DETERMINES PURSUANT TO
SECTION 4(A) THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION UNDER THIS
AGREEMENT OR (IV) INDEMNITEE HAS NOT RECEIVED ADVANCEMENT OF EXPENSES WITHIN THE
TIME PERIOD
5
PERMITTED FOR SUCH ADVANCEMENT BY SECTION 2(C), THEN INDEMNITEE SHALL HAVE THE
RIGHT TO ENFORCE THE INDEMNIFICATION RIGHTS GRANTED UNDER THIS AGREEMENT BY
COMMENCING LITIGATION IN THE CHANCERY COURT OF THE STATE OF DELAWARE SEEKING A
DETERMINATION BY THE COURT OR CHALLENGING ANY DETERMINATION BY THE REVIEWING
PARTY OR ANY ASPECT THEREOF.
THE COMPANY HEREBY CONSENTS TO SERVICE OF PROCESS
AND TO APPEAR IN ANY SUCH PROCEEDING AND WAIVES ANY DEFENSE TO VENUE OR
JURISDICTION.
ALTERNATIVELY, INDEMNITEE, AT INDEMNITEE'S OPTION, MAY SEEK AN
ADJUDICATION IN ARBITRATION WITH RESPECT TO THE ENFORCEMENT OF INDEMNITEE'S
RIGHTS UNDER THIS SECTION 4(B) CONDUCTED PURSUANT TO THE COMMERCIAL ARBITRATION
RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
THE PROVISIONS OF DELAWARE LAW
(WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES) WILL APPLY TO SUCH ARBITRATION.
THE COMPANY WILL NOT OPPOSE INDEMNITEE'S RIGHT TO SEEK ANY SUCH ADJUDICATION IN
ARBITRATION.
ANY DETERMINATION BY THE REVIEWING PARTY NOT CHALLENGED BY THE
INDEMNITEE WITHIN 90 DAYS OF THE DATE OF THE REVIEWING PARTY'S DETERMINATION
SHALL BE CONCLUSIVELY BINDING ON THE COMPANY AND INDEMNITEE AND SHALL NOT
THEREAFTER BE SUBJECT TO CHALLENGE.
THE PARTIES AGREE THAT THE PROCEDURES SET
FORTH IN THIS SECTION 4 SHALL CONSTITUTE THE SOLE AND EXCLUSIVE METHOD FOR
RESOLVING ANY DISPUTE REGARDING, OR DETERMINATIONS MADE PURSUANT TO, THIS
AGREEMENT, AND THAT ANY LITIGATION TO ENFORCE ANY RIGHTS ARISING UNDER THIS
AGREEMENT SHALL BE FILED SOLELY IN THE CHANCERY COURT OF THE STATE OF DELAWARE.
THE REMEDY PROVIDED FOR IN THIS SECTION 4 SHALL BE IN ADDITION TO ANY OTHER
REMEDIES AVAILABLE TO INDEMNITEE AT LAW OR IN EQUITY.
(C)
DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF, AND PRESUMPTIONS.
(I)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN MAKING A
DETERMINATION WITH RESPECT TO ENTITLEMENT TO INDEMNIFICATION (OR PAYMENT OF
EXPENSE ADVANCES) HEREUNDER, THE REVIEWING PARTY SHALL PRESUME THAT AN
INDEMNITEE IS ENTITLED TO INDEMNIFICATION (OR PAYMENT OF EXPENSE ADVANCES) UNDER
THIS AGREEMENT, AND THE COMPANY SHALL HAVE THE BURDEN OF PROOF TO OVERCOME THAT
PRESUMPTION IN CONNECTION WITH THE MAKING BY THE REVIEWING PARTY OF ANY
DETERMINATION CONTRARY TO THAT PRESUMPTION.
(II)
IT SHALL BE A DEFENSE TO ANY ACTION BROUGHT BY INDEMNITEE AGAINST
THE COMPANY TO ENFORCE THIS AGREEMENT THAT IT IS NOT PERMISSIBLE UNDER
APPLICABLE LAW FOR THE COMPANY TO INDEMNIFY INDEMNITEE FOR THE AMOUNT CLAIMED.
(III)
FOR PURPOSES OF THIS AGREEMENT, THE TERMINATION OF ANY CLAIM,
ACTION, SUIT, OR PROCEEDING, BY JUDGMENT, ORDER, SETTLEMENT (WHETHER WITH OR
WITHOUT COURT APPROVAL), CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE, OR ITS
EQUIVALENT, SHALL NOT CREATE A PRESUMPTION THAT INDEMNITEE DID NOT MEET ANY
PARTICULAR STANDARD OF CONDUCT OR HAVE ANY PARTICULAR BELIEF OR THAT A COURT HAS
DETERMINED THAT INDEMNIFICATION IS NOT PERMITTED BY APPLICABLE LAW.
5.
INDEMNIFICATION FOR EXPENSES INCURRED IN ENFORCING RIGHTS.
THE
COMPANY SHALL INDEMNIFY INDEMNITEE AGAINST ANY AND ALL EXPENSES TO