FAITH JUDGMENT OF
THE COMPANY, AFTER CONSULTATION WITH COUNSEL, ADVISABLE OR NECESSARY TO PROTECT
THE ATTORNEY-CLIENT PRIVILEGE BETWEEN THE COMPANY AND COUNSEL OR (2) IF THE
BOARD OF DIRECTORS REASONABLY DETERMINES IN GOOD FAITH, AFTER CONSULTATION WITH
COUNSEL, THAT ATTENDANCE BY SUCH OBSERVER WOULD CONFLICT WITH FIDUCIARY
REQUIREMENTS UNDER APPLICABLE LAW AND (C) SUCH INSTITUTIONAL INVESTOR SHALL
CAUSE ITS OBSERVER TO AGREE TO HOLD IN CONFIDENCE AND TRUST AND TO ACT IN A
FIDUCIARY MANNER WITH RESPECT TO ALL INFORMATION PROVIDED TO SUCH OBSERVER.
EACH INSTITUTIONAL INVESTOR COVENANTS AND AGREES TO HOLD ALL SUCH INFORMATION
OBTAINED FROM ITS OBSERVER AS PROVIDED IN THE PRIOR SENTENCE IN CONFIDENCE
PURSUANT TO THE CONFIDENTIALITY AGREEMENT.
(VI)
SO LONG AS ANY INSTITUTIONAL INVESTOR HAS THE
RIGHT TO APPOINT A BOARD REPRESENTATIVE PURSUANT TO SECTION 9(A)(I), SUCH
INSTITUTIONAL INVESTOR SHALL HAVE THE RIGHT TO EITHER NOMINATE ONE PERSON (THE
"BANK BOARD REPRESENTATIVE") TO BE ELECTED OR APPOINTED AS DIRECTOR TO THE BOARD
OF DIRECTORS OF THE BANK (THE "BANK BOARD") OR TO APPOINT ONE PERSON TO ATTEND
ALL MEETINGS OF THE BANK BOARD AND ALL COMMITTEES THEREOF AS AN OBSERVER (THE
"BANK BOARD OBSERVER"); PROVIDED THAT THE APPOINTMENT BY AN INSTITUTIONAL
INVESTOR OF A BANK BOARD OBSERVER SHALL NOT PREVENT SUCH INSTITUTIONAL INVESTOR
FROM NOMINATING A BANK BOARD REPRESENTATIVE IN LIEU OF A BANK BOARD OBSERVER AT
A FUTURE TIME.
THE OBLIGATIONS OF THE COMPANY OTHERWISE WITH RESPECT TO, AND
THE CONDITIONS ON THE APPOINTMENT AND, IF APPLICABLE, DIRECTORSHIP OF, THE BANK
BOARD REPRESENTATIVE AND THE BANK BOARD OBSERVER SHALL BE SUBSTANTIALLY THE SAME
AS THOSE WITH RESPECT TO OR APPLICABLE TO THE BOARD REPRESENTATIVE AND OBSERVER,
RESPECTIVELY.
(VII)
THE RIGHTS PROVIDED BY THIS SECTION 9(A) ARE
PERSONAL TO EACH INSTITUTIONAL INVESTOR AND IN NO EVENT SHALL SUCH RIGHTS BE
ASSIGNABLE.
28
(B)
RESERVATION FOR ISSUANCE.
THE COMPANY SHALL
AT ALL TIMES RESERVE AND KEEP AVAILABLE, OUT OF ITS AUTHORIZED BUT UNISSUED
CONVERSION SECURITIES, SOLELY FOR THE PURPOSE OF EFFECTING THE CONVERSION OF
SHARES OF THE CONVERTIBLE PREFERRED STOCK, THE FULL NUMBER OF CONVERSION
SECURITIES ISSUABLE UPON THE CONVERSION OF ALL THE SHARES OF THE CONVERTIBLE
PREFERRED STOCK FROM TIME TO TIME OUTSTANDING.
(C)
INDEMNIFICATION.
(I)
THE COMPANY AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS EACH INVESTOR AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, PARTNERS, MEMBERS AND EMPLOYEES, AND EACH PERSON WHO
CONTROLS SUCH INVESTOR WITHIN THE MEANING OF THE EXCHANGE ACT AND THE
REGULATIONS THEREUNDER, TO THE FULLEST EXTENT LAWFUL, FROM AND AGAINST ANY AND
ALL ACTIONS, SUITS, CLAIMS, PROCEEDINGS, COSTS, LOSSES, LIABILITIES, DAMAGES,
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS), AMOUNTS PAID
IN SETTLEMENT AND OTHER COSTS (COLLECTIVELY, "LOSSES") ARISING OUT OF OR
RESULTING FROM (1) ANY INACCURACY IN OR BREACH OF THE COMPANY'S REPRESENTATIONS
OR WARRANTIES IN THIS AGREEMENT, (2) ANY BREACH OF AGREEMENTS OR COVENANTS IN
THIS AGREEMENT (OTHER THAN ANY LOSSES TO THE EXTENT ATTRIBUTABLE TO THE ACTS,
ERRORS OR OMISSIONS ON THE PART OF SUCH INVESTOR), AND (3) ANY ACTION, SUIT,
CLAIM, PROCEEDING OR INVESTIGATION