DETERMINES THAT INDEMNITEE SUBSTANTIVELY WOULD NOT BE
PERMITTED TO BE INDEMNIFIED IN WHOLE OR IN PART UNDER APPLICABLE LAW, INDEMNITEE
SHALL HAVE THE RIGHT TO COMMENCE LITIGATION IN ANY COURT IN THE STATE OF
DELAWARE HAVING SUBJECT MATTER JURISDICTION THEREOF AND IN WHICH VENUE IS PROPER
SEEKING AN INITIAL DETERMINATION BY THE COURT OR CHALLENGING ANY SUCH
DETERMINATION BY THE REVIEWING PARTY OR ANY ASPECT THEREOF, INCLUDING THE LEGAL
OR FACTUAL BASES THEREFOR, AND THE COMPANY HEREBY CONSENTS TO SERVICE OF PROCESS
AND TO APPEAR IN ANY SUCH PROCEEDING.
ANY DETERMINATION BY THE REVIEWING PARTY
OTHERWISE SHALL BE CONCLUSIVE AND BINDING ON THE COMPANY AND INDEMNITEE.
3.
CHANGE IN CONTROL.
THE COMPANY AGREES THAT IF THERE IS A CHANGE
IN CONTROL OF THE COMPANY (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) THEN WITH RESPECT TO ALL MATTERS
THEREAFTER ARISING CONCERNING THE RIGHTS OF INDEMNITEE TO INDEMNITY PAYMENTS AND
EXPENSE ADVANCES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR COMPANY BY-LAW
NOW OR HEREAFTER IN EFFECT RELATING TO CLAIMS FOR INDEMNIFIABLE EVENTS, THE
COMPANY SHALL SEEK LEGAL ADVICE ONLY FROM INDEPENDENT LEGAL COUNSEL SELECTED BY
INDEMNITEE
4
AND APPROVED BY THE COMPANY (WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD).
SUCH COUNSEL, AMONG OTHER THINGS, SHALL RENDER ITS WRITTEN OPINION
TO THE COMPANY AND INDEMNITEE AS TO WHETHER AND TO WHAT EXTENT THE INDEMNITEE
WOULD BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW.
THE COMPANY AGREES
TO PAY THE REASONABLE FEES OF THE INDEPENDENT LEGAL COUNSEL REFERRED TO ABOVE
AND TO INDEMNIFY FULLY SUCH COUNSEL AGAINST ANY AND ALL EXPENSES (INCLUDING
ATTORNEYS' FEES), CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
4.
ESTABLISHMENT OF TRUST.
IN THE EVENT OF A POTENTIAL CHANGE IN
CONTROL, THE COMPANY SHALL, UPON WRITTEN REQUEST BY INDEMNITEE, CREATE A TRUST
FOR THE BENEFIT OF INDEMNITEE AND FROM TIME TO TIME UPON WRITTEN REQUEST OF
INDEMNITEE SHALL FUND SUCH TRUST IN AN AMOUNT SUFFICIENT TO SATISFY ANY AND ALL
EXPENSES REASONABLY ANTICIPATED AT THE TIME OF EACH SUCH REQUEST TO BE INCURRED
IN CONNECTION WITH INVESTIGATING, PREPARING FOR AND DEFENDING ANY CLAIM RELATING
TO AN INDEMNIFIABLE EVENT, AND ANY AND ALL JUDGMENTS, FINES, PENALTIES AND
SETTLEMENT AMOUNTS OF ANY AND ALL CLAIMS RELATING TO AN INDEMNIFIABLE EVENT FROM
TIME TO TIME ACTUALLY PAID OR CLAIMED, REASONABLY ANTICIPATED OR PROPOSED TO BE
PAID, PROVIDED THAT IN NO EVENT SHALL MORE THAN $250,000 BE REQUIRED TO BE
DEPOSITED IN ANY TRUST CREATED HEREUNDER (AND NO MORE THAN $1,000,000 IN THE
AGGREGATE WITH RESPECT TO ANY SUCH TRUSTS CREATED UNDER THIS AGREEMENT AND ALL
INDEMNIFICATION AGREEMENTS WITH DIRECTORS AND OFFICERS) IN EXCESS OF AMOUNTS
DEPOSITED IN RESPECT OF REASONABLY ANTICIPATED EXPENSES.
THE AMOUNT OR AMOUNTS
TO BE DEPOSITED IN THE TRUST PURSUANT TO THE FOREGOING FUNDING OBLIGATION SHALL
BE DETERMINED BY THE REVIEWING PARTY, IN ANY CASE IN WHICH