in such judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses or other benefit sought, the expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be equitably allocated between the applicable Company and Indemnitee. Notwithstanding the foregoing, if a Change in Control of the Company from which recovery is sought under this Section 6.5 shall have occurred, Indemnitee shall be entitled to indemnification under this Section 6.5 from such Company regardless of whether Indemnitee ultimately prevails in such judicial adjudication or arbitration.

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 shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereofl l(b) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by the Disinterested 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 the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEthe

Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof7(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b8(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(b) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c7(b) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEthis Agreement.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by its directors or independent legal 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 legal counsel) that Indemnitee has not met such applicable standard of conduct,] shall be used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 14(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b13(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c12(a) hereofof this Agreement. SGY Form 2017 The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. Indemnitee In making a determination with respect to entitlement to indemnification hereunder, the persons or entity making such determination shall be presumed presume (unless there is clear and convincing evidence to be the contrary) that a Director is entitled to indemnification under this Agreement upon submission of if such Director has submitted a request for indemnification pursuant to Section 5.1 hereof, and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidenceaccordance with this Agreement. If the person or persons person(s) so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to indemnification shall not have made a make the requested determination within 60 days after receipt by the Corporation of such Company of Indemnitee's request for indemnificationrequest, the requisite determination of the Director’s entitlement to indemnification shall be deemed to have been made and Indemnitee such Director shall be absolutely entitled to such indemnification, indemnification absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary fraud. A Director shall be deemed to make Indemnitee's statement not materially misleading, in connection with Indemnitee's request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making the determination with respect to entitlement to indemnification have acted in good faith requires if such additional time Director’s action is based on the records or books of account of the Corporation, including financial statements, or on information supplied to such Director by the officers of the Corporation in the course of their duties, or on the advice of legal counsel for the obtaining Corporation or evaluating the Special Committee or on information or records given or reports made to the Corporation or the Special Committee by an independent certified public accountant, by a financial advisor or by an appraiser or other expert selected with reasonable care by the Corporation or the Special Committee. In addition, the knowledge and/or actions, or failure to act, of documentation and/or information relating to such determination; provided furtherany other director, that officer, trustee, partner, managing member, fiduciary, agent or employee of the 60-day limitation set forth in this Section 5.4(b) Corporation shall not apply be imputed to a Director for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this ýSection 7 are satisfied, it shall in any event be presumed (unless there is clear and convincing evidence to the contrary) that each Director has at all times acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation. Neither the failure of the Corporation (including by its directors or Independent Legal 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 a Director has met the applicable standard of conduct, nor an actual determination by the Corporation (including by its directors or Independent Legal Counsel) that such period Director has not met such applicable standard of conduct, shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination a defense to the stockholders of action or create a presumption that such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case Director has not met the applicable period shall be as set forth in Section 6.1(c) hereofstandard of conduct. The termination of any a Proceeding or of any Claim, issue or matter described in ýSection 3 hereof by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, (a) establish that the Director does not by itself meet the criteria for entitlement to indemnification set forth in ýSection 3 hereof or (b) otherwise adversely affect the rights of Indemnitee such Director to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to except as may be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board or such other Person(s) empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a the making of any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons Person(s) so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnificationindemnification in accordance with Section 3 or 4 hereof, absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day thirty (30)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person Person(s) making the such determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining to obtain or evaluating of evaluate documentation and/or information relating to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding or of any Claim, issue or matter described in Section 3 hereof by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by not, of itself adversely affect the rights of Indemnitee to indemnification or (a) create a presumption that Indemnitee did not act in good faith or and in a manner that which he or she reasonably believed to be in or not opposed to the best interests of the applicable Company orCompany, and, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawfulunlawful or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein. In addition, neither the failure of the Company’s Board of Directors or one of its committees, Independent Counsel, the Company’s stockholders or any other Person to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any of them that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of Proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified, shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. For purposes of this Agreement and all other purposes, Indemnitee shall be deemed presumed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company if Indemnitee’s actions or omissions are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company reasonably believed to be reliable and competent in the matters prepared or presented, or by committees of the Board on which the director or officer relying thereon does not serve, was established in accordance with Nevada law, as to matters within such committee’s designated authority and matters on which such committee is reasonably believed to merit confidence, or by any other Person (including legal counsel, accountants and financial advisors) as to matters which Indemnitee reasonably believes are within such other Person’s competence and who has been found liable selected with reasonable care by or on behalf of the Company; provided, however, that the Indemnitee is not entitled to rely on such information, opinions, reports, books of account of statements if the director or officer has knowledge concerning the matter in respect question that would cause reliance thereon to be unwarranted. In addition, the knowledge, actions and omissions of any Claimdirector, issue officer, agent, manager, representative, counsel, accountant, advisor, consultant, partner, trustee, manager, fiduciary or matter only after employee of the Company or its subsidiaries or other affiliates shall not be imputed to Indemnitee for purposes of determining the right to indemnification or advancement of expenses, hereunder or otherwise. It shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have been so adjudged the burden of proof and the burden of persuasion by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEclear and convincing evidence.

Presumptions and Effect of Certain Proceedings. If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof7(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 8 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification indemnification, under applicable law; provided, however, that such 60-day sixty (60)-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determination; thereto) and provided further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b) 8) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board of Directors has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereatthere at, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held within 60 sixty (60) days after such agreement having been so-called and such determination is made thereatthere at, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c7) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceedingproceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

Presumptions and Effect of Certain Proceedings. The Secretary of Fxxxxx Mae shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. The Secretary of Fxxxxx Mxx shall also promptly notify the Conservator that such a request has been made. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company Fxxxxx Mae shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 30 calendar days after receipt by Fxxxxx Mxx of such Company of Indemnitee's request for indemnificationrequest, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (a) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Fxxxxx Mae, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (b) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(b) of this Agreement, and the applicable Company Corporation shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Corporation (including by the Disinterested 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 Corporation (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person or persons determining entitlement to indemnification) as create a basis for a determination presumption that Indemnitee has not met the applicable standard of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidenceconduct. If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such Company the Corporation of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he or she reasonably believed to be in or not opposed to the best interests of the applicable Company Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful. For purposes of any determination of good faith, Indemnitee shall be deemed to have been 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 directors, manager or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found liable to have met the applicable standard of conduct set forth in respect this Agreement. The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, trustee, partner, manager, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by its directors or independent legal 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 legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 14(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b13(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c12(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEE.

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 shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(b) of this Agreement, and the applicable Company shall have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such presumption Neither the failure of the Company (including by the Disinterested 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 the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be used by Independent Counsel a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person person, persons or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 fifteen (15) days, if the person 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(bthereto. (c) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Ixxxxxxxxx’s conduct was unlawful. Indemnitee . (d) For purposes of any determination of good faith, Ixxxxxxxxx shall be deemed to have been 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 directors, trustees, general partners, managers or managing members of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member of the Enterprise, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member of the Enterprise, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found liable to have met the applicable standard of conduct set forth in respect this Agreement. (e) The knowledge and/or actions, or failure to act, of any Claimother director, issue officer, trustee, partner, manager, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.

Presumptions and Effect of Certain Proceedings. (a) It is the intent of this Agreement to secure for Indemnitee shall rights of indemnity that are as favorable as may be presumed permitted under the DGCL and public policy of the State of Delaware. In making a determination with respect to be entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement upon submission if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome 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, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the determination of the Indemnitee’s entitlement to indemnification has not made pursuant to Section 12 within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 5.1 hereof, 11(a) and (ii) the applicable Company shall have final disposition of the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. Such presumption shall be used by Independent Counsel Proceeding for which Indemnitee requested indemnification (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons empowered or selected under this Article V to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by such Company of Indemnitee's request for indemnification“Determination Period”), the requisite determination of entitlement to indemnification shall will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period . The Determination Period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall Determination Period may be extended as necessary an additional fifteen (i15) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in stockholders pursuant to Section 6.1(c12(a)(iv) hereofof this Agreement. (c) The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall will not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEbest

Presumptions and Effect of Certain Proceedings. The General Counsel of the Company (or if there is no General Counsel, the President of the Company) shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 9 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement upon submission of a request for indemnification pursuant to Section 5.1 hereof, hereunder and the applicable Company shall have the burden of proof in overcoming that presumption in reaching a making any determination contrary to that such presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons so empowered or selected under this Article V to determine whether Indemnitee is entitled make such determination shall have failed to make the requested determination with respect to indemnification shall not have made a determination within 60 forty-five (45) calendar days after receipt by such the Company of Indemnitee's request for indemnificationsuch request, the a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, indemnification (a) absent (i) a knowing misstatement by Indemnitee of a actual and material fact, or knowing omission of a material fact necessary to make Indemnitee's statement not materially misleading, fraud in connection with Indemnitee's the request for indemnification, indemnification or (iib) a prohibition of such indemnification under applicable law; provided, however, that such 6045-day period may be extended for a reasonable period of time, not to exceed an additional 30 thirty (30) calendar days, if the person or 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 to such determination; provided further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereofthereto. The termination of any Proceeding described in Sections 3 or of any Claim, issue or matter 4 by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights not, of Indemnitee to indemnification or itself: (x) create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company Company, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee’s conduct was unlawful. ; or (y) otherwise adversely affect the rights of Indemnitee shall to indemnification except as may be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEprovided herein.

Presumptions and Effect of Certain Proceedings. (a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of Agreement, if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof8(a) of this Agreement, and the applicable Company shall have the burden of proof in overcoming the overcome that presumption in reaching a connection with the making by any person or entity or any determination contrary to that presumption. Such presumption shall be used by Independent Counsel (or other person or persons determining entitlement to indemnificationb) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 8 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 sixty (60) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, 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 knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's ’s statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60-) day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating evaluation of documentation and/or information relating to such determinationthereto; and provided further, that the 60-day limitation set forth in foregoing provisions or this Section 5.4(b9(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by such Company of Indemnitee's request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its Board has resolved, to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders to be held within 90 days after such agreement and such determination is made thereat, or a special meeting of stockholders for the purpose of making such determination to be held within 60 days after such agreement and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Section 6.1(c) hereof. The termination of any Proceeding or of any Claim, issue or matter by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not by itself adversely affect the rights of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith or in a manner that he reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Indemnitee shall be deemed to have been found liable in respect of any Claim, issue or matter only after he shall have been so adjudged by the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEthe

Presumptions and Effect of Certain Proceedings. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee shall be presumed to be is entitled to indemnification under this Agreement upon submission of if Indemnitee has submitted a request for indemnification pursuant to in accordance with Section 5.1 hereof11(a) of this Agreement, and the applicable Company shall shall, to the fullest extent not prohibited by law, have the burden of proof in overcoming to overcome that presumption in reaching a connection with the making by any person, persons or entity of any determination contrary to that presumption. Such 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 used by Independent Counsel (a defense to the action or other person create a presumption that Indemnitee has not met the applicable standard of conduct. Subject to Section 14(e), if the person, persons or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless such Company provides information sufficient to overcome such presumption by clear and convincing evidence. If the person or persons entity empowered or selected under Section 12 of this Article V Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 thirty (30) days after receipt by such the Company of Indemnitee's the request for indemnificationtherefor, the requisite determination of entitlement to indemnification shall shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with Indemnitee's the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 6030-day period may be extended for a reasonable time, not to exceed an additional 30 thirty (30) days, if the person 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 to such determinationthereto; provided and provided, further, that the 60-day limitation set forth in foregoing provisions of this Section 5.4(b13(b) shall not apply and such period shall be extended as necessary (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within 30 fifteen (15) days after receipt by such the Company of Indemnitee's the request for indemnification under Section 5.1 hereof Indemnitee and such Company have agreed, and its determination the Board has resolved, resolved to submit such determination to the stockholders of such Company pursuant to Section 5.2(b) hereof for their consideration at an annual meeting of stockholders thereof to be held within 90 seventy-five (75) days after such agreement receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination to be determination, such meeting is held for such purpose within 60 sixty (60) days after such agreement having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel, in which case the applicable period shall be as set forth in Counsel pursuant to Section 6.1(c12(a) hereofof this Agreement. The termination of any Proceeding or of any Claimclaim, issue or matter therein, by judgment, order, settlement (whether with or without court approval) settlement, arbitration award or conviction, or upon a plea of nolo contendere or its equivalent, shall not by (except as otherwise expressly provided in this Agreement) of itself adversely affect the rights right of Indemnitee to indemnification indemnification, except as expressly prohibited under this Agreement, or create a presumption that Indemnitee did not act in good faith or and in a manner that he which Indemnitee reasonably believed to be in or not opposed to the best interests of the applicable Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his Indemnitee's conduct was unlawful. Indemnitee For purposes of any determination of good faith, Xxxxxxxxxx shall be deemed to have been found liable acted in respect 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 directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Enterprise. The provisions of this Section 13(d) 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. The knowledge and/or actions, or failure to act, of any Claimdirector, issue officer, trustee, partner, managing member, fiduciary, agent or matter only after he employee of the Enterprise shall have been so adjudged by not be imputed to Indemnitee for purposes of determining the Court after exhaustion of all appeals therefrom. CERTAIN REMEDIES OF INDEMNITEEright to indemnification under this Agreement.