TO REQUESTS UNDER PARAGRAPHS 3, 4 OR 8, BY CLEAR AND CONVINCING EVIDENCE, THE
CORPORATION DETERMINES WITHIN SUCH 30-DAY PERIOD THAT THE INDEMNITEE DID NOT
MEET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN PARAGRAPH 3 OR 4, AS THE
CASE MAY BE.
SUCH DETERMINATION, AND ANY DETERMINATION THAT ADVANCED EXPENSES
MUST BE REPAID TO THE CORPORATION, SHALL BE MADE IN EACH INSTANCE (A) BY A
MAJORITY VOTE OF THE DIRECTORS OF THE CORPORATION CONSISTING OF PERSONS WHO ARE
NOT AT THAT TIME PARTIES TO THE PROCEEDING ("DISINTERESTED DIRECTORS"), WHETHER
OR NOT A QUORUM, (B) BY A COMMITTEE OF DISINTERESTED DIRECTORS DESIGNATED BY A
MAJORITY VOTE OF DISINTERESTED DIRECTORS, WHETHER OR NOT A QUORUM, (C) IF THERE
ARE NO DISINTERESTED DIRECTORS, OR IF THE DISINTERESTED DIRECTORS SO DIRECT, BY
INDEPENDENT LEGAL COUNSEL (WHO MAY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BE REGULAR LEGAL COUNSEL TO THE CORPORATION) IN A WRITTEN OPINION, OR (D) BY THE
STOCKHOLDERS OF THE CORPORATION.
10.
REMEDIES.
THE RIGHT TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES AS PROVIDED BY THIS AGREEMENT SHALL BE ENFORCEABLE BY
THE INDEMNITEE IN ANY COURT OF COMPETENT JURISDICTION.
UNLESS OTHERWISE
REQUIRED BY LAW, THE BURDEN OF PROVING THAT INDEMNIFICATION IS NOT APPROPRIATE
SHALL BE ON THE CORPORATION.
NEITHER THE FAILURE OF THE CORPORATION TO HAVE
MADE A DETERMINATION PRIOR TO THE COMMENCEMENT OF SUCH ACTION THAT
INDEMNIFICATION IS PROPER IN THE CIRCUMSTANCES BECAUSE THE INDEMNITEE HAS MET
THE APPLICABLE STANDARD OF CONDUCT, NOR AN ACTUAL DETERMINATION BY THE
CORPORATION PURSUANT TO PARAGRAPH 9 THAT THE INDEMNITEE HAS NOT MET SUCH
APPLICABLE STANDARD OF CONDUCT, SHALL BE A DEFENSE TO THE ACTION OR CREATE A
PRESUMPTION THAT THE INDEMNITEE HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT.
THE INDEMNITEE'S EXPENSES (OF THE TYPE DESCRIBED IN THE DEFINITION OF "EXPENSES"
IN PARAGRAPH 2(C)) REASONABLY INCURRED IN CONNECTION
4
WITH SUCCESSFULLY ESTABLISHING THE INDEMNITEE'S RIGHT TO INDEMNIFICATION, IN
WHOLE OR IN PART, IN ANY SUCH PROCEEDING SHALL ALSO BE INDEMNIFIED BY THE
CORPORATION.
11.
PARTIAL INDEMNIFICATION.
IF THE INDEMNITEE
IS ENTITLED UNDER ANY PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE
CORPORATION FOR SOME OR A PORTION OF THE EXPENSES, JUDGMENTS, FINES, PENALTIES
OR AMOUNTS PAID IN SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY OR ON BEHALF
OF THE INDEMNITEE IN CONNECTION WITH ANY PROCEEDING BUT NOT, HOWEVER, FOR THE
TOTAL AMOUNT THEREOF, THE CORPORATION SHALL NEVERTHELESS INDEMNIFY THE
INDEMNITEE FOR THE PORTION OF SUCH EXPENSES, JUDGMENTS, FINES, PENALTIES OR
AMOUNTS PAID IN SETTLEMENT TO WHICH THE INDEMNITEE IS ENTITLED.
12.
SUBROGATION.
IN THE EVENT OF ANY PAYMENT
UNDER THIS AGREEMENT, THE CORPORATION SHALL BE SUBROGATED TO THE EXTENT OF SUCH
PAYMENT TO ALL OF THE RIGHTS OF RECOVERY OF THE INDEMNITEE, WHO SHALL EXECUTE
ALL PAPERS REQUIRED AND TAKE ALL ACTION NECESSARY TO SECURE SUCH RIGHTS,
INCLUDING EXECUTION OF SUCH DOCUMENTS AS ARE NECESSARY TO ENABLE THE CORPORATION
TO BRING SUIT TO ENFORCE SUCH RIGHTS.
13.
TERM OF AGREEMENT.
THIS AGREEMENT SHALL
CONTINUE UNTIL AND TERMINATE UPON THE LATER OF (A) SIX YEARS