A MANNER
WHICH THE INDEMNITEE REASONABLY BELIEVED TO BE IN, OR AT LEAST NOT OPPOSED TO,
THE BEST INTERESTS OF THE CORPORATION OR (B) WITH RESPECT TO ANY CRIMINAL ACTION
OR PROCEEDING, HAD REASONABLE CAUSE TO BELIEVE THAT SUCH CONDUCT WAS UNLAWFUL.
FURTHERMORE, THE KNOWLEDGE OR ACTIONS OR FAILURE TO ACT OF ANY OTHER DIRECTOR,
OFFICER, EMPLOYEE OR AGENT OF THE CORPORATION OR OTHER ENTERPRISE, AS
APPLICABLE, SHALL NOT BE IMPUTED TO THE INDEMNITEE FOR PURPOSES OF DETERMINING
THE INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION UNDER THIS ARTICLE VII.
D.
ADVANCEMENT OF EXPENSES.
EXPENSES
INCURRED BY AN INDEMNITEE IN DEFENDING A PROCEEDING SHALL BE PAID BY THE
CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING AND WITHIN 15
DAYS OF RECEIPT BY THE SECRETARY OF THE CORPORATION OF (I) A WRITTEN REQUEST
THEREFOR SETTING FORTH THE BASIS FOR SUCH INDEMNIFICATION AND (II) IF REQUIRED
BY LAW AT THE TIME SUCH WRITTEN REQUEST IS MADE, AN UNDERTAKING BY OR ON BEHALF
OF THE INDEMNITEE TO REPAY SUCH AMOUNT IF IT SHALL ULTIMATELY BE DETERMINED THAT
THE INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED BY THE CORPORATION AS
AUTHORIZED IN THIS ARTICLE VII.
SUCH ADVANCES SHALL BE MADE ON AN UNSECURED
BASIS, SHALL BE INTEREST-FREE AND SHALL BE MADE WITHOUT REGARD TO THE
INDEMNITEE'S ABILITY TO REPAY SUCH AMOUNTS AND WITHOUT REGARD TO THE
INDEMNITEE'S ULTIMATE ENTITLEMENT TO INDEMNIFICATION UNDER THIS ARTICLE VII OR
OTHERWISE.
E.
REMEDIES OF THE INDEMNITEE.
(I)
IF A DETERMINATION IS MADE THAT THE
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES UNDER
THIS ARTICLE VII, (A) THE INDEMNITEE SHALL BE ENTITLED TO SEEK AN ADJUDICATION
OF ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCEMENT OF EXPENSES EITHER, AT THE
INDEMNITEE'S SOLE OPTION, (1) IN AN APPROPRIATE COURT OF THE STATE OF DELAWARE
OR ANY OTHER COURT OF COMPETENT JURISDICTION OR (2) IN AN ARBITRATION TO BE
CONDUCTED BY A SINGLE ARBITRATOR PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION, (B) ANY SUCH JUDICIAL PROCEEDING OR ARBITRATION SHALL
BE DE NOVO AND THE INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF SUCH ADVERSE
DETERMINATION, AND (C) 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 VII.
5
(II)
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
(A) THE INDEMNITEE INTENTIONALLY MISREPRESENTED OR FAILED TO DISCLOSE A MATERIAL
FACT IN THE WRITTEN REQUEST FOR INDEMNIFICATION OR (B) SUCH INDEMNIFICATION IS
PROHIBITED BY THE DGCL.
IN THE EVENT THAT (1) ADVANCEMENT OF EXPENSES IS NOT
TIMELY MADE PURSUANT TO SECTION D OF THIS ARTICLE VII OR (2) PAYMENT OF
INDEMNIFICATION IS NOT MADE WITHIN