ADVANCEMENT OF EXPENSES
GRANTED BY THIS AGREEMENT TO INDEMNITEE SHALL BE ENFORCEABLE BY OR ON BEHALF OF
INDEMNITEE IN ANY COURT OF COMPETENT JURISDICTION IF (I) THE CLAIM FOR
INDEMNIFICATION OR ADVANCES IS DENIED, IN WHOLE OR IN PART, OR (II) NO
DISPOSITION OF SUCH CLAIM IS MADE WITHIN SIXTY (60) DAYS OF WRITTEN REQUEST
THEREFOR.
INDEMNITEE, IN SUCH ENFORCEMENT ACTION, IF SUCCESSFUL IN WHOLE OR IN
PART, SHALL BE ENTITLED TO BE PAID ALSO THE EXPENSE OF PROSECUTING INDEMNITEE'S
CLAIM.
IT SHALL BE A DEFENSE TO ANY ACTION FOR WHICH A CLAIM FOR
INDEMNIFICATION IS MADE UNDER THIS AGREEMENT (OTHER THAN AN ACTION BROUGHT TO
ENFORCE A CLAIM FOR EXPENSES PURSUANT TO SECTION 6 HEREOF, PROVIDED THAT THE
REQUIRED UNDERTAKING HAS BEEN TENDERED TO THE COMPANY) THAT INDEMNITEE IS NOT
ENTITLED TO INDEMNIFICATION BECAUSE OF THE LIMITATIONS SET FORTH IN SECTIONS 4
AND 9 HEREOF.
NEITHER THE FAILURE OF THE COMPANY (INCLUDING ITS BOARD OF
DIRECTORS OR ITS STOCKHOLDERS) TO HAVE MADE A DETERMINATION PRIOR TO THE
COMMENCEMENT OF SUCH ENFORCEMENT ACTION THAT INDEMNIFICATION OF INDEMNITEE IS
PROPER IN THE CIRCUMSTANCES, NOR AN ACTUAL DETERMINATION BY THE COMPANY
(INCLUDING ITS BOARD OF DIRECTORS OR ITS STOCKHOLDERS) THAT SUCH INDEMNIFICATION
IS IMPROPER, SHALL
7
BE A DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT INDEMNITEE IS NOT
ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT OR OTHERWISE.
12.
SUBROGATION.
IN THE EVENT THE COMPANY IS OBLIGATED TO MAKE A PAYMENT
UNDER THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH
PAYMENT TO ALL OF THE RIGHTS OF RECOVERY UNDER AN INSURANCE POLICY OR ANY OTHER
INDEMNITY AGREEMENT COVERING THE INDEMNITEE, WHO SHALL EXECUTE ALL DOCUMENTS
REQUIRED AND SHALL DO ALL ACTS THAT MAY BE NECESSARY TO SECURE SUCH RIGHTS AND
TO ENABLE THE COMPANY EFFECTIVELY TO BRING SUIT TO ENFORCE SUCH RIGHTS.
13.
SURVIVAL OF RIGHTS.
(A)
ALL AGREEMENTS AND OBLIGATIONS OF THE COMPANY CONTAINED HEREIN SHALL
CONTINUE DURING THE PERIOD INDEMNITEE IS AN AGENT OF THE COMPANY AND SHALL
CONTINUE THEREAFTER SO LONG AS INDEMNITEE SHALL BE SUBJECT TO ANY POSSIBLE CLAIM
OR THREATENED, PENDING OR COMPLETED ACTION, SUIT OR PROCEEDING, WHETHER CIVIL,
CRIMINAL, ARBITRATIONAL, ADMINISTRATIVE OR INVESTIGATIVE, BY REASON OF THE FACT
THAT INDEMNITEE WAS SERVING IN THE CAPACITY REFERRED TO HEREIN.
(B)
THE COMPANY SHALL REQUIRE ANY SUCCESSOR TO THE COMPANY (WHETHER DIRECT OR
INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) OR TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY, EXPRESSLY TO ASSUME
AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT
THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD TAKEN
PLACE.
14.
INTERPRETATION OF AGREEMENT.
IT IS UNDERSTOOD THAT THE PARTIES HERETO
INTEND THIS AGREEMENT TO BE INTERPRETED AND ENFORCED SO AS TO PROVIDE
INDEMNIFICATION TO THE INDEMNITEE TO THE FULLEST EXTENT PERMITTED BY LAW,
INCLUDING IN THOSE CIRCUMSTANCES IN WHICH INDEMNIFICATION WOULD OTHERWISE BE
DISCRETIONARY.
15.
SEVERABILITY.
IF ANY PROVISION OR PROVISIONS OF THIS AGREEMENT SHALL