OF INTERESTS BETWEEN TWO OR MORE OF SUCH
INDEMNIFIED PARTIES, IN WHICH CASE THERE MAY BE SEPARATE COUNSEL FOR EACH
SIMILARLY SITUATED GROUP (WHICH COUNSEL SHALL BE REASONABLY ACCEPTABLE TO
SPINCO).
IN THE EVENT OF ANY ACTION, ANY INDEMNIFIED PARTY WISHING TO CLAIM
INDEMNIFICATION WILL PROMPTLY NOTIFY SPINCO THEREOF (PROVIDED, THAT FAILURE TO
SO NOTIFY SPINCO WILL NOT AFFECT THE OBLIGATIONS OF SPINCO EXCEPT TO THE EXTENT
THAT SPINCO SHALL HAVE BEEN MATERIALLY PREJUDICED AS A RESULT OF SUCH FAILURE).
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION 6.12 SHALL BE
DEEMED TO GRANT ANY RIGHT TO ANY INDEMNIFIED PARTY WHICH IS NOT PERMITTED TO BE
GRANTED TO AN OFFICER OR DIRECTOR OF SPINCO UNDER DELAWARE LAW, ASSUMING FOR
SUCH PURPOSES THAT SPINCO'S CERTIFICATE OF INCORPORATION AND BYLAWS PROVIDE FOR
THE MAXIMUM INDEMNIFICATION PERMITTED BY LAW.
(B)
WITHOUT LIMITING THE RIGHTS THAT ANY INDEMNIFIED PERSON MAY HAVE
UNDER APPLICABLE LAW, THE PARTIES AGREE THAT ALL RIGHTS OF INDEMNIFICATION
EXISTING AS OF THE DATE HEREOF AS PROVIDED IN THE RESPECTIVE CHARTER AND BYLAWS
OF THE COMPANY AND SPINCO SHALL SURVIVE THE MERGER AND SHALL CONTINUE IN FULL
FORCE AND EFFECT IN ACCORDANCE WITH THEIR TERMS.
(C)
FOR A PERIOD OF SIX YEARS FOLLOWING THE EFFECTIVE TIME, SPINCO
SHALL CAUSE TO BE MAINTAINED DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
POLICIES COVERING THE INDEMNIFIED PARTIES WHO ARE OR AT ANY TIME PRIOR TO THE
EFFECTIVE TIME WERE COVERED BY THE COMPANY'S EXISTING DIRECTORS' AND OFFICERS'
LIABILITY INSURANCE POLICIES ON TERMS SUBSTANTIALLY NO LESS ADVANTAGEOUS TO THE
INDEMNIFIED PARTIES THAN SUCH INSURANCE WITH RESPECT TO CLAIMS ARISING FROM
FACTS OR EVENTS THAT OCCURRED UP TO AND INCLUDING THE EFFECTIVE TIME TO THE
EXTENT AVAILABLE; PROVIDED, HOWEVER, THAT SPINCO MAY SUBSTITUTE THEREFOR
POLICIES OF AT LEAST THE SAME COVERAGE AND AMOUNTS CONTAINING TERMS AND
CONDITIONS THAT ARE NO LESS ADVANTAGEOUS TO THE COVERED PERSONS; PROVIDED
FURTHER, THAT SPINCO SHALL NOT BE REQUIRED TO PAY AN ANNUAL PREMIUM FOR SUCH
INSURANCE IN EXCESS OF 500% OF THE LAST ANNUAL PREMIUM PAID BY THE COMPANY PRIOR
TO THE DATE HEREOF AND, IF SUCH INSURANCE IS NOT AVAILABLE WITHIN SUCH LIMIT,
SPINCO SHALL BE REQUIRED TO OBTAIN ONLY SUCH INSURANCE AS IS AVAILABLE WITHIN
SUCH LIMIT.
(D)
THIS SECTION 6.12 IS INTENDED TO BE FOR THE BENEFIT OF, AND SHALL
BE ENFORCEABLE BY, THE INDEMNIFIED PARTIES, THEIR HEIRS AND PERSONAL
REPRESENTATIVES, AND SHALL BE BINDING ON SPINCO AND THE COMPANY AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
IN THE EVENT SPINCO OR THE COMPANY OR ANY OF
THEIR RESPECTIVE SUCCESSORS OR ASSIGNS (I) CONSOLIDATES WITH OR MERGES INTO ANY
OTHER PERSON AND SHALL NOT BE THE CONTINUING OR SURVIVING CORPORATION OR ENTITY
IN SUCH CONSOLIDATION OR MERGER OR (II) TRANSFERS ALL OR SUBSTANTIALLY ALL ITS
PROPERTIES AND ASSETS TO ANY PERSON, THEN, AND IN EACH CASE, PROPER PROVISION
SHALL BE MADE SO THAT THE SUCCESSORS AND ASSIGNS OF SPINCO OR THE COMPANY, AS
THE CASE MAY BE, HONOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS
SECTION 6.12.
Section 6.13
Rule