BE ENTITLED TO SEEK AN ADJUDICATION OF
ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCEMENT OF EXPENSES EITHER, AT THE
INDEMNITEE'S SOLE OPTION, (A) IN AN APPROPRIATE COURT OF THE STATE OF DELAWARE
OR ANY OTHER COURT OF COMPETENT JURISDICTION OR (B) IN AN ARBITRATION TO BE
CONDUCTED BY A SINGLE ARBITRATOR PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION, (II) ANY SUCH JUDICIAL PROCEEDING OR ARBITRATION SHALL
BE DE NOVO AND THE INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF SUCH ADVERSE
DETERMINATION, AND (III) IN ANY SUCH JUDICIAL PROCEEDING OR ARBITRATION, THE
CORPORATION SHALL HAVE THE BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE
THAT THE INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES UNDER THIS ARTICLE VI.
(B)
IF A DETERMINATION SHALL HAVE BEEN MADE OR
DEEMED TO HAVE BEEN MADE THAT THE INDEMNITEE IS ENTITLED TO INDEMNIFICATION, THE
CORPORATION SHALL BE OBLIGATED TO PAY THE AMOUNTS CONSTITUTING SUCH
INDEMNIFICATION WITHIN 15 DAYS AFTER SUCH DETERMINATION HAS BEEN MADE OR DEEMED
TO HAVE BEEN MADE AND SHALL BE CONCLUSIVELY BOUND BY SUCH DETERMINATION UNLESS
(I) THE INDEMNITEE INTENTIONALLY MISREPRESENTED OR FAILED TO DISCLOSE A MATERIAL
FACT IN THE WRITTEN REQUEST FOR INDEMNIFICATION OR (II) SUCH INDEMNIFICATION IS
PROHIBITED BY THE DGCL.
IN THE EVENT THAT (A) ADVANCEMENT OF EXPENSES IS NOT
TIMELY MADE PURSUANT TO SECTION 6.03 OF THESE BY-LAWS OR (B) PAYMENT OF
INDEMNIFICATION IS NOT MADE WITHIN 15 DAYS AFTER A DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION HAS BEEN MADE OR DEEMED TO HAVE BEEN MADE PURSUANT TO THIS
ARTICLE VI, THE INDEMNITEE SHALL BE ENTITLED TO SEEK JUDICIAL ENFORCEMENT OF THE
CORPORATION'S OBLIGATION TO PAY THE INDEMNITEE SUCH ADVANCEMENT OF EXPENSES AND
INDEMNIFICATION.
IT SHALL BE A DEFENSE TO ANY SUCH ACTION FOR JUDICIAL
ENFORCEMENT (OTHER THAN AN ACTION BROUGHT TO ENFORCE A CLAIM FOR EXPENSES
INCURRED IN DEFENDING ANY PROCEEDING IN ADVANCE OF ITS FINAL DISPOSITION WHERE
THE WRITTEN REQUEST THEREFOR AND THE REQUIRED UNDERTAKING, IF ANY IS REQUIRED,
HAS BEEN RECEIVED BY THE SECRETARY OF THE CORPORATION) THAT THE INDEMNITEE HAS
NOT MET THE STANDARD OF CONDUCT SET FORTH IN THE DGCL, BUT THE BURDEN OF PROVING
SUCH DEFENSE, BY CLEAR AND CONVINCING EVIDENCE, WILL BE ON THE CORPORATION.
NEITHER THE FAILURE OF THE CORPORATION TO HAVE MADE A DETERMINATION PRIOR TO THE
COMMENCEMENT OF SUCH ACTION THAT INDEMNIFICATION OF THE INDEMNITEE IS PROPER IN
THE CIRCUMSTANCES BECAUSE HE OR SHE HAS MET THE APPLICABLE STANDARD OF CONDUCT
SET FORTH IN THE DGCL, NOR AN ACTUAL DETERMINATION BY THE CORPORATION
17
THAT THE INDEMNITEE HAS NOT MET SUCH APPLICABLE STANDARD OF CONDUCT, SHALL BE A
DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT THE INDEMNITEE HAS NOT MET
THE APPLICABLE STANDARD OF CONDUCT.
(C)
THE CORPORATION SHALL BE PRECLUDED FROM
ASSERTING IN ANY JUDICIAL PROCEEDING OR ARBITRATION COMMENCED PURSUANT TO THIS
SECTION 6.04 OF THESE BY-LAWS THAT THE PROCEDURES AND THE PRESUMPTIONS OF THIS
ARTICLE VI ARE NOT VALID, BINDING AND ENFORCEABLE AND SHALL STIPULATE IN ANY
SUCH COURT OR