INDEMNIFIED PARTY AGAINST ALL REASONABLE COSTS AND EXPENSES
(INCLUDING ATTORNEYS' AND OTHER PROFESSIONALS' FEES AND EXPENSES), SUCH AMOUNT
TO BE PAYABLE IN ADVANCE UPON REQUEST AS PROVIDED IN SECTION 7.1(B), RELATING TO
THE ENFORCEMENT OF SUCH INDEMNIFIED PARTY'S RIGHTS UNDER THIS SECTION 7.1 OR
UNDER ANY CHARTER, BYLAW OR AGREEMENT REGARDLESS OF WHETHER SUCH INDEMNIFIED
PARTY IS ULTIMATELY DETERMINED TO BE ENTITLED TO INDEMNIFICATION HEREUNDER OR
THEREUNDER, PROVIDED THAT SUCH INDEMNIFIED PARTY PROVIDES AN UNDERTAKING TO
REPAY ANY ADVANCES OF COSTS AND EXPENSES IF IT IS ULTIMATELY DETERMINED THAT
SUCH INDEMNIFIED PARTY IS NOT ENTITLED TO INDEMNIFICATION HEREUNDER OR
THEREUNDER.
(E)
THIS SECTION 7.1 SHALL SURVIVE THE CONSUMMATION OF THE MERGER AND
IS INTENDED TO BE FOR THE BENEFIT OF, AND SHALL BE ENFORCEABLE BY, THE
INDEMNIFIED PARTIES REFERRED TO HEREIN, THEIR HEIRS AND PERSONAL REPRESENTATIVES
AND SHALL BE BINDING ON PARENT AND THE SURVIVING CORPORATION AND THEIR
SUCCESSORS AND ASSIGNS AND THE COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL
NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH AN INDEMNIFIED PARTY IS
ENTITLED, WHETHER PURSUANT TO LAW, CONTRACT OR OTHERWISE.
(F)
IF PARENT OR THE SURVIVING CORPORATION OR ANY OF THEIR SUCCESSORS
OR ASSIGNS (I) CONSOLIDATES WITH OR MERGES INTO ANY OTHER PERSON AND SHALL NOT
BE THE CONTINUING OR SURVIVING CORPORATION OR ENTITY OF SUCH CONSOLIDATION OR
MERGER, OR (II) TRANSFERS OR CONVEYS ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES
AND ASSETS TO ANY PERSON, THEN, AND IN EACH CASE, TO THE EXTENT NOT ASSUMED BY
OPERATION OF LAW, PROPER PROVISION SHALL BE MADE SO THAT THE SUCCESSORS AND
ASSIGNS OF PARENT OR THE SURVIVING CORPORATION, AS THE CASE MAY BE, SHALL ASSUME
THE OBLIGATIONS SET FORTH IN THIS SECTION 7.1 AND ALL RIGHTS TO INDEMNIFICATION
AND/OR ADVANCEMENT OF EXPENSES CONTAINED IN ANY AGREEMENT WITH ANY INDEMNIFIED
PARTIES AS IN EFFECT ON THE DATE HEREOF WITH RESPECT TO MATTERS OCCURRING ON OR
PRIOR TO THE EFFECTIVE TIME (INCLUDING THE TRANSACTIONS CONTEMPLATED HEREBY).
THE PROVISIONS OF THIS SECTION 7.1 ARE INTENDED TO BE FOR THE BENEFIT OF, AND
SHALL BE ENFORCEABLE BY, THE INDEMNIFIED PARTIES AND THE SURVIVING CORPORATION,
AND HIS OR HER OR ITS HEIRS AND REPRESENTATIVES.
(G)
NOTHING IN THIS AGREEMENT IS INTENDED TO, SHALL BE CONSTRUED TO OR
SHALL RELEASE, WAIVE OR IMPAIR ANY RIGHTS TO DIRECTORS' AND OFFICERS' INSURANCE
CLAIMS UNDER ANY POLICY THAT IS OR HAS BEEN IN EXISTENCE WITH RESPECT TO THE
COMPANY OR ANY OF ITS OFFICERS,
55
DIRECTORS OR EMPLOYEES, IT BEING UNDERSTOOD AND AGREED THAT THE INDEMNIFICATION
PROVIDED FOR IN THIS SECTION 7.1 IS NOT PRIOR TO OR IN SUBSTITUTION FOR ANY SUCH
CLAIMS UNDER SUCH POLICIES.
7.2.
EMPLOYEE BENEFITS.
(A)
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 7.2, FOR A PERIOD OF
ONE (1) YEAR AFTER THE EFFECTIVE TIME, THE SURVIVING CORPORATION SHALL, AND
PARENT SHALL CAUSE THE SURVIVING CORPORATION TO, PROVIDE TO INDIVIDUALS WHO ARE
EMPLOYEES OF THE COMPANY AND EACH COMPANY SUBSIDIARY IMMEDIATELY PRIOR TO THE
EFFECTIVE TIME AND WHO SUBSEQUENTLY BECOME EMPLOYEES OF THE SURVIVING