Unindemnifiable Conduct

Unindemnifiable Conduct. Shall mean a final determination by a court of competent jurisdiction or other judicial or administrative body before which a Proceeding was brought that, with respect to such Proceeding, McMillen: (i) engaged in intentional misconduct, knowing violations of applicable law, or gross negligence; (ii) personally received a benefit in money, property, or services to which he was not legally entitled, or improperly took advantage of a corporate opportunity; ... (iii) failed to act in good faith and in a manner McMillen reasonably believed to be in or not opposed to the best interests of the Company; (iv) with respect to any criminal action or proceeding, McMillen had reasonable cause to believe that McMillen's conduct was unlawful; or (v) is liable to the Company for an accounting of profits made from the purchase or sale by McMillen of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder and amendments thereto or similar provisions of any federal, state or local statutory law. Notwithstanding the foregoing, the termination of any Proceeding by judgment, order of court, settlement, conviction, or upon plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that McMillen was engaged in Unindemnifiable Conduct. View More