AS A DE NOVO TRIAL, OR
ARBITRATION, ON THE MERITS AND INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF
THAT ADVERSE DETERMINATION.
IN ANY JUDICIAL PROCEEDING OR ARBITRATION COMMENCED
PURSUANT TO THIS SECTION 13, THE COMPANY SHALL HAVE THE BURDEN OF PROVING
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES, AS THE
CASE MAY BE.
(C)
IF A DETERMINATION SHALL HAVE BEEN MADE PURSUANT TO
SECTION 11(A) OF THIS AGREEMENT THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION,
THE COMPANY SHALL BE BOUND BY SUCH DETERMINATION IN ANY JUDICIAL PROCEEDING OR
ARBITRATION COMMENCED PURSUANT TO THIS SECTION 13, ABSENT (I) A MISSTATEMENT BY
INDEMNITEE OF MATERIAL FACT, OR AN OMISSION OF A MATERIAL FACT NECESSARY TO MAKE
INDEMNITEE'S STATEMENT NO MATERIALLY MISLEADING, IN CONNECTION WITH THE REQUEST
FOR INDEMNIFICATION, OR (II) A PROHIBITION OF SUCH INDEMNIFICATION UNDER
APPLICABLE LAW.
(D)
THE COMPANY AND THE INDEMNITEE SHALL BE PRECLUDED FROM
ASSERTING 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 THE COMPANY OR THE INDEMNITEE, AS THE CASE MAY BE, IS BOUND BY
ALL THE PROVISIONS OF THIS AGREEMENT.
THE COMPANY SHALL INDEMNIFY INDEMNITEE
AGAINST ANY AND ALL EXPENSES INCURRED SUCCESSFULLY ASSERTING INDEMNITEE'S RIGHTS
UNDER THIS SECTION 13.
(E)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO
DETERMINATION AS TO ENTITLEMENT TO INDEMNIFICATION UNDER THIS AGREEMENT SHALL BE
REQUIRED TO BE MADE PRIOR TO THE FINAL DISPOSITION OF A PROCEEDING, INCLUDING
ANY APPEAL THEREIN.
SECTION 14. NON-EXCLUSIVITY, SURVIVAL OF RIGHTS; INSURANCE SUBROGATION.
(A)
THE RIGHTS OF INDEMNIFICATION AND TO RECEIVE ADVANCEMENT OF
EXPENSES AS PROVIDED BY THIS AGREEMENT SHALL NOT BE DEEMED EXCLUSIVE OF ANY
OTHER RIGHTS TO WHICH INDEMNITEE MAY AT ANY TIME BE ENTITLED UNDER APPLICABLE
LAW, THE CHARTER, THE COMPANY'S BYLAWS, ANY AGREEMENT, A VOTE OF STOCKHOLDERS OR
A RESOLUTION OF DIRECTORS, OR OTHERWISE.
NO AMENDMENT, ALTERATION OR REPEAL OF
THIS AGREEMENT OR OF ANY PROVISION HEREOF SHALL LIMIT OR RESTRICT ANY RIGHT OF
INDEMNITEE UNDER THIS AGREEMENT IN RESPECT OF ANY ACTION TAKEN OR OMITTED BY
SUCH INDEMNITEE IN HIS CORPORATE STATUS PRIOR TO SUCH AMENDMENT, ALTERATION OR
REPEAL.
TO THE EXTENT THAT A CHANGE IN DELAWARE LAW, WHETHER BY STATUTE OR
JUDICIAL DECISION, PERMITS GREATER INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
THAN WOULD BE AFFORDED CURRENTLY UNDER THE CHARTER, BYLAWS AND THIS AGREEMENT,
IT IS THE INTENT OF THE PARTIES HERETO THAT INDEMNITEE SHALL ENJOY BY THIS
AGREEMENT THE GREATER BENEFITS SO AFFORDED BY SUCH CHANGE.
NO RIGHT OR REMEDY
HEREIN CONFERRED IS INTENDED TO BE EXCLUSIVE OF ANY OTHER RIGHT OR REMEDY, AND
EVERY OTHER RIGHT AND REMEDY SHALL BE CUMULATIVE AND IN ADDITION TO EVERY OTHER
RIGHT AND REMEDY GIVEN HEREUNDER OR NOW OR HEREAFTER EXISTING AT LAW OR IN
EQUITY OR OTHERWISE.
THE ASSERTION OR EMPLOYMENT OF ANY RIGHT OR REMEDY
HEREUNDER, OR OTHERWISE, SHALL NOT PREVENT THE CONCURRENT ASSERTION OR
EMPLOYMENT OF ANY OTHER RIGHT OR REMEDY.
(B)
TO THE EXTENT THAT THE