or an executive officer of a corporation whose shares of common
stock were listed during at least one year of such service on the New York Stock
Exchange or the American Stock Exchange or quoted on the Nasdaq Stock Market.
The party or parties challenging the right of an Indemnified Representative to
the benefits of this Agreement shall have the burden of proof.
The Corporation
shall reimburse the Indemnified Representative for the expenses (including
attorneys' fees and disbursements) incurred in successfully prosecuting or
defending such arbitration.
Any award entered by the arbitrators shall be
final, binding and nonappealable and judgment may be entered thereon by any
party in accordance with applicable law in any court of competent jurisdiction.
This arbitration provision shall be specifically enforceable.
Upon a payment to the Indemnified Representative under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of the Indemnified Representative to recover against any person for such
Liability, and the Indemnified Representative shall execute all documents and
instruments required by the Corporation and shall take such other actions
requested by the Corporation and at its expense as may be necessary to secure
such rights, including the execution of such documents as may be necessary for
the Corporation to bring suit to enforce such rights.
NON-EXCLUSIVITY.
THE INDEMNIFICATION RIGHTS GRANTED TO THE INDEMNIFIED
REPRESENTATIVE PURSUANT TO THIS AGREEMENT (I) SHALL NOT BE DEEMED EXCLUSIVE OF
ANY OTHER RIGHTS TO WHICH THE INDEMNIFIED REPRESENTATIVE MAY BE ENTITLED UNDER
ANY STATUTE, BY-LAW, CERTIFICATE OR ARTICLES OF INCORPORATION, AGREEMENT, VOTE
OF SHAREHOLDERS OR DISINTERESTED DIRECTORS OR OTHERWISE, BOTH AS TO ACTION IN AN
INDEMNIFIED CAPACITY AND IN ANY OTHER CAPACITY, AND (II) SHALL CONTINUE AS TO A
PERSON WHO HAS CEASED TO BE ELECTED, APPOINTED OR EMPLOYED BY THE CORPORATION IN
AN INDEMNIFIED CAPACITY IN RESPECT OF MATTERS ARISING WHEN SUCH PERSONS
PERFORMED IN AN INDEMNIFIED CAPACITY.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE CORPORATION AND THE INDEMNIFIED REPRESENTATIVE ACKNOWLEDGE THE
PROVISIONS OF THE CORPORATION'S CERTIFICATE OF INCORPORATION AND BY-LAWS
REGARDING INDEMNIFICATION AND CONFIRM THAT THE INDEMNIFIED REPRESENTATIVE IS
ACTING IN RELIANCE THEREON.
DURATION OF AGREEMENT.
THIS AGREEMENT SHALL APPLY TO ANY CLAIM ASSERTED
AND ANY LIABILITY INCURRED IN CONNECTION WITH ANY CLAIM ASSERTED ON OR AFTER THE
DATE ON WHICH THE INDEMNIFIED REPRESENTATIVE BEGAN SERVING IN EACH INDEMNIFIED
CAPACITY AND SHALL CONTINUE UNTIL AND TERMINATE UPON THE LATER OF:
(A) SIX
YEARS AFTER THE INDEMNIFIED REPRESENTATIVE HAS CEASED TO SERVE IN ANY
INDEMNIFIED CAPACITY; OR (B) ONE YEAR AFTER THE FINAL TERMINATION OF ALL PENDING
OR THREATENED PROCEEDINGS OF THE KIND DESCRIBED HEREIN WITH RESPECT TO THE
INDEMNIFIED REPRESENTATIVE.
DISCHARGE OF DUTY.
THE INDEMNIFIED REPRESENTATIVE SHALL BE DEEMED TO HAVE
DISCHARGED SUCH PERSON'S DUTY TO THE CORPORATION IF HE OR SHE HAS RELIED IN GOOD
FAITH ON INFORMATION, OPINIONS, REPORTS OR STATEMENTS, INCLUDING FINANCIAL
STATEMENTS AND OTHER FINANCIAL DATA, IN EACH CASE PREPARED OR PRESENTED BY ANY
OF THE FOLLOWING:
one or more officers or employees of