ANY SUCH ADJUDICATION OR ARBITRATION AWARD. IN ANY
SUCH PROCEEDING OR ARBITRATION
6
INDEMNITEE SHALL BE PRESUMED TO BE ENTITLED TO INDEMNIFICATION UNDER THIS
AGREEMENT AND THE COMPANY SHALL HAVE THE BURDEN OF PROOF TO OVERCOME THAT
PRESUMPTION.
7.2
AN INITIAL DETERMINATION, IN WHOLE OR IN PART, THAT INDEMNITEE IS NOT
ENTITLED TO INDEMNIFICATION SHALL CREATE NO PRESUMPTION IN ANY JUDICIAL
PROCEEDING OR ARBITRATION THAT INDEMNITEE HAS NOT MET THE APPLICABLE STANDARD OF
CONDUCT FOR, OR IS OTHERWISE NOT ENTITLED TO, INDEMNIFICATION.
7.3
IF AN INITIAL DETERMINATION IS MADE OR DEEMED TO HAVE BEEN MADE
PURSUANT TO THE TERMS OF THIS AGREEMENT THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION, THE COMPANY SHALL BE BOUND BY SUCH DETERMINATION IN THE ABSENCE
OF (A) A MISREPRESENTATION OF A MATERIAL FACT BY INDEMNITEE IN THE REQUEST FOR
INDEMNIFICATION OR (B) A SPECIFIC FINDING (WHICH HAS BECOME FINAL) BY A COURT OF
COMPETENT JURISDICTION THAT ALL OR ANY PART OF SUCH INDEMNIFICATION IS EXPRESSLY
PROHIBITED BY LAW.
7.4
THE COMPANY AND INDEMNITEE AGREE HEREIN THAT A MONETARY REMEDY FOR
BREACH OF THIS AGREEMENT, AT SOME LATER DATE, WILL BE INADEQUATE, IMPRACTICABLE
AND DIFFICULT OF PROOF, AND FURTHER AGREE THAT SUCH BREACH WOULD CAUSE
INDEMNITEE IRREPARABLE HARM. ACCORDINGLY, THE COMPANY AND INDEMNITEE AGREE THAT
INDEMNITEE SHALL BE ENTITLED TO TEMPORARY AND PERMANENT INJUNCTIVE RELIEF TO
ENFORCE THIS AGREEMENT WITHOUT THE NECESSITY OF PROVING ACTUAL DAMAGES OR
IRREPARABLE HARM. THE COMPANY AND INDEMNITEE FURTHER AGREE THAT INDEMNITEE SHALL
BE ENTITLED TO SUCH INJUNCTIVE RELIEF, INCLUDING TEMPORARY RESTRAINING ORDERS,
PRELIMINARY INJUNCTIONS AND PERMANENT INJUNCTIONS, WITHOUT THE NECESSITY OF
POSTING BOND OR OTHER UNDERTAKING IN CONNECTION THEREWITH. ANY SUCH REQUIREMENT
OF BOND OR UNDERTAKING IS HEREBY WAIVED BY THE COMPANY, AND THE COMPANY
ACKNOWLEDGES THAT IN THE ABSENCE OF SUCH A WAIVER, A BOND OR UNDERTAKING MAY BE
REQUIRED BY THE COURT.
7.5
THE COMPANY SHALL BE PRECLUDED FROM ASSERTING THAT THE PROCEDURES AND
PRESUMPTIONS OF THIS AGREEMENT ARE NOT VALID, BINDING AND ENFORCEABLE. THE
COMPANY SHALL 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 ASSERTION TO THE CONTRARY.
7.6
EXPENSES INCURRED BY INDEMNITEE IN CONNECTION WITH HIS REQUEST FOR
INDEMNIFICATION UNDER, SEEKING ENFORCEMENT OF OR TO RECOVER DAMAGES FOR BREACH
OF THIS AGREEMENT SHALL BE BORNE AND ADVANCED BY THE COMPANY.
8.
OTHER RIGHTS TO INDEMNIFICATION.
INDEMNITEE'S RIGHTS OF INDEMNIFICATION
AND ADVANCEMENT OF EXPENSES PROVIDED BY THIS AGREEMENT SHALL NOT BE DEEMED
EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH INDEMNITEE MAY NOW OR IN THE FUTURE BE
ENTITLED UNDER
7
APPLICABLE LAW, THE CERTIFICATE, THE BYLAWS, AN EMPLOYMENT AGREEMENT, A VOTE OF
STOCKHOLDERS OR DISINTERESTED DIRECTORS, INSURANCE OR OTHER FINANCIAL
ARRANGEMENTS OR OTHERWISE.
9.
LIMITATIONS ON INDEMNIFICATION.
NO INDEMNIFICATION PURSUANT TO
SECTION 3 SHALL BE PAID BY THE COMPANY NOR SHALL EXPENSES BE ADVANCED PURSUANT
TO SECTION 3:
9.1
INSURANCE.
TO THE EXTENT THAT INDEMNITEE IS REIMBURSED PURSUANT TO
SUCH INSURANCE AS MAY EXIST FOR INDEMNITEE'S