CLAIM ASSERTED AGAINST OR
ACTION BROUGHT BY INDEMNITEE FOR (I) INDEMNIFICATION OR
5
ADVANCE PAYMENT FOR EXPENSES BY INSIGHT UNDER THIS AGREEMENT OR ANY OTHER
AGREEMENT, OR RELATING TO INDEMNIFICATION FOR INDEMNIFIABLE EVENTS AND/OR
(II) RECOVERY UNDER ANY DIRECTORS' AND OFFICERS' LIABILITY INSURANCE POLICIES
MAINTAINED BY INSIGHT, REGARDLESS OF WHETHER INDEMNITEE ULTIMATELY IS DETERMINED
TO BE ENTITLED TO SUCH INDEMNIFICATION, ADVANCE EXPENSE PAYMENT OR INSURANCE
RECOVERY, AS THE CASE MAY BE.
EXPENSES SHALL BE ADVANCED, HOWEVER, ONLY UPON
DELIVERY TO INSIGHT OF AN UNDERTAKING BY OR ON BEHALF OF INDEMNITEE TO REPAY
SUCH AMOUNT IF IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT ENTITLED TO BE
INDEMNIFIED BY INSIGHT.
2.04.
PARTIAL INDEMNITY.
IF INDEMNITEE IS ENTITLED UNDER
ANY PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY INSIGHT FOR SOME OR A
PORTION OF THE EXPENSES, JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID IN
SETTLEMENT OF A PROCEEDING BUT NOT, HOWEVER, FOR ALL OF THE TOTAL AMOUNT
THEREOF, INSIGHT SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF
TO WHICH INDEMNITEE IS ENTITLED.
MOREOVER, NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, TO THE EXTENT THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE
MERITS OR OTHERWISE IN DEFENSE OF ANY OR ALL PROCEEDINGS RELATING IN WHOLE OR IN
PART TO AN INDEMNIFIABLE EVENT OR IN DEFENSE OF ANY ISSUE OR MATTER THEREIN,
INCLUDING DISMISSAL WITHOUT PREJUDICE, INDEMNITEE SHALL BE INDEMNIFIED AGAINST
ALL EXPENSES INCURRED IN CONNECTION THEREWITH.
2.05.
DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF AND
PRESUMPTIONS.
IT SHALL BE A DEFENSE TO ANY ACTION BROUGHT BY INDEMNITEE AGAINST
INSIGHT TO ENFORCE THIS AGREEMENT (OTHER THAN AN ACTION BROUGHT TO ENFORCE A
CLAIM FOR EXPENSES INCURRED IN DEFENDING A PROCEEDING IN ADVANCE OF ITS FINAL
DISPOSITION WHERE THE REQUIRED UNDERTAKING HAS BEEN TENDERED TO INSIGHT) THAT
INDEMNITEE HAS NOT MET THE STANDARD OF CONDUCT THAT MAKES IT PERMISSIBLE UNDER
THE DELAWARE GENERAL CORPORATION LAW FOR INSIGHT TO INDEMNIFY INDEMNITEE FOR THE
AMOUNT CLAIMED.
IN CONNECTION WITH ANY DETERMINATION BY THE REVIEWING PARTY OR
OTHERWISE AS TO WHETHER INDEMNITEE IS ENTITLED TO BE INDEMNIFIED HEREUNDER, THE
BURDEN OF PROVING SUCH RIGHT TO INDEMNIFICATION SHALL BE ON INDEMNITEE.
NEITHER
THE FAILURE OF INSIGHT (INCLUDING THE INSIGHT BOARD, SPECIAL INDEPENDENT COUNSEL
OR ITS STOCKHOLDERS) TO HAVE MADE A DETERMINATION PRIOR TO THE COMMENCEMENT OF
SUCH ACTION BY INDEMNITEE THAT INDEMNIFICATION OF INDEMNITEE IS PROPER UNDER THE
CIRCUMSTANCES BECAUSE HE OR SHE HAS MET THE APPLICABLE STANDARD OF CONDUCT SET
FORTH IN THE DELAWARE GENERAL CORPORATION LAW, NOR AN ACTUAL DETERMINATION BY
INSIGHT (INCLUDING THE INSIGHT BOARD, SPECIAL, INDEPENDENT COUNSEL OR ITS
STOCKHOLDERS) THAT INDEMNITEE HAS NOT MET SUCH APPLICABLE STANDARD OF CONDUCT,
SHALL BE A DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT INDEMNITEE HAS NOT
MET THE APPLICABLE STANDARD OF CONDUCT.
FOR PURPOSES OF THIS AGREEMENT, THE
TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT (WHETHER WITH OR
WITHOUT COURT APPROVAL) OR CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE, OR ITS
EQUIVALENT, SHALL NOT CREATE A PRESUMPTION THAT INDEMNITEE DID NOT MEET ANY
PARTICULAR STANDARD OF