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, TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, 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, HOLD HARMLESS, EXONERATION, ADVANCEMENT OR CONTRIBUTION
AGREEMENT OR PROVISION OF THE CHARTER 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, HOLDS HARMLESS OR
EXONERATES, OR IS OBLIGED TO INDEMNIFY, HOLD HARMLESS OR EXONERATE FOR THE
PERIOD COMMENCING WITH THE DATE ON WHICH INDEMNITEE REQUESTS INDEMNIFICATION, TO
BE HELD HARMLESS, EXONERATED, CONTRIBUTION, REIMBURSEMENT OR ADVANCEMENT OF ANY
EXPENSES AND ENDING WITH THE DATE ON WHICH SUCH PAYMENT IS MADE TO INDEMNITEE BY
THE COMPANY.
(G)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO
DETERMINATION AS TO ENTITLEMENT OF INDEMNITEE TO INDEMNIFICATION UNDER THIS
AGREEMENT SHALL BE REQUIRED TO BE MADE PRIOR TO THE FINAL DISPOSITION OF THE
PROCEEDING.
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 INDEMNITEE
SHALL FUND SUCH TRUST IN AN AMOUNT SUFFICIENT TO SATISFY ANY AND ALL EXPENSES
REASONABLY ANTICIPATED AT THE TIME OF EACH SUCH
13
REQUEST TO BE INCURRED