SECTION 14 SHALL BE CONDUCTED IN ALL RESPECTS AS A DE NOVO TRIAL, OR
ARBITRATION, ON THE MERITS AND INDEMNITEE SHALL NOT BE PREJUDICED BY REASON OF
THAT ADVERSE DETERMINATION.
IN ANY JUDICIAL PROCEEDING OR ARBITRATION COMMENCED
PURSUANT TO THIS SECTION 14 THE COMPANY SHALL HAVE THE BURDEN OF PROVING
INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES, AS THE
CASE MAY BE.
(C)
IF A DETERMINATION SHALL HAVE BEEN MADE PURSUANT TO
SECTION 12(A) OF THIS AGREEMENT THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION,
THE COMPANY SHALL BE BOUND BY SUCH DETERMINATION IN ANY JUDICIAL PROCEEDING OR
ARBITRATION COMMENCED PURSUANT TO THIS SECTION 14, ABSENT (I) A MISSTATEMENT BY
INDEMNITEE OF A MATERIAL FACT, OR AN OMISSION OF A MATERIAL FACT NECESSARY TO
MAKE INDEMNITEE'S STATEMENT NOT MATERIALLY MISLEADING, IN CONNECTION WITH THE
REQUEST FOR INDEMNIFICATION, OR (II) A PROHIBITION OF SUCH INDEMNIFICATION UNDER
APPLICABLE LAW.
(D)
THE COMPANY SHALL, TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, BE
PRECLUDED FROM ASSERTING IN ANY JUDICIAL PROCEEDING OR ARBITRATION COMMENCED
PURSUANT TO THIS SECTION 14 THAT THE PROCEDURES AND PRESUMPTIONS OF THIS
AGREEMENT ARE NOT VALID, BINDING AND ENFORCEABLE AND SHALL STIPULATE IN ANY SUCH
COURT OR BEFORE ANY SUCH ARBITRATOR THAT THE COMPANY IS BOUND BY ALL THE
PROVISIONS OF THIS AGREEMENT.
IT IS THE INTENT OF THE COMPANY THAT, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE INDEMNITEE NOT BE REQUIRED TO INCUR LEGAL
FEES OR OTHER EXPENSES ASSOCIATED WITH THE INTERPRETATION, ENFORCEMENT OR
DEFENSE OF INDEMNITEE'S RIGHTS UNDER THIS AGREEMENT BY LITIGATION OR OTHERWISE
BECAUSE THE COST AND EXPENSE THEREOF WOULD SUBSTANTIALLY DETRACT FROM THE
BENEFITS INTENDED TO BE EXTENDED TO THE INDEMNITEE HEREUNDER.
THE COMPANY
SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNIFY INDEMNITEE AGAINST ANY
AND ALL EXPENSES AND, IF REQUESTED BY INDEMNITEE, SHALL (WITHIN TEN (10) DAYS
AFTER RECEIPT BY THE COMPANY OF A WRITTEN REQUEST THEREFOR) ADVANCE, TO THE
EXTENT NOT PROHIBITED BY LAW, SUCH EXPENSES TO INDEMNITEE, WHICH ARE INCURRED BY
INDEMNITEE IN CONNECTION WITH ANY ACTION BROUGHT BY INDEMNITEE FOR
INDEMNIFICATION OR ADVANCE OF EXPENSES FROM THE COMPANY UNDER THIS AGREEMENT OR
UNDER ANY DIRECTORS' AND OFFICERS' LIABILITY INSURANCE POLICIES MAINTAINED BY
THE COMPANY IF INDEMNITEE IS WHOLLY SUCCESSFUL ON THE UNDERLYING CLAIMS; IF
INDEMNITTEE IS NOT WHOLLY SUCCESSFUL ON THE UNDERLYING CLAIMS, THEN SUCH
INDEMNIFICATION AND ADVANCEMENT SHALL BE ONLY TO THE EXTENT INDEMNITEE IS
SUCCESSFUL ON SUCH UNDERLYING CLAIMS OR OTHERWISE AS PERMITTED BY LAW, WHICHEVER
IS GREATER.
(E)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO
DETERMINATION AS TO ENTITLEMENT OF INDEMNITEE TO INDEMNIFICATION UNDER THIS
AGREEMENT SHALL BE REQUIRED TO BE MADE PRIOR TO THE FINAL DISPOSITION OF THE
PROCEEDING.
12
SECTION 15.
NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(A)
THE RIGHTS OF INDEMNIFICATION AND TO RECEIVE ADVANCEMENT OF
EXPENSES AS PROVIDED BY THIS AGREEMENT SHALL NOT BE DEEMED EXCLUSIVE OF ANY
OTHER RIGHTS TO WHICH INDEMNITEE MAY AT ANY TIME BE ENTITLED UNDER APPLICABLE
LAW, THE COMPANY'S CERTIFICATE OF INCORPORATION, THE COMPANY'S