BE BORNE BY THE
COMPANY (IRRESPECTIVE OF THE DETERMINATION AS TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION) AND THE COMPANY SHALL INDEMNIFY AND HOLD INDEMNITEE HARMLESS
THEREFROM.
7
(H)
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 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, SUBJECT TO PRIOR APPROVAL OF THE COMPANY, WHICH SHALL NOT
BE UNREASONABLY WITHHELD, AT THE EXPENSE OF THE COMPANY (SUBJECT TO SECTION 13),
TO REPRESENT INDEMNITEE IN CONNECTION WITH ANY SUCH MATTER.
5.
SETTLEMENT.
THE COMPANY SHALL HAVE NO OBLIGATION TO INDEMNIFY
INDEMNITEE UNDER THIS AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM
EFFECTED WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT.
IF THE COMPANY HAS
ASSUMED THE DEFENSE OF ANY CLAIM AND THE INDEMNITEE IS NOT PARTICIPATING IN SUCH
DEFENSE WITH THE COMPANY, THE COMPANY SHALL NOT SETTLE ANY CLAIM IN WHICH IT
TAKES THE POSITION THAT INDEMNITEE IS NOT ENTITLED TO INDEMNIFICATION IN
CONNECTION WITH SUCH SETTLEMENT WITHOUT THE CONSENT OF INDEMNITEE, NOR SHALL THE
COMPANY SETTLE ANY CLAIM IN ANY MANNER WHICH WOULD IMPOSE ANY FINE OR ANY
OBLIGATION ON INDEMNITEE, WITHOUT INDEMNITEE'S WRITTEN CONSENT.
NEITHER THE
COMPANY NOR INDEMNITEE SHALL UNREASONABLY WITHHOLD ITS OR HIS CONSENT TO ANY
PROPOSED SETTLEMENT.
6.
CHANGE IN CONTROL; EXTRAORDINARY TRANSACTIONS.
(A)
THE COMPANY AND INDEMNITEE AGREE 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 ALL DETERMINATIONS THEREAFTER WITH RESPECT
TO THE RIGHTS OF INDEMNITEE TO BE PAID LOSSES AND EXPENSES UNDER THIS AGREEMENT
SHALL BE MADE ONLY BY INDEPENDENT COUNSEL.
THE COMPANY SHALL PAY THE REASONABLE
FEES OF SUCH INDEPENDENT COUNSEL AND SHALL INDEMNIFY SUCH INDEPENDENT COUNSEL
AGAINST ANY AND ALL REASONABLE EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES),
CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ITS ENGAGEMENT PURSUANT HERETO.
(B)
THE COMPANY SHALL REQUIRE AND CAUSE ANY SUCCESSOR (WHETHER DIRECT OR
INDIRECT BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL, SUBSTANTIALLY
ALL OR A SUBSTANTIAL PART, OF THE BUSINESS AND/OR ASSETS OF THE COMPANY, BY
WRITTEN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE, TO:
(I)
EXPRESSLY ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME
MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF
NO SUCH SUCCESSION HAD TAKEN PLACE; OR
(II)
OTHERWISE ADEQUATELY PROVIDE FOR THE SATISFACTION OF THE
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT, IN A MANNER REASONABLY ACCEPTABLE TO
THE INDEMNITEE.
7.
NO PRESUMPTION.
(A)
FOR PURPOSES OF THIS AGREEMENT, THE TERMINATION OF ANY CLAIM BY JUDGMENT,
ORDER, SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR