TO INDEMNIFY OR ADVANCE TO INDEMNITEE ANY ADDITIONAL AMOUNTS
COVERED BY SUCH REVIEWING PARTY DETERMINATION (UNLESS THERE HAS BEEN A
DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT THE INDEMNITEE WOULD BE
PERMITTED TO BE SO INDEMNIFIED UNDER APPLICABLE LAW);
(B)
THE COMPANY SHALL NOT BE REQUIRED TO
INDEMNIFY OR ADVANCE EXPENSES TO THE INDEMNITEE WITH RESPECT TO A PROCEEDING (OR
PART THEREOF) BY THE INDEMNITEE (AND NOT BY WAY OF DEFENSE), EXCEPT IF THE
COMMENCEMENT OF SUCH PROCEEDING (I) WAS AUTHORIZED IN THE SPECIFIC CASE BY THE
BOARD OF DIRECTORS OR (II) BROUGHT TO ESTABLISH OR ENFORCE A RIGHT TO
INDEMNIFICATION AND/OR ADVANCEMENT OF EXPENSES ARISING UNDER THIS AGREEMENT, THE
CERTIFICATE OF INCORPORATION, THE BY-LAWS, THE DGCL OR OTHERWISE;
(C)
THE COMPANY SHALL NOT BE OBLIGATED PURSUANT
TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY THE INDEMNITEE FOR ANY AMOUNTS PAID
IN SETTLEMENT OF A PROCEEDING UNLESS THE COMPANY CONSENTS IN ADVANCE IN WRITING
TO SUCH SETTLEMENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD;
(D)
THE COMPANY SHALL NOT BE OBLIGATED PURSUANT
TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY THE INDEMNITEE ON ACCOUNT OF ANY
SUIT IN WHICH JUDGMENT IS RENDERED AGAINST THE INDEMNITEE FOR AN ACCOUNTING OF
PROFITS MADE FROM THE PURCHASE OR SALE BY THE INDEMNITEE OF SECURITIES OF THE
COMPANY PURSUANT TO THE PROVISIONS OF SECTION L6(B) OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED OR SIMILAR PROVISIONS OF ANY FEDERAL, STATE OR LOCAL
STATUTORY LAW;
(E)
THE COMPANY SHALL NOT BE OBLIGATED PURSUANT
TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY THE INDEMNITEE IF A FINAL DECISION
BY A COURT HAVING JURISDICTION IN THE MATTER SHALL DETERMINE THAT SUCH
INDEMNIFICATION IS NOT LAWFUL; AND
(F)
THE COMPANY SHALL NOT BE OBLIGATED
PURSUANT TO THE TERMS OF THIS AGREEMENT TO MAKE ANY PAYMENT IN CONNECTION WITH
ANY PROCEEDING TO THE EXTENT INDEMNITEE HAS
5
OTHERWISE ACTUALLY RECEIVED PAYMENT (UNDER ANY INSURANCE POLICY OR OTHERWISE) OF
THE AMOUNTS OTHERWISE INDEMNIFIABLE UNDER THIS AGREEMENT.
5.
CHANGE IN CONTROL OF COMPANY.
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 INDEMNITEE TO
INDEMNITY PAYMENTS AND EXPENSE ADVANCES UNDER THIS AGREEMENT, ANY OTHER
AGREEMENTS, THE CERTIFICATE OF INCORPORATION OR THE BY-LAWS NOW OR HEREAFTER IN
EFFECT RELATING TO PROCEEDINGS FOR INDEMNIFIABLE EVENTS, THE COMPANY SHALL SEEK
LEGAL ADVICE ONLY FROM SPECIAL INDEPENDENT COUNSEL SELECTED BY INDEMNITEE AND
APPROVED BY THE COMPANY'S BOARD OF DIRECTORS (WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD), AND WHO HAS NOT OTHERWISE PERFORMED SERVICES FOR THE
COMPANY (OTHER THAN IN CONNECTION WITH SUCH MATTERS) OR INDEMNITEE.
WITHOUT
LIMITING THE COMPANY'S OBLIGATION NOT TO UNREASONABLY WITHHOLD ITS CONSENT, IN
THE EVENT THAT INDEMNITEE AND THE COMPANY ARE UNABLE TO AGREE ON THE SELECTION
OF THE SPECIAL INDEPENDENT COUNSEL, SUCH SPECIAL INDEPENDENT COUNSEL SHALL BE
SELECTED BY LOT FROM AMONG AT LEAST FIVE NATIONALLY RECOGNIZED LAW FIRMS EACH IN
NEW YORK CITY, NEW YORK, EACH HAVING NO LESS