FOR PURPOSES OF DETERMINING THE RIGHT TO INDEMNIFICATION
UNDER THIS AGREEMENT.
(G)
THE INDEMNITEE SHALL COOPERATE WITH THE PERSON, PERSONS OR ENTITY
MAKING SUCH DETERMINATION WITH RESPECT TO THE INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION, INCLUDING PROVIDING TO SUCH PERSON, PERSONS OR ENTITY UPON
REASONABLE ADVANCE REQUEST ANY DOCUMENTATION OR INFORMATION WHICH IS NOT
PRIVILEGED OR OTHERWISE PROTECTED FROM DISCLOSURE AND WHICH IS REASONABLY
AVAILABLE TO THE INDEMNITEE AND REASONABLY NECESSARY TO SUCH DETERMINATION.
ANY
EXPENSES ACTUALLY AND REASONABLY INCURRED BY THE INDEMNITEE IN SO COOPERATING
SHALL BE BORNE BY THE CORPORATION (IRRESPECTIVE OF THE DETERMINATION AS TO THE
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE CORPORATION HEREBY
INDEMNIFIES THE INDEMNITEE THEREFROM.
9.
REMEDIES.
(A)
THE RIGHT TO INDEMNIFICATION AND ADVANCEMENT OF EXPENSES AS
PROVIDED BY THIS AGREEMENT SHALL BE ENFORCEABLE BY INDEMNITEE IN ANY COURT OF
COMPETENT JURISDICTION.
ANY SUCH JUDICIAL PROCEEDING SHALL BE CONDUCTED IN ALL
RESPECTS AS A DE NOVO TRIAL ON THE MERITS.
(B)
IN CONNECTION WITH ANY DETERMINATION AS TO WHETHER THE INDEMNITEE
IS ENTITLED TO BE INDEMNIFIED UNDER THIS AGREEMENT, THE COURT SHALL PRESUME THAT
THE INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT AND IS ENTITLED TO
INDEMNIFICATION, AND, UNLESS OTHERWISE REQUIRED BY LAW, THE BURDEN OF PROOF
SHALL BE ON THE CORPORATION TO ESTABLISH THAT THE INDEMNITEE IS NOT SO
ENTITLED.
NEITHER THE FAILURE OF THE BOARD OF DIRECTORS (OR OTHER PERSON OR
BODY APPOINTED PURSUANT TO SECTION 8) TO HAVE MADE A DETERMINATION THAT
INDEMNIFICATION IS PROPER IN THE CIRCUMSTANCES BECAUSE INDEMNITEE HAS MET THE
APPLICABLE STANDARD OF CONDUCT, NOR AN ACTUAL DETERMINATION PURSUANT TO
SECTION 8 THAT INDEMNITEE HAS NOT MET SUCH APPLICABLE STANDARD OF CONDUCT, SHALL
BE A DEFENSE TO AN ACTION BROUGHT TO ENFORCE THIS AGREEMENT OR CREATE A
PRESUMPTION THAT INDEMNITEE HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT.
(C)
THE CORPORATION SHALL INDEMNIFY INDEMNITEE AGAINST ANY AND ALL
EXPENSES THAT ARE INCURRED BY INDEMNITEE IN CONNECTION WITH ANY ACTION BROUGHT
BY INDEMNITEE FOR (I) INDEMNIFICATION OR ADVANCEMENT OF EXPENSES BY THE
CORPORATION UNDER THIS AGREEMENT OR UNDER APPLICABLE LAW OR THE CORPORATION'S
CERTIFICATE OF INCORPORATION OR BYLAWS NOW OR HEREAFTER IN EFFECT RELATING TO
INDEMNIFICATION, AND/OR (II) RECOVERY UNDER DIRECTORS' AND OFFICERS' LIABILITY
INSURANCE POLICIES MAINTAINED BY THE CORPORATION, BUT ONLY IN THE EVENT THAT
INDEMNITEE ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION OR
INSURANCE RECOVERY, AS THE CASE MAY BE.
THE CORPORATION SHALL, IF SO REQUESTED
BY INDEMNITEE, ADVANCE THE FOREGOING EXPENSES TO INDEMNITEE, SUBJECT TO AND IN
ACCORDANCE WITH SECTION 7.
10.
PARTIAL INDEMNIFICATION.
IF THE INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE CORPORATION FOR SOME OR A
PORTION OF THE EXPENSES, JUDGMENTS, FINES, PENALTIES OR AMOUNTS PAID IN
SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY OR ON BEHALF OF THE INDEMNITEE IN
CONNECTION WITH ANY PROCEEDING BUT NOT, HOWEVER, FOR THE TOTAL AMOUNT THEREOF,
THE CORPORATION SHALL NEVERTHELESS INDEMNIFY THE INDEMNITEE FOR THE PORTION OF
SUCH EXPENSES, JUDGMENTS, FINES, PENALTIES OR AMOUNTS PAID IN SETTLEMENT TO
WHICH THE INDEMNITEE