7 HEREOF, SUCH DIRECTOR SHALL BE ENTITLED TO A FINAL
ADJUDICATION IN AN APPROPRIATE COURT OF THE STATE OF DELAWARE OR ANY OTHER COURT
OF COMPETENT JURISDICTION OF HIS ENTITLEMENT TO SUCH INDEMNIFICATION OR ADVANCE.
SUCH JUDICIAL PROCEEDING SHALL BE MADE DE NOVO AND SUCH DIRECTOR SHALL NOT BE
PREJUDICED BY REASON OF A DETERMINATION (IF SO MADE) THAT HE IS NOT ENTITLED TO
INDEMNIFICATION. IF A DETERMINATION IS MADE OR DEEMED TO HAVE BEEN MADE PURSUANT
TO THE TERMS OF SECTION 6 OR SECTION 7 HEREOF THAT A DIRECTOR IS ENTITLED TO
INDEMNIFICATION, THE CORPORATION SHALL BE BOUND BY SUCH DETERMINATION AND SHALL
BE PRECLUDED FROM ASSERTING THAT SUCH DETERMINATION HAS NOT BEEN MADE OR THAT
THE PROCEDURE BY WHICH SUCH DETERMINATION WAS MADE IS NOT VALID, BINDING AND
ENFORCEABLE. THE CORPORATION FURTHER AGREES TO STIPULATE IN ANY SUCH COURT THAT
THE CORPORATION IS BOUND BY ALL THE PROVISIONS OF THIS AGREEMENT AND IS
PRECLUDED FROM MAKING ANY ASSERTION TO THE CONTRARY. IF THE COURT SHALL
DETERMINE THAT A DIRECTOR IS ENTITLED TO ANY INDEMNIFICATION HEREUNDER, THE
CORPORATION SHALL PAY ALL REASONABLE EXPENSES (INCLUDING ATTORNEYS' FEES) AND
COSTS ACTUALLY INCURRED BY SUCH DIRECTOR IN CONNECTION WITH SUCH ADJUDICATION
(INCLUDING, WITHOUT LIMITATION, ANY APPELLATE PROCEEDINGS). IF A DIRECTOR
COMMENCES A JUDICIAL PROCEEDING OR ARBITRATION PURSUANT TO THIS SECTION 8, SUCH
DIRECTOR SHALL NOT BE REQUIRED TO REIMBURSE THE CORPORATION FOR ANY ADVANCES
PURSUANT TO SECTION 5 HEREOF UNTIL A FINAL DETERMINATION IS MADE WITH RESPECT TO
SUCH DIRECTOR'S ENTITLEMENT TO INDEMNIFICATION (AS TO WHICH ALL RIGHTS OF APPEAL
HAVE BEEN EXHAUSTED OR LAPSED). THE CORPORATION SHALL INDEMNIFY AND HOLD
HARMLESS EACH DIRECTOR TO THE FULLEST EXTENT PERMITTED BY LAW AGAINST ALL
EXPENSES AND, IF REQUESTED BY SUCH DIRECTOR, SHALL (WITHIN TEN (10) DAYS AFTER
THE CORPORATION'S RECEIPT OF SUCH WRITTEN REQUEST) ADVANCE SUCH EXPENSES TO SUCH
DIRECTOR, WHICH ARE INCURRED BY THE DIRECTOR IN CONNECTION WITH ANY JUDICIAL
PROCEEDING OR ARBITRATION BROUGHT BY THE DIRECTOR (A) TO ENFORCE HIS RIGHTS
UNDER, OR TO RECOVER DAMAGES FOR BREACH OF, THIS AGREEMENT OR ANY OTHER
INDEMNIFICATION, ADVANCEMENT OR CONTRIBUTION AGREEMENT OR PROVISION OF THE
CORPORATION'S CERTIFICATE OF INCORPORATION OR BY-LAWS NOW OR HEREAFTER IN EFFECT
OR (B) FOR RECOVERY OR ADVANCES UNDER ANY INSURANCE POLICY MAINTAINED BY ANY
PERSON FOR THE BENEFIT OF THE DIRECTOR, REGARDLESS OF WHETHER THE DIRECTOR
ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION, ADVANCE,
CONTRIBUTION OR INSURANCE RECOVERY, AS THE CASE MAY BE. INTEREST SHALL BE PAID
BY THE CORPORATION TO A DIRECTOR AT THE LEGAL RATE UNDER DELAWARE LAW FOR
AMOUNTS WHICH THE CORPORATION INDEMNIFIES OR IS OBLIGED TO INDEMNIFY FOR THE
PERIOD COMMENCING WITH THE DATE ON WHICH INDEMNITEE REQUESTS INDEMNIFICATION (OR
REIMBURSEMENT OR ADVANCEMENT
8
OF ANY EXPENSES) AND ENDING WITH THE DATE ON WHICH SUCH PAYMENT IS MADE TO THE
DIRECTOR BY THE CORPORATION.
SECTION 9.
REIMBURSEMENT FOR EXPENSES OF WITNESS. TO THE EXTENT
THAT A DIRECTOR HAS SERVED AS A WITNESS IN ANY PROCEEDING AT A TIME WHEN SUCH
DIRECTOR