TO EXCEED FOUR YEARS FROM THE EFFECTIVE TIME) AS IS AVAILABLE FOR
AN AGGREGATE COST NOT TO EXCEED THE INSURANCE CAP.
(C)
IN FURTHERANCE OF AND NOT IN LIMITATION OF THE PRECEDING PARAGRAPH, NEWCO
AGREES THAT THE OFFICERS AND DIRECTORS OF THE COMPANY THAT ARE DEFENDANTS IN ALL
ACTIONS COMMENCED BY STOCKHOLDERS OF THE COMPANY WITH RESPECT TO (X) THE
PERFORMANCE OF THEIR DUTIES AS SUCH OFFICERS AND/OR DIRECTORS UNDER FEDERAL OR
STATE LAW (INCLUDING ACTIONS UNDER FEDERAL AND STATE SECURITIES LAWS) AND
(Y) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY AND ALL SUCH
ACTIONS COMMENCED ON OR AFTER THE DATE OF THIS AGREEMENT (THE "SUBJECT
LITIGATION") SHALL BE ENTITLED AS A GROUP TO BE REPRESENTED, AT THE REASONABLE
EXPENSE OF THE COMPANY OR THE SURVIVING CORPORATION, IN THE SUBJECT LITIGATION
BY ONE COUNSEL (AND DELAWARE COUNSEL IF APPROPRIATE AND ONE LOCAL COUNSEL IN
EACH JURISDICTION IN WHICH A CASE IS PENDING) EACH OF WHICH SUCH COUNSEL SHALL
BE SELECTED BY A PLURALITY OF SUCH OFFICER/DIRECTOR DEFENDANTS (AND REASONABLY
ACCEPTABLE TO THE SURVIVING CORPORATION AND, PRIOR TO THE EFFECTIVE TIME,
NEWCO); PROVIDED THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY SETTLEMENT
EFFECTED WITHOUT ITS PRIOR WRITTEN CONSENT (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD) AND THAT A CONDITION TO THE INDEMNIFICATION PAYMENTS
PROVIDED IN THIS SECTION 6.05 SHALL BE THAT SUCH OFFICER/DIRECTOR DEFENDANT NOT
HAVE SETTLED ANY SUBJECT LITIGATION WITHOUT THE CONSENT OF THE SURVIVING
CORPORATION (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD) AND, PRIOR TO THE
CLOSING, NEWCO; AND PROVIDED FURTHER THAT NEITHER NEWCO, THE COMPANY NOR THE
SURVIVING CORPORATION SHALL HAVE ANY OBLIGATION HEREUNDER TO ANY
OFFICER/DIRECTOR DEFENDANT WHEN AND IF A COURT OF COMPETENT JURISDICTION SHALL
ULTIMATELY DETERMINE, AND SUCH DETERMINATION SHALL HAVE BECOME FINAL AND
NON-APPEALABLE, THAT INDEMNIFICATION OF SUCH OFFICER/DIRECTOR DEFENDANT IN THE
MANNER CONTEMPLATED HEREBY IS PROHIBITED BY APPLICABLE LAW.
(D)
PRIOR TO THE EFFECTIVE TIME, THE COMPANY SHALL GIVE NEWCO THE OPPORTUNITY
TO PARTICIPATE IN THE DEFENSE OR SETTLEMENT OF ANY SECURITYHOLDER LITIGATION
AGAINST THE COMPANY AND/OR ITS DIRECTORS RELATING TO THIS AGREEMENT, THE MERGER
AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY, AND NO SETTLEMENT OR ANY SUCH
LITIGATION SHALL BE AGREED TO WITHOUT NEWCO'S PRIOR CONSENT (WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED).
SECTION 6.06.
REGULATORY APPROVALS AND OTHER MATTERS.
(A)
(A)
EACH PARTY
SHALL COOPERATE AND USE COMMERCIALLY REASONABLE EFFORTS TO PREPARE PROMPTLY AND
FILE ALL NECESSARY DOCUMENTATION, TO EFFECT ALL NECESSARY APPLICATIONS, NOTICES,
PETITIONS, FILINGS AND OTHER DOCUMENTS, AND TO USE COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN ALL NECESSARY APPROVALS FROM ANY GOVERNMENTAL AUTHORITY AND
ALL OTHER PERSONS NECESSARY OR ADVISABLE TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING THE REQUIRED APPROVALS; PROVIDED, HOWEVER, THAT
(I) NO PARTY SHALL BE OBLIGATED OR PERMITTED TO CONSENT TO ANY ACTION OR TO MAKE
OR OFFER TO MAKE ANY COMMITMENT OR UNDERTAKING OR INCUR ANY LIABILITY OR
OBLIGATION, OTHER THAN THOSE COMMITMENTS AND UNDERTAKINGS SET FORTH IN THIS
SECTION 6.06, WITHOUT THE CONSENT OF THE OTHER PARTY, WHICH CONSENT SHALL NOT BE