PROFESSIONALS' FEES AND EXPENSES) WITH RESPECT TO THE
FOREGOING AND PAY THE REASONABLE FEES AND EXPENSES OF COUNSEL SELECTED BY EACH
INDEMNIFIED PARTY, PROMPTLY AFTER STATEMENTS THEREFOR ARE RECEIVED, PROVIDED
THAT THE INDEMNIFIED PARTY TO WHOM FEES AND EXPENSES ARE ADVANCED OR FOR WHICH
FEES AND EXPENSES OF COUNSEL ARE PAID PROVIDES AN UNDERTAKING TO REPAY SUCH
ADVANCES AND PAYMENTS IF IT IS ULTIMATELY DETERMINED THAT SUCH INDEMNIFIED PARTY
IS NOT ENTITLED TO INDEMNIFICATION, AND (Y) VIGOROUSLY ASSIST EACH INDEMNIFIED
PARTY IN SUCH DEFENSE, AND (II) SUBJECT TO THE TERMS OF THIS SECTION 7.1, PARENT
AND THE SURVIVING CORPORATION SHALL COOPERATE IN THE DEFENSE OF ANY MATTER.
IF
ANY CLAIM IS COMMENCED AS TO WHICH AN INDEMNIFIED PARTY DESIRES TO RECEIVE
INDEMNIFICATION, SUCH INDEMNIFIED PARTY SHALL NOTIFY THE SURVIVING CORPORATION
WITH REASONABLE PROMPTNESS; PROVIDED, HOWEVER, THAT FAILURE TO GIVE REASONABLY
PROMPT NOTICE TO THE SURVIVING CORPORATION SHALL NOT AFFECT THE INDEMNIFICATION
OBLIGATIONS OF PARENT AND THE SURVIVING CORPORATION HEREUNDER EXCEPT TO THE
EXTENT THAT THE FAILURE TO SO NOTIFY HAS ACTUALLY AND MATERIALLY PREJUDICED
PARENT AND THE SURVIVING CORPORATION IN SUCH CLAIM.
THE INDEMNIFIED PARTY SHALL
HAVE THE RIGHT TO RETAIN COUNSEL OF SUCH INDEMNIFIED PARTY'S OWN CHOICE TO
REPRESENT SUCH PERSON; AND SUCH COUNSEL SHALL, TO THE EXTENT CONSISTENT WITH ITS
PROFESSIONAL RESPONSIBILITIES, REASONABLY COOPERATE WITH THE SURVIVING
CORPORATION AND ANY COUNSEL DESIGNATED BY THE SURVIVING CORPORATION.
PARENT AND
THE SURVIVING CORPORATION SHALL BE LIABLE ONLY FOR ANY SETTLEMENT OF ANY CLAIM
AGAINST AN INDEMNIFIED PARTY MADE WITH PARENT OR SURVIVING CORPORATION'S WRITTEN
CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED.
PARENT AND THE SURVIVING CORPORATION SHALL NOT, WITHOUT THE PRIOR
WRITTEN CONSENT OF AN INDEMNIFIED PARTY, SETTLE OR COMPROMISE ANY CLAIM, OR
PERMIT A DEFAULT OR CONSENT TO THE ENTRY OF ANY JUDGMENT IN RESPECT THEREOF,
UNLESS SUCH SETTLEMENT, COMPROMISE OR CONSENT INCLUDES, AS AN UNCONDITIONAL TERM
THEREOF, THE GIVING BY THE CLAIMANT TO SUCH INDEMNIFIED PARTY OF AN
54
UNCONDITIONAL RELEASE FROM ALL LIABILITY AND OBLIGATIONS (CIVIL OR CRIMINAL OR
MONETARY OR OTHERWISE) IN RESPECT OF SUCH CLAIM.
(C)
PARENT AGREES THAT THE COMPANY WILL CAUSE TO BE PUT IN PLACE
IMMEDIATELY PRIOR TO THE EFFECTIVE TIME "TAIL" INSURANCE POLICIES WITH A CLAIMS
PERIOD OF AT LEAST SIX YEARS FROM THE EFFECTIVE TIME FROM AN INSURANCE CARRIER
WITH THE SAME OR BETTER CREDIT RATING AS THE COMPANY'S CURRENT INSURANCE CARRIER
WITH RESPECT TO DIRECTORS' AND OFFICERS' LIABILITY INSURANCE IN AN AMOUNT AND
SCOPE NO MORE FAVORABLE THAN THE COMPANY'S EXISTING POLICIES AS IN EFFECT AS OF
THE DATE HEREOF WITH RESPECT TO MATTERS EXISTING OR OCCURRING AT OR PRIOR TO THE
EFFECTIVE TIME.
(D)
ALL RIGHTS TO INDEMNIFICATION AND/OR ADVANCEMENT OF EXPENSES
CONTAINED IN ANY AGREEMENT WITH ANY INDEMNIFIED PARTIES AS IN EFFECT ON THE DATE
HEREOF WITH RESPECT TO MATTERS OCCURRING ON OR PRIOR TO THE EFFECTIVE TIME
(INCLUDING THE TRANSACTIONS CONTEMPLATED HEREBY) SHALL SURVIVE THE MERGER AND
CONTINUE IN FULL FORCE AND EFFECT.
PARENT AND THE SURVIVING CORPORATION SHALL
INDEMNIFY ANY