ADVANCED MUST BE AN UNLIMITED GENERAL OBLIGATION BUT
NEED NOT BE SECURED, AND SHALL BE ACCEPTED WITHOUT REFERENCE TO FINANCIAL
ABILITY TO MAKE REPAYMENT.
11.
REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES.
IN THE EVENT THAT A DETERMINATION IS MADE
THAT THE INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION HEREUNDER OR IF THE
PAYMENT HAS NOT BEEN TIMELY MADE FOLLOWING A DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION PURSUANT TO SECTIONS 8 AND 9, OR IF EXPENSES ARE NOT ADVANCED
PURSUANT TO SECTION 10, THE INDEMNITEE SHALL BE ENTITLED TO A FINAL ADJUDICATION
IN AN APPROPRIATE COURT OF THE STATE OF DELAWARE OR ANY OTHER COURT OF COMPETENT
JURISDICTION OF THE INDEMNITEE'S ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCE.
ALTERNATIVELY, THE INDEMNITEE MAY, AT THE INDEMNITEE'S OPTION, SEEK AN AWARD IN
ARBITRATION TO BE CONDUCTED BY A SINGLE ARBITRATOR PURSUANT TO THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, SUCH AWARD TO BE MADE WITHIN 60 DAYS FOLLOWING
THE FILING OF THE DEMAND FOR ARBITRATION. THE COMPANY SHALL NOT OPPOSE THE
INDEMNITEE'S RIGHT TO SEEK ANY SUCH ADJUDICATION OR AWARD IN ARBITRATION OR ANY
OTHER CLAIM. SUCH JUDICIAL PROCEEDING OR ARBITRATION SHALL BE MADE DE NOVO, AND
THE INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF A DETERMINATION (IF SO MADE)
THAT THE INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION. IF A DETERMINATION IS
MADE OR DEEMED TO HAVE BEEN MADE PURSUANT TO THE TERMS OF SECTION 8 OR SECTION 9
HEREOF THAT THE INDEMNITEE IS ENTITLED TO INDEMNIFICATION, THE COMPANY SHALL BE
BOUND BY SUCH DETERMINATION 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. THE COMPANY
FURTHER AGREES TO STIPULATE IN ANY SUCH COURT OR BEFORE ANY SUCH ARBITRATOR THAT
THE COMPANY IS BOUND BY ALL THE PROVISIONS OF THIS AGREEMENT AND IS PRECLUDED
FROM MAKING ANY ASSERTIONS TO THE CONTRARY. IF THE COURT OR ARBITRATOR SHALL
DETERMINE THAT THE INDEMNITEE IS ENTITLED TO ANY INDEMNIFICATION HEREUNDER, THE
COMPANY SHALL PAY ALL REASONABLE EXPENSES ACTUALLY INCURRED BY THE INDEMNITEE IN
CONNECTION WITH SUCH ADJUDICATION OR AWARD IN ARBITRATION (INCLUDING, BUT NOT
LIMITED TO, ANY APPELLATE PROCEEDINGS).
12.
NOTIFICATION AND DEFENSE OF CLAIM.
PROMPTLY AFTER RECEIPT BY THE
INDEMNITEE OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUIT OR PROCEEDING, THE
INDEMNITEE WILL, IF A CLAIM IN
6
RESPECT THEREOF IS TO BE MADE AGAINST THE COMPANY UNDER THIS AGREEMENT, NOTIFY
THE COMPANY IN WRITING OF THE COMMENCEMENT THEREOF; BUT THE OMISSION TO SO
NOTIFY THE COMPANY WILL NOT RELIEVE THE COMPANY FROM ANY LIABILITY THAT IT MAY
HAVE TO THE INDEMNITEE OTHERWISE THAN UNDER THIS AGREEMENT OR OTHERWISE, EXCEPT
TO THE EXTENT THAT THE COMPANY MAY SUFFER MATERIAL PREJUDICE BY REASON OF SUCH
FAILURE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, WITH RESPECT TO
ANY SUCH ACTION, SUIT OR PROCEEDING AS TO WHICH THE INDEMNITEE GIVES NOTICE TO
THE COMPANY OF THE COMMENCEMENT THEREOF:
(A)