BE PRESUMED TO BE ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT AND THE COMPANY SHALL HAVE THE BURDEN OF
PROVING INDEMNITEE IS NOT ENTITLED TO
11
INDEMNIFICATION OR ADVANCEMENT OF EXPENSES, AS THE CASE MAY BE, AND THE COMPANY
MAY NOT REFER TO OR INTRODUCE INTO EVIDENCE ANY DETERMINATION PURSUANT TO
SECTION 12(A) OF THIS AGREEMENT ADVERSE TO INDEMNITEE FOR ANY PURPOSE. IF
INDEMNITEE COMMENCES A JUDICIAL PROCEEDING OR ARBITRATION PURSUANT TO THIS
SECTION 14, INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE THE COMPANY FOR ANY
ADVANCES PURSUANT TO SECTION 10 UNTIL A FINAL DETERMINATION IS MADE WITH RESPECT
TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION (AS TO WHICH ALL RIGHTS OF APPEAL
HAVE BEEN EXHAUSTED OR LAPSED).
(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 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.
(E)
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS INDEMNITEE TO THE
FULLEST EXTENT PERMITTED BY LAW AGAINST ALL EXPENSES AND, IF REQUESTED BY
INDEMNITEE, SHALL (WITHIN TEN (10) DAYS AFTER THE COMPANY'S RECEIPT OF SUCH
WRITTEN REQUEST) ADVANCE TO INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, SUCH EXPENSES WHICH ARE INCURRED BY INDEMNITEE IN CONNECTION
WITH ANY JUDICIAL PROCEEDING OR ARBITRATION BROUGHT BY INDEMNITEE (I) 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
COMPANY'S BYLAWS NOW OR HEREAFTER IN EFFECT; OR (II) FOR RECOVERY OR ADVANCES
UNDER ANY INSURANCE POLICY MAINTAINED BY ANY PERSON FOR THE BENEFIT OF
INDEMNITEE, REGARDLESS OF WHETHER INDEMNITEE ULTIMATELY IS DETERMINED TO BE
ENTITLED TO SUCH INDEMNIFICATION, ADVANCE, CONTRIBUTION OR INSURANCE RECOVERY,
AS THE CASE MAY BE.
(F)
INTEREST SHALL BE PAID BY THE COMPANY TO INDEMNITEE AT THE LEGAL
RATE UNDER DELAWARE LAW FOR AMOUNTS WHICH THE COMPANY INDEMNIFIES OR IS OBLIGED
TO INDEMNIFY FOR THE PERIOD COMMENCING WITH THE DATE ON WHICH INDEMNITEE
REQUESTS INDEMNIFICATION, CONTRIBUTION,
REIMBURSEMENT OR ADVANCEMENT OF ANY
EXPENSES AND ENDING WITH THE DATE ON WHICH SUCH PAYMENT IS MADE TO INDEMNITEE BY
THE COMPANY.
15.
ESTABLISHMENT OF TRUST. IN THE EVENT OF A POTENTIAL CHANGE IN
CONTROL, THE COMPANY SHALL, UPON WRITTEN REQUEST BY INDEMNITEE, CREATE A "TRUST"
FOR THE BENEFIT OF INDEMNITEE AND FROM TIME TO TIME UPON WRITTEN REQUEST OF