PROCEEDING UNDER
SECTION 11(A) ABOVE.
THE COMPANY SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT
OF INDEMNITEE, CONSENT TO THE ENTRY OF ANY JUDGMENT AGAINST INDEMNITEE OR ENTER
INTO ANY SETTLEMENT OR COMPROMISE WHICH (I) INCLUDES AN ADMISSION OF FAULT OF
INDEMNITEE OR (II) DOES NOT INCLUDE, AS AN UNCONDITIONAL TERM THEREOF, THE FULL
RELEASE OF INDEMNITEE FROM ALL LIABILITY IN RESPECT OF SUCH PROCEEDING, WHICH
RELEASE SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO INDEMNITEE.
THIS SECTION 11(B) SHALL NOT APPLY TO A PROCEEDING BROUGHT BY INDEMNITEE UNDER
SECTION 10(A) ABOVE OR PURSUANT TO SECTION 19 BELOW.
(C)
INDEMNITEE'S RIGHT TO COUNSEL.
NOTWITHSTANDING THE PROVISIONS OF SECTION 11(B) ABOVE, IF IN A PROCEEDING TO
WHICH INDEMNITEE IS A PARTY BY REASON OF INDEMNITEE'S CORPORATE STATUS,
(I) INDEMNITEE REASONABLY CONCLUDES THAT HE OR SHE MAY HAVE SEPARATE DEFENSES OR
COUNTERCLAIMS TO ASSERT WITH RESPECT TO ANY ISSUE WHICH MAY NOT BE CONSISTENT
WITH THE POSITION OF OTHER DEFENDANTS IN SUCH PROCEEDING, (II) A CONFLICT OF
INTEREST OR POTENTIAL CONFLICT OF INTEREST EXISTS BETWEEN INDEMNITEE AND THE
COMPANY, OR (III) IF THE COMPANY FAILS TO ASSUME THE
6
DEFENSE OF SUCH PROCEEDING IN A TIMELY MANNER, INDEMNITEE SHALL BE ENTITLED TO
BE REPRESENTED BY SEPARATE LEGAL COUNSEL OF INDEMNITEE'S CHOICE AT THE EXPENSE
OF THE COMPANY.
IN ADDITION, IF THE COMPANY FAILS TO COMPLY WITH ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR IN THE EVENT THAT THE COMPANY OR ANY OTHER
PERSON TAKES ANY ACTION TO DECLARE THIS AGREEMENT VOID OR UNENFORCEABLE, OR
INSTITUTES ANY ACTION, SUIT OR PROCEEDING TO DENY OR TO RECOVER FROM INDEMNITEE
THE BENEFITS INTENDED TO BE PROVIDED TO INDEMNITEE HEREUNDER, INDEMNITEE SHALL
HAVE THE RIGHT TO RETAIN COUNSEL OF INDEMNITEE'S CHOICE, AT THE EXPENSE OF THE
COMPANY, TO REPRESENT INDEMNITEE IN CONNECTION WITH ANY SUCH MATTER.
12.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO INDEMNITEE AS FOLLOWS:
(A)
AUTHORITY.
THE COMPANY HAS ALL NECESSARY
POWER AND AUTHORITY TO ENTER INTO, AND BE BOUND BY THE TERMS OF, THIS AGREEMENT,
AND THE EXECUTION, DELIVERY AND PERFORMANCE OF THE UNDERTAKINGS CONTEMPLATED BY
THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY THE COMPANY.
(B)
ENFORCEABILITY.
THIS AGREEMENT, WHEN
EXECUTED AND DELIVERED BY THE COMPANY IN ACCORDANCE WITH THE PROVISIONS HEREOF,
SHALL BE A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION
OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
13.
INSURANCE.
THE COMPANY SHALL, FROM TIME TO
TIME, MAKE THE GOOD FAITH DETERMINATION WHETHER OR NOT IT IS PRACTICABLE FOR THE
COMPANY TO OBTAIN AND MAINTAIN A POLICY OR POLICIES OF INSURANCE WITH A
REPUTABLE INSURANCE COMPANY PROVIDING THE INDEMNITEE WITH COVERAGE FOR LOSSES
FROM WRONGFUL ACTS.
FOR SO LONG AS INDEMNITEE SHALL REMAIN A CONSULTANT TO THE
COMPANY IN THE ROLE OF PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL ACCOUNTING
OFFICER AND WITH RESPECT TO ANY SUCH PRIOR SERVICE,