THAT INDEMNITEE IS NOT ENTITLED UNDER THIS AGREEMENT
TO INDEMNIFICATION WITH RESPECT TO SUCH EXPENSES.
THIS
UNDERTAKING IS AN
UNLIMITED GENERAL OBLIGATION OF INDEMNITEE.
9.
PROCEDURE FOR ADVANCE PAYMENT OF
EXPENSES.
INDEMNITEE SHALL SUBMIT TO THE COMPANY A WRITTEN REQUEST SPECIFYING
THE INDEMNIFIABLE EXPENSES FOR WHICH INDEMNITEE SEEKS AN ADVANCEMENT UNDER
SECTION 8 OF THIS AGREEMENT, TOGETHER WITH DOCUMENTATION EVIDENCING THAT
INDEMNITEE HAS INCURRED SUCH INDEMNIFIABLE EXPENSES.
PAYMENT OF INDEMNIFIABLE
EXPENSES UNDER SECTION 8 SHALL BE MADE NO LATER THAN TEN (10) CALENDAR DAYS
AFTER THE COMPANY'S RECEIPT OF SUCH REQUEST.
10.
REMEDIES OF INDEMNITEE.
(A)
RIGHT TO PETITION COURT.
IN THE EVENT THAT INDEMNITEE MAKES A
REQUEST FOR PAYMENT OF INDEMNIFIABLE AMOUNTS UNDER SECTIONS 3 AND 5 ABOVE OR A
REQUEST FOR AN ADVANCEMENT OF INDEMNIFIABLE EXPENSES UNDER SECTIONS 8 AND 9
ABOVE AND THE COMPANY FAILS TO MAKE SUCH PAYMENT OR ADVANCEMENT IN A TIMELY
MANNER PURSUANT TO THE TERMS OF THIS AGREEMENT OR IN THE EVENT THAT THE COMPANY
OR ANY OTHER PERSON TAKES OR THREATENS TO TAKE ANY ACTION TO DECLARE THIS
AGREEMENT VOID OR UNENFORCEABLE, OR INSTITUTES ANY LITIGATION OR OTHER ACTION OR
PROCEEDING DESIGNED TO DENY OR TO RECOVER FROM THE INDEMNITEE THE BENEFITS
PROVIDED OR INTENDED TO BE PROVIDED TO THE INDEMNITEE UNDER THIS AGREEMENT,
INDEMNITEE MAY PETITION THE COURT OF CHANCERY TO ENFORCE THE COMPANY'S
OBLIGATIONS UNDER THIS AGREEMENT AND THE COMPANY IRREVOCABLY AUTHORIZES THE
INDEMNITEE FROM TIME TO TIME TO RETAIN COUNSEL OF INDEMNITEE'S CHOICE, AT THE
EXPENSE OF THE COMPANY AS HEREAFTER PROVIDED, TO ADVISE AND REPRESENT THE
INDEMNITEE IN CONNECTION WITH ANY SUCH INTERPRETATION, ENFORCEMENT OR DEFENSE,
INCLUDING WITHOUT LIMITATION, THE INITIATION OR DEFENSE OF ANY LITIGATION OR
OTHER LEGAL ACTION, WHETHER BROUGHT BY OR AGAINST THE COMPANY OR ANY DIRECTOR,
OFFICER, STOCKHOLDER OR OTHER PERSON AFFILIATED WITH THE COMPANY, IN ANY
JURISDICTION.
NOTWITHSTANDING ANY EXISTING OR PRIOR ATTORNEY-CLIENT
RELATIONSHIP BETWEEN THE COMPANY AND SUCH COUNSEL, THE COMPANY IRREVOCABLY
CONSENTS TO THE INDEMNITEE'S ENTERING INTO AN ATTORNEY-CLIENT RELATIONSHIP WITH
SUCH COUNSEL, AND IN THAT CONNECTION THEREWITH, THE COMPANY AND THE INDEMNITEE
AGREE THAT A CONFIDENTIAL RELATIONSHIP SHALL EXIST BETWEEN THE INDEMNITEE AND
SUCH COUNSEL.
(B)
BURDEN OF PROOF.
IN ANY JUDICIAL PROCEEDING BROUGHT UNDER
SECTION 10(A) ABOVE, THE COMPANY SHALL HAVE THE BURDEN OF PROVING THAT
INDEMNITEE IS NOT ENTITLED TO PAYMENT OF INDEMNIFIABLE AMOUNTS HEREUNDER.
(C)
EXPENSES.
THE COMPANY AGREES TO REIMBURSE INDEMNITEE IN FULL
FOR ANY EXPENSES INCURRED BY INDEMNITEE IN CONNECTION WITH INVESTIGATING,
PREPARING FOR, LITIGATING, DEFENDING OR SETTLING ANY ACTION BROUGHT BY
INDEMNITEE UNDER SECTION 10(A) ABOVE, OR IN CONNECTION WITH ANY
5
CLAIM OR COUNTERCLAIM BROUGHT BY THE COMPANY IN CONNECTION THEREWITH, WHETHER OR
NOT INDEMNITEE IS SUCCESSFUL IN WHOLE OR IN PART IN CONNECTION WITH ANY SUCH
ACTION.
(D)
FAILURE TO ACT NOT A DEFENSE.
THE FAILURE OF THE COMPANY
(INCLUDING ITS BOARD OF DIRECTORS OR ANY COMMITTEE THEREOF, INDEPENDENT LEGAL
COUNSEL, OR STOCKHOLDERS) TO MAKE A DETERMINATION CONCERNING THE PERMISSIBILITY
OF THE PAYMENT OF INDEMNIFIABLE AMOUNTS OR THE ADVANCEMENT OF INDEMNIFIABLE