COMPANY WILL NOT BE ENTITLED TO ASSUME THE
DEFENSE OF ANY INDEMNIFIABLE CLAIM AS TO WHICH INDEMNITEE HAS REASONABLY MADE
THE CONCLUSION PROVIDED FOR IN SECTION 1.14(B).
SECTION 1.15.
ACTION BY INDEMNITEE. IN THE EVENT THAT (I) A DETERMINATION
IS MADE PURSUANT TO THIS AGREEMENT THAT INDEMNITEE IS NOT ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT, (II) AN ADVANCEMENT OF EXPENSES IS NOT
TIMELY MADE PURSUANT TO THIS AGREEMENT, (III)
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NO DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION IS MADE WITHIN THE APPLICABLE
TIME PERIODS SPECIFIED IN THIS AGREEMENT OR (IV) PAYMENT OF INDEMNIFIED AMOUNTS
IS NOT MADE WITHIN THE APPLICABLE TIME PERIODS SPECIFIED HEREIN, INDEMNITEE WILL
BE ENTITLED TO AN ADJUDICATION IN AN APPROPRIATE COURT OF THE STATE OF DELAWARE,
OR IN ANY OTHER COURT OF COMPETENT JURISDICTION, OF HIS OR HER ENTITLEMENT TO
SUCH INDEMNIFICATION OR PAYMENT OF THE ADVANCEMENT OF EXPENSES. ALTERNATIVELY,
INDEMNITEE, AT INDEMNITEE'S OPTION, MAY SEEK AN AWARD IN ARBITRATION TO BE
CONDUCTED BY A SINGLE ARBITRATOR PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF
THE AMERICAN ARBITRATION ASSOCIATION. THE PROVISIONS OF DELAWARE LAW (WITHOUT
REGARD TO ITS CONFLICT OF LAWS RULES) WILL APPLY TO ANY SUCH ARBITRATION. THE
COMPANY WILL NOT OPPOSE INDEMNITEE'S RIGHT TO SEEK ANY SUCH ADJUDICATION OR
AWARD IN ARBITRATION.
SECTION 1.16.
COMPANY BEARS EXPENSES IF INDEMNITEE SEEKS ADJUDICATION. IN
THE EVENT THAT INDEMNITEE, PURSUANT TO SECTION 1.15, SEEKS A JUDICIAL
ADJUDICATION OR ARBITRATION OF HIS OR HER RIGHTS TO INDEMNIFICATION UNDER, OR TO
RECOVER DAMAGES FOR BREACH OF, THIS AGREEMENT, ANY OTHER AGREEMENT FOR
INDEMNIFICATION, THE INDEMNIFICATION OR ADVANCEMENT OF EXPENSES PROVISIONS IN
THE GOVERNANCE DOCUMENTS, PAYMENT OF EXPENSES IN ADVANCE OR CONTRIBUTION
HEREUNDER OR TO RECOVER UNDER ANY DIRECTOR AND OFFICER LIABILITY INSURANCE
POLICIES MAINTAINED BY THE COMPANY, THE COMPANY WILL, IF INDEMNITEE ULTIMATELY
IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION, PAYMENT OF EXPENSES IN
ADVANCE OR CONTRIBUTION OR INSURANCE RECOVERY TO THE FULLEST EXTENT PERMITTED BY
LAW, INDEMNIFY AND HOLD HARMLESS INDEMNITEE AGAINST ANY AND ALL EXPENSES THAT
ARE PAID OR INCURRED BY INDEMNITEE IN CONNECTION WITH SUCH JUDICIAL ADJUDICATION
OR ARBITRATION.
SECTION 1.17.
COMPANY BOUND BY PROVISIONS OF THIS AGREEMENT. THE COMPANY
WILL BE PRECLUDED FROM ASSERTING IN ANY JUDICIAL OR ARBITRATION PROCEEDING
COMMENCED PURSUANT TO SECTION 1.15 THAT THE PROCEDURES AND PRESUMPTIONS OF THIS
AGREEMENT ARE NOT VALID, BINDING AND ENFORCEABLE AND WILL STIPULATE IN ANY SUCH
JUDICIAL OR ARBITRATION PROCEEDING THAT THE COMPANY IS BOUND BY ALL THE
PROVISIONS OF THIS AGREEMENT.
SECTION 1.18.
SUCCESSORS AND BINDING AGREEMENT.
(A)
THE COMPANY SHALL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR
INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION, REORGANIZATION OR OTHERWISE) TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY, BY AGREEMENT
IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE AND HIS OR HER COUNSEL,
EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND
TO THE SAME EXTENT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH
SUCCESSION HAD TAKEN PLACE. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT