fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
(D)
SURVIVAL REGARDLESS OF INVESTIGATION.
THE
INDEMNIFICATION AND CONTRIBUTION PROVIDED FOR HEREIN WILL REMAIN IN FULL FORCE
AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF INDEMNITEE OR
ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR CONTROLLING PERSON OF INDEMNITEE.
(E)
CHANGE IN CONTROL.
AFTER THE DATE HEREOF,
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 PAYMENTS OF EXPENSES UNDER THIS AGREEMENT OR ANY OTHER
AGREEMENT OR UNDER THE COMPANY'S CERTIFICATE OR BYLAWS AS NOW OR HEREAFTER IN
EFFECT, INDEPENDENT LEGAL COUNSEL (AS DEFINED IN SECTION 11(D) HEREOF) SHALL BE
SELECTED BY INDEMNITEE 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
INDEMNITEE WOULD BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW.
THE
COMPANY AGREES TO ABIDE BY SUCH OPINION AND TO PAY THE REASONABLE FEES OF THE
INDEPENDENT LEGAL COUNSEL
4
REFERRED TO ABOVE AND TO FULLY INDEMNIFY SUCH COUNSEL AGAINST ANY AND ALL
REASONABLE EXPENSES (INCLUDING ATTORNEYS' FEES), CLAIMS, LIABILITIES AND DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
(F)
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 THE DEFENSE OF ANY
ACTION, SUIT, PROCEEDING, INQUIRY OR INVESTIGATION REFERRED TO IN SECTION 3(A)
HEREOF OR IN THE DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, INDEMNITEE SHALL
BE INDEMNIFIED AGAINST ALL EXPENSES INCURRED BY INDEMNITEE IN CONNECTION
HEREWITH.
4.
Expenses; Indemnification Procedure.
(A)
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 TEN (10) BUSINESS DAYS AFTER WRITTEN DEMAND BY INDEMNITEE
THEREFOR TO THE COMPANY.
(B)
NOTICE/COOPERATION BY INDEMNITEE.
INDEMNITEE SHALL GIVE THE COMPANY NOTICE IN WRITING IN ACCORDANCE WITH
SECTION 15 OF THIS AGREEMENT AS SOON AS PRACTICABLE OF ANY CLAIM MADE AGAINST
INDEMNITEE FOR WHICH INDEMNIFICATION WILL OR COULD BE SOUGHT UNDER THIS
AGREEMENT.
(C)
NO PRESUMPTIONS; BURDEN OF PROOF.
FOR
PURPOSES OF THIS AGREEMENT, THE TERMINATION OF ANY CLAIM BY JUDGMENT, ORDER,
SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR UPON A
PLEA OF NOLO CONTENDERE, OR ITS EQUIVALENT, SHALL NOT CREATE A PRESUMPTION THAT
INDEMNITEE DID NOT MEET ANY PARTICULAR STANDARD OF CONDUCT OR HAVE ANY