IN CONNECTION WITH
ANY DETERMINATION BY THE INDEPENDENT LEGAL COUNSEL OR OTHERWISE AS TO WHETHER
THE INDEMNITEE IS ENTITLED TO BE INDEMNIFIED HEREUNDER THE BURDEN OF PROOF SHALL
BE ON THE COMPANY TO ESTABLISH THAT THE INDEMNITEE IS NOT SO ENTITLED.
8.
NO PRESUMPTIONS.
SUBJECT TO
SECTION 145(B) OF THE DELAWARE GENERAL CORPORATION LAW, THE TERMINATION OF ANY
ACTION, SUIT OR PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT, CONVICTION, OR UPON A
PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT, OF ITSELF, CREATE A
PRESUMPTION THAT THE INDEMNITEE DID NOT ACT IN GOOD FAITH AND IN A MANNER WHICH
THE INDEMNITEE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS
OF THE COMPANY, AND, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD
REASONABLE CAUSE TO BELIEVE THAT THE INDEMNITEE'S CONDUCT WAS UNLAWFUL.
NEITHER
THE FAILURE OF THE INDEPENDENT LEGAL COUNSEL TO HAVE MADE A DETERMINATION AS TO
WHETHER THE INDEMNITEE HAS MET ANY PARTICULAR STANDARD OF CONDUCT OR HAD ANY
PARTICULAR BELIEF, NOR AN ACTUAL DETERMINATION BY THE INDEPENDENT LEGAL COUNSEL
THAT THE INDEMNITEE HAS NOT MET SUCH STANDARD OF CONDUCT OR DID NOT HAVE SUCH
BELIEF, PRIOR TO THE COMMENCEMENT OF LEGAL PROCEEDINGS BY THE INDEMNITEE TO
SECURE A JUDICIAL DETERMINATION THAT THE INDEMNITEE SHOULD BE INDEMNIFIED UNDER
APPLICABLE LAW, SHALL BE A DEFENSE TO THE INDEMNITEE'S CLAIM FOR INDEMNIFICATION
OR CREATE A PRESUMPTION THAT THE INDEMNITEE HAS NOT MET ANY PARTICULAR STANDARD
OF CONDUCT OR DID NOT HAVE ANY PARTICULAR BELIEF.
9.
NONEXCLUSIVITY.
THE RIGHTS OF THE
INDEMNITEE HEREUNDER SHALL BE IN ADDITION TO ANY OTHER RIGHTS THE INDEMNITEE MAY
HAVE UNDER THE COMPANY'S BY-LAWS, ITS AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION, THE DELAWARE GENERAL CORPORATION LAW OR OTHERWISE.
TO THE EXTENT
THAT A CHANGE IN THE DELAWARE GENERAL CORPORATION LAW (WHETHER BY STATUTE OR
JUDICIAL DECISION) PERMITS GREATER INDEMNIFICATION BY AGREEMENT THAN WOULD BE
AFFORDED CURRENTLY UNDER THIS AGREEMENT, IT IS THE INTENT OF THE PARTIES HERETO
THAT INDEMNITEE SHALL ENJOY BY THIS AGREEMENT THE GREATER BENEFITS SO AFFORDED
BY SUCH CHANGE.
10.
LIABILITY INSURANCE.
TO THE EXTENT THE
COMPANY MAINTAINS AN INSURANCE POLICY OR POLICIES PROVIDING DIRECTORS' AND/OR
OFFICERS' LIABILITY INSURANCE THAT COVER INDEMNIFIABLE EVENTS THAT MAY HAVE
OCCURRED PRIOR TO FEBRUARY 11, 2003, THE COMPANY SHALL CAUSE THE INDEMNITEE TO
BE COVERED BY SUCH POLICY OR POLICIES, IN ACCORDANCE WITH ITS OR THEIR TERMS, TO
THE MAXIMUM EXTENT OF THE COVERAGE AVAILABLE FOR ANY COMPANY DIRECTOR OR OFFICER
WITH RESPECT TO SUCH PERIOD OF TIME.
11.
AMENDMENTS.
NO SUPPLEMENT, MODIFICATION OR
AMENDMENT OF THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY BOTH
OF THE PARTIES HERETO.
NO WAIVER OF ANY OF THE PROVISIONS OF THIS AGREEMENT
SHALL BE DEEMED OR SHALL CONSTITUTE A WAIVER OF ANY OTHER PROVISIONS HEREOF
(WHETHER OR NOT SIMILAR) NOR SHALL SUCH WAIVER CONSTITUTE A CONTINUING WAIVER.
12.
SUBROGATION.
IN THE EVENT OF PAYMENT UNDER
THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO
ALL OF THE RIGHTS OF RECOVERY OF