SUCH
ACTION, SUIT, PROCEEDING, ALTERNATIVE DISPUTE RESOLUTION MECHANISM, HEARING,
INQUIRY OR INVESTIGATION), JUDGMENTS, FINES, PENALTIES AND AMOUNTS PAID IN
SETTLEMENT (IF SUCH SETTLEMENT IS APPROVED IN ADVANCE BY THE COMPANY, WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD) OF SUCH CLAIM AND ANY FEDERAL,
STATE, LOCAL OR FOREIGN TAXES IMPOSED ON INDEMNITEE AS A RESULT OF THE ACTUAL OR
DEEMED RECEIPT OF ANY PAYMENTS UNDER THIS AGREEMENT (COLLECTIVELY, HEREINAFTER
"EXPENSES"), INCLUDING ALL INTEREST, ASSESSMENTS AND OTHER CHARGES PAID OR
PAYABLE IN CONNECTION WITH OR IN RESPECT OF SUCH EXPENSES.
SUCH PAYMENT OF
EXPENSES SHALL BE MADE BY THE COMPANY AS SOON AS PRACTICABLE BUT IN ANY EVENT NO
LATER THAN THIRTY (30) DAYS AFTER WRITTEN DEMAND BY INDEMNITEE THEREFOR IS
PRESENTED TO THE COMPANY, UNLESS A DETERMINATION IS MADE BY THE REVIEWING PARTY
WITHIN SAID THIRTY DAY PERIOD THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED
UNDER APPLICABLE LAW.
1.2
REVIEWING PARTY.
NOTWITHSTANDING THE
FOREGOING, (I) THE OBLIGATIONS OF THE COMPANY UNDER SECTION 1.1 SHALL BE SUBJECT
TO THE CONDITION THAT THE REVIEWING PARTY (AS DESCRIBED IN SECTION 9.5 HEREOF)
SHALL NOT HAVE DETERMINED (IN A WRITTEN OPINION, IN ANY CASE IN WHICH THE
INDEPENDENT LEGAL COUNSEL REFERRED TO IN SECTION 1.3 HEREOF IS INVOLVED) THAT
INDEMNITEE WOULD NOT BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW (I.E.,
THE REVIEWING PARTY SHALL HAVE DETERMINED THAT INDEMNITEE HAS MET THE APPLICABLE
STANDARDS SET FORTH IN SECTION 145(A) AND (B) OF THE DELAWARE GENERAL
CORPORATION LAW ("DGCL") OR SUCCESSOR PROVISIONS), AND (II) THE OBLIGATION OF
THE COMPANY TO MAKE AN ADVANCE PAYMENT OF EXPENSES TO INDEMNITEE PURSUANT TO
SECTION 2.1 (AN "EXPENSE ADVANCE") SHALL BE SUBJECT TO THE CONDITION THAT, IF,
WHEN AND TO THE EXTENT THAT THE REVIEWING PARTY DETERMINES THAT INDEMNITEE WOULD
NOT BE PERMITTED TO BE SO INDEMNIFIED UNDER APPLICABLE LAW, THE COMPANY SHALL BE
ENTITLED TO BE REIMBURSED BY INDEMNITEE (WHO HEREBY AGREES TO REIMBURSE THE
COMPANY) FOR ALL SUCH AMOUNTS THERETOFORE PAID; PROVIDED, HOWEVER, THAT IF
INDEMNITEE HAS COMMENCED OR THEREAFTER COMMENCES LEGAL PROCEEDINGS IN A COURT OF
COMPETENT JURISDICTION TO SECURE A DETERMINATION THAT INDEMNITEE SHOULD BE
INDEMNIFIED UNDER APPLICABLE LAW, ANY DETERMINATION MADE BY THE REVIEWING PARTY
THAT INDEMNITEE WOULD NOT BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW
SHALL NOT BE BINDING AND INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE THE
COMPANY FOR ANY EXPENSE ADVANCE UNTIL A FINAL JUDICIAL DETERMINATION IS MADE
WITH RESPECT THERETO (AS TO WHICH ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN
EXHAUSTED OR LAPSED).
INDEMNITEE'S OBLIGATION TO REIMBURSE THE COMPANY FOR ANY
EXPENSE ADVANCE SHALL BE UNSECURED AND NO INTEREST SHALL BE CHARGED THEREON.
IF
THERE HAS NOT BEEN A CHANGE IN CONTROL (AS DEFINED IN SECTION 9.3 HEREOF), THE
REVIEWING PARTY SHALL BE SELECTED BY THE COMPANY'S BOARD OF DIRECTORS, AND IF
THERE HAS BEEN SUCH A CHANGE IN CONTROL (OTHER THAN A CHANGE IN CONTROL WHICH
HAS BEEN APPROVED BY A MAJORITY OF THE COMPANY'S BOARD OF DIRECTORS WHO WERE
DIRECTORS IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL),