AGENT TO REPAY SAID
AMOUNTS IF IT SHALL BE DETERMINED ULTIMATELY THAT AGENT IS NOT ENTITLED TO BE
INDEMNIFIED UNDER THE PROVISIONS OF THIS AGREEMENT, THE BYLAWS, THE CODE OR
OTHERWISE.
10.
ENFORCEMENT.
ANY RIGHT TO INDEMNIFICATION OR
ADVANCES GRANTED BY THIS AGREEMENT TO AGENT SHALL BE ENFORCEABLE BY OR ON BEHALF
OF AGENT IN ANY COURT OF COMPETENT JURISDICTION IF (I) THE CLAIM FOR
INDEMNIFICATION OR ADVANCES IS DENIED BY THE CORPORATION, IN WHOLE OR IN PART,
OR (II) NO DISPOSITION OF SUCH CLAIM IS MADE WITHIN NINETY (90) DAYS OF REQUEST
THEREFOR.
THE AGENT'S EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED IN
CONNECTION WITH SUCCESSFULLY ESTABLISHING AGENT'S RIGHT TO INDEMNIFICATION, IN
WHOLE OR IN PART, IN ANY SUCH PROCEEDING OR OTHERWISE SHALL ALSO BE INDEMNIFIED
BY THE CORPORATION.
IT SHALL BE A DEFENSE TO ANY ACTION FOR WHICH A CLAIM FOR
INDEMNIFICATION IS MADE UNDER SECTION 2 HEREOF (OTHER THAN AN ACTION BROUGHT TO
ENFORCE A CLAIM FOR EXPENSES PURSUANT TO SECTION 9 HEREOF, PROVIDED THAT THE
REQUIRED UNDERTAKING HAS BEEN TENDERED TO THE CORPORATION) THAT AGENT HAS NOT
MET THE STANDARD OF CONDUCT SET FORTH IN SECTION 2 HEREOF OR IS NOT ENTITLED TO
INDEMNIFICATION BECAUSE OF THE LIMITATIONS SET FORTH IN SECTION 4 HEREOF BUT THE
BURDEN OF PROVING SUCH DEFENSE BY CLEAR AND CONVINCING EVIDENCE SHALL BE ON THE
CORPORATION.
NEITHER THE FAILURE OF THE CORPORATION (INCLUDING ITS BOARD OF
DIRECTORS, INDEPENDENT LEGAL COUNSEL OR ITS STOCKHOLDERS) TO HAVE MADE A
DETERMINATION PRIOR TO THE COMMENCEMENT OF SUCH ENFORCEMENT ACTION THAT
INDEMNIFICATION OF AGENT IS PROPER IN THE CIRCUMSTANCES, NOR AN ACTUAL
DETERMINATION BY THE CORPORATION (INCLUDING ITS BOARD OF DIRECTORS, INDEPENDENT
LEGAL COUNSEL OR ITS STOCKHOLDERS) THAT SUCH INDEMNIFICATION IS IMPROPER SHALL
BE A DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT AGENT IS NOT ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT OR OTHERWISE.
11.
INSURANCE AND SUBROGATION.
(A)
THE CORPORATION SHALL PURCHASE AND MAINTAIN
INSURANCE IN REASONABLE AMOUNTS FROM ESTABLISHED AND REPUTABLE INSURERS ON
BEHALF OF AGENT (WHICH SHALL INCLUDE SO CALLED "TAIL" COVERAGE) WHO IS OR WAS OR
HAS AGREED TO SERVE AT THE REQUEST OF THE CORPORATION AS A DIRECTOR OR OFFICER
OF THE CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS A
DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF ANOTHER CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST, EMPLOYEE BENEFIT PLAN OR OTHER ENTERPRISE AGAINST ANY LIABILITY
ASSERTED AGAINST, AND INCURRED BY, AGENT OR ON INDEMNITEE'S BEHALF IN ANY SUCH
CAPACITY, OR ARISING OUT OF AGENT'S STATUS AS SUCH, WHETHER OR NOT THE
CORPORATION WOULD HAVE THE POWER TO INDEMNIFY AGENT AGAINST SUCH LIABILITY UNDER
THE PROVISIONS OF THIS AGREEMENT.
IF THE CORPORATION HAS SUCH INSURANCE IN
EFFECT AT THE TIME THE CORPORATION RECEIVES FROM AGENT ANY NOTICE OF THE
COMMENCEMENT OF A PROCEEDING, THE CORPORATION SHALL GIVE PROMPT NOTICE OF THE
COMMENCEMENT OF SUCH PROCEEDING TO THE INSURERS IN ACCORDANCE WITH THE
PROCEDURES SET FORTH IN THE POLICY.
THE CORPORATION SHALL THEREAFTER TAKE ALL
NECESSARY OR DESIRABLE ACTION TO CAUSE