AND LIABILITIES.
13.
ESTABLISHMENT OF TRUST.
UPON A CHANGE OF CONTROL OF THE COMPANY, THE
COMPANY OR ITS SUCCESSOR OR ASSIGN SHALL ESTABLISH A TRUST (THE "TRUST") FOR THE
BENEFIT OF THE INDEMNITEE, THE TRUSTEE (THE "TRUSTEE") OF WHICH SHALL BE CHOSEN
BY THE COMPANY AND WHICH IS REASONABLY ACCEPTABLE TO THE INDEMNITEE. THEREAFTER,
FROM TIME TO TIME, UPON RECEIPT OF A WRITTEN REQUEST FROM INDEMNITEE, THE
COMPANY SHALL FUND THE TRUST IN AMOUNTS SUFFICIENT TO SATISFY ANY AND ALL
LIABILITIES AND EXPENSES REASONABLY ANTICIPATED AT THE TIME OF SUCH REQUEST FOR
WHICH THE COMPANY MAY INDEMNIFY INDEMNITEE HEREUNDER. THE AMOUNT OR AMOUNTS TO
BE DEPOSITED IN THE TRUST PURSUANT TO THE FOREGOING FUNDING OBLIGATION SHALL BE
DETERMINED BY MUTUAL AGREEMENT OF THE INDEMNITEE AND THE COMPANY OR, IF THE
COMPANY AND THE INDEMNITEE ARE UNABLE TO REACH SUCH AN AGREEMENT, BY INDEPENDENT
COUNSEL SELECTED JOINTLY BY THE COMPANY AND THE INDEMNITEE.
THE TERMS OF THE
TRUST SHALL PROVIDE THAT EXCEPT UPON THE CONSENT OF THE INDEMNITEE AND THE
COMPANY, (I) THE TRUST SHALL NOT BE REVOKED OR THE PRINCIPAL THEREOF INVADED,
WITHOUT THE WRITTEN CONSENT OF THE INDEMNITEE, (II) THE TRUSTEE SHALL ADVANCE TO
THE INDEMNITEE, WITHIN 20 DAYS OF A REQUEST BY THE INDEMNITEE, ANY AND ALL
EXPENSES, THE INDEMNITEE HEREBY AGREEING TO REIMBURSE THE TRUSTEE OF THE TRUST
FOR ALL EXPENSES SO ADVANCED IF A FINAL DETERMINATION IS MADE BY A COURT IN A
FINAL ADJUDICATION FROM WHICH THERE IS NO FURTHER RIGHT OF APPEAL THAT THE
INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED UNDER THIS AGREEMENT, (III) THE
TRUST SHALL CONTINUE TO BE FUNDED BY THE COMPANY IN ACCORDANCE WITH THE FUNDING
OBLIGATIONS SET FORTH IN THIS SECTION, (IV) THE TRUSTEE SHALL PROMPTLY PAY TO
THE INDEMNITEE ANY AMOUNTS TO WHICH THE INDEMNITEE SHALL BE ENTITLED PURSUANT TO
THIS AGREEMENT, AND (V) ALL UNEXPENDED FUNDS IN THE TRUST SHALL REVERT TO THE
COMPANY UPON A FINAL DETERMINATION BY INDEPENDENT COUNSEL SELECTED BY INDEMNITEE
OR A COURT OF COMPETENT JURISDICTION THAT INDEMNITEE HAS BEEN FULLY INDEMNIFIED
WITH RESPECT TO THE PROCEEDING GIVING RISE TO THE FUNDING OF THE TRUST UNDER THE
TERMS OF THIS AGREEMENT.
14.
MISCELLANEOUS PROVISIONS.
14.1
SEVERABILITY, PARTIAL INDEMNITY.
IF ANY PROVISION OR PROVISIONS OF
THIS AGREEMENT (OR ANY PORTION THEREOF) SHALL BE HELD BY A COURT OF COMPETENT
JURISDICTION TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON WHATEVER:
(A) SUCH PROVISION SHALL BE LIMITED OR MODIFIED IN ITS APPLICATION TO THE
MINIMUM EXTENT NECESSARY TO AVOID THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY
OF SUCH PROVISION; (B) THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE
REMAINING PROVISIONS OF THIS AGREEMENT SHALL NOT IN ANY WAY BE AFFECTED OR
IMPAIRED THEREBY; AND (C) TO THE FULLEST EXTENT
10
POSSIBLE, THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED SO AS TO GIVE
EFFECT TO THE INTENT MANIFESTED BY THE PROVISION (OR PORTION THEREOF) HELD
INVALID, ILLEGAL OR UNENFORCEABLE. IF INDEMNITEE IS ENTITLED UNDER ANY PROVISION
OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME OR