THE REVIEWING PARTY
SHALL BE THE INDEPENDENT LEGAL COUNSEL REFERRED TO IN SECTION 1.3 HEREOF.
IF
THERE HAS BEEN NO DETERMINATION BY THE REVIEWING PARTY OR IF THE REVIEWING PARTY
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 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.
2
1.3
CHANGE IN CONTROL.
THE COMPANY AGREES THAT IF
THERE IS A CHANGE IN CONTROL OF THE COMPANY THEN, WITH RESPECT TO ALL MATTERS
THEREAFTER ARISING CONCERNING THE RIGHTS OF INDEMNITEES TO PAYMENTS OF EXPENSES
AND EXPENSE ADVANCES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR UNDER THE
COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS AS NOW OR HEREAFTER IN EFFECT,
INDEPENDENT LEGAL COUNSEL (AS DEFINED IN SECTION 9.4 HEREOF) SHALL BE SELECTED
BY THE COMPANY AND APPROVED BY THE INDEMNITEE (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
INDEMNITEE WOULD BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW AND,
SUBJECT TO THE OTHER PROVISIONS HEREOF, THE COMPANY AND INDEMNITEE AGREE TO
ABIDE BY SUCH OPINION.
THE COMPANY AGREES TO PAY THE REASONABLE FEES OF THE
INDEPENDENT LEGAL COUNSEL REFERRED TO ABOVE AND TO FULLY INDEMNIFY SUCH COUNSEL
AGAINST ANY AND ALL EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), CLAIMS,
LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS
ENGAGEMENT PURSUANT HERETO.
1.4
MANDATORY PAYMENT OF EXPENSES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE EXTENT THAT
INDEMNITEE HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE DISMISSAL OF AN ACTION WITHOUT PREJUDICE, IN DEFENSE OF ANY
ACTION, SUIT, PROCEEDING, INQUIRY OR INVESTIGATION REFERRED TO IN SECTION 1.1
HEREOF OR IN THE DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, INDEMNITEE SHALL
BE INDEMNIFIED AGAINST ALL EXPENSES INCURRED BY INDEMNITEE IN CONNECTION WITH
SUCH SUCCESSFUL CLAIMS, ISSUES OR MATTERS, BUT ONLY TO THE EXTENT PERMITTED TO
BE SO INDEMNIFIED UNDER APPLICABLE LAW (I.E., ONLY TO THE EXTENT SUCH EXPENSES
OR PORTIONS THEREOF ARE INDEMNIFIABLE PURSUANT TO THE APPLICABLE PROVISIONS OF
SECTION 145(A) OR (B) OF THE DGCL OR SUCCESSOR PROVISIONS).
2.
EXPENSES; INDEMNIFICATION PROCEDURE.
2.1
ADVANCEMENT OF EXPENSES.
THE COMPANY SHALL
ADVANCE ALL EXPENSES INCURRED BY INDEMNITEE.
THE ADVANCES TO BE MADE HEREUNDER
SHALL BE PAID BY THE COMPANY TO INDEMNITEE AS SOON AS PRACTICABLE BUT IN ANY
EVENT NO LATER THAN THIRTY (30) DAYS AFTER WRITTEN DEMAND BY INDEMNITEE THEREFOR
TO THE COMPANY.
SUCH DEMAND OR DEMANDS SHALL REASONABLY EVIDENCE THE EXPENSES
INCURRED BY INDEMNITEE AND SHALL INCLUDE OR BE PRECEDED OR ACCOMPANIED BY