RIGHT TO BRING SUCH SUIT.
(B)
IN THE EVENT THAT A DETERMINATION HAS BEEN
MADE PURSUANT TO SECTION 6(D) OF THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED
TO INDEMNIFICATION, ANY JUDICIAL PROCEEDING COMMENCED PURSUANT TO THIS SECTION 7
WILL BE CONDUCTED IN ALL RESPECTS AS A DE NOVO TRIAL ON THE MERITS, AND
INDEMNITEE WILL NOT BE PREJUDICED BY REASON OF THE ADVERSE DETERMINATION UNDER
SECTION 6(D).
(C)
IF A DETERMINATION HAS BEEN MADE PURSUANT
TO SECTION 6(D) OF THIS AGREEMENT THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION, THE COMPANY WILL BE BOUND BY SUCH DETERMINATION IN ANY JUDICIAL
PROCEEDING COMMENCED PURSUANT TO THIS SECTION 7, ABSENT (I) A MISSTATEMENT BY
INDEMNITEE OF A MATERIAL FACT, OR AN OMISSION OF A MATERIAL FACT NECESSARY TO
MAKE INDEMNITEE'S MISSTATEMENT NOT MATERIALLY MISLEADING IN CONNECTION WITH THE
APPLICATION FOR INDEMNIFICATION, OR (II) A PROHIBITION OF SUCH INDEMNIFICATION
UNDER APPLICABLE LAW.
(D)
THE COMPANY WILL INDEMNIFY, DEFEND, AND HOLD
HARMLESS INDEMNITEE AGAINST ANY AND ALL EXPENSES AND, IF REQUESTED BY
INDEMNITEE, WILL (WITHIN 30 DAYS AFTER RECEIPT BY THE COMPANY OF A WRITTEN
REQUEST THEREFOR) ADVANCE, TO THE EXTENT NOT PROHIBITED BY LAW, SUCH EXPENSES TO
INDEMNITEE, THAT ARE ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN
CONNECTION WITH ANY ACTION BROUGHT BY INDEMNITEE (I) FOR INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES FROM THE COMPANY UNDER THIS AGREEMENT, (II) TO RECOVER
DAMAGES FOR BREACH OF THIS AGREEMENT, OR (III) RELATED TO ANY DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE POLICIES MAINTAINED BY THE COMPANY, REGARDLESS OF
WHETHER INDEMNITEE ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH
INDEMNIFICATION, ADVANCEMENT OF EXPENSES, OR INSURANCE RECOVERY, AS THE CASE MAY
BE.
(E)
THE COMPANY WILL BE PRECLUDED FROM
ASSERTING IN ANY PROCEEDING COMMENCED PURSUANT TO THIS SECTION 7 THAT THE
PROCEDURES AND PRESUMPTIONS OF THIS AGREEMENT ARE NOT VALID, BINDING, AND
ENFORCEABLE AND WILL STIPULATE IN ANY COURT OF COMPETENT JURISDICTION THAT THE
COMPANY IS BOUND BY ALL THE PROVISIONS OF THIS AGREEMENT.
(F)
NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, NO DETERMINATION AS TO ENTITLEMENT TO INDEMNIFICATION
UNDER THIS AGREEMENT WILL BE REQUIRED TO BE MADE PRIOR TO THE FINAL DISPOSITION
OF THE PROCEEDING.
8.
NON-EXCLUSIVITY; SURVIVAL OF RIGHTS;
INSURANCE; SUBROGATION.
(A)
THE RIGHTS OF INDEMNIFICATION AS PROVIDED
BY THIS AGREEMENT WILL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH
INDEMNITEE MAY AT ANY TIME BE ENTITLED UNDER APPLICABLE LAW, THE CERTIFICATE,
THE BYLAWS, ANY AGREEMENT, A VOTE OF STOCKHOLDERS,
9
A RESOLUTION OF DIRECTORS, OR OTHERWISE.
NO AMENDMENT, ALTERATION, OR REPEAL OF
THIS AGREEMENT OR OF ANY PROVISION OF THIS AGREEMENT WILL LIMIT OR RESTRICT ANY
RIGHT OF INDEMNITEE UNDER THIS AGREEMENT IN RESPECT OF ANY ACTION TAKEN OR
OMITTED BY SUCH INDEMNITEE IN HIS OR HER CORPORATE STATUS PRIOR TO SUCH
AMENDMENT, ALTERATION, OR REPEAL.
TO THE EXTENT THAT A CHANGE IN THE DGCL,
WHETHER BY STATUTE OR JUDICIAL DECISION, PERMITS GREATER INDEMNIFICATION THAN
WOULD BE AFFORDED CURRENTLY UNDER THE CERTIFICATE, THE BYLAWS, OR THIS
AGREEMENT, IT IS THE INTENT OF THE PARTIES TO