PARTY SHALL HAVE REASONABLY CONCLUDED, BASED UPON THE ADVICE OF COUNSEL, THAT
THERE MAY BE ONE OR MORE LEGAL OR EQUITABLE DEFENSES AVAILABLE TO SUCH
INDEMNIFIED PARTY WHICH ARE ADDITIONAL TO OR CONFLICT WITH THOSE AVAILABLE TO
THE INDEMNIFYING PARTY, OR THAT SUCH CLAIM OR LITIGATION INVOLVES OR COULD HAVE
AN EFFECT UPON MATTERS BEYOND THE SCOPE OF THE INDEMNITY AGREEMENT PROVIDED IN
THIS SECTION VI, THE INDEMNIFYING PARTY SHALL NOT HAVE THE RIGHT TO ASSUME THE
DEFENSE OF SUCH ACTION ON BEHALF OF SUCH INDEMNIFIED PARTY AND SUCH INDEMNIFYING
PARTY SHALL REIMBURSE SUCH INDEMNIFIED PARTY AND ANY PERSON CONTROLLING SUCH
INDEMNIFIED PARTY FOR THAT PORTION OF THE FEES AND EXPENSES OF ANY ONE COUNSEL
RETAINED BY THE INDEMNIFIED PARTY WHICH IS REASONABLY RELATED TO THE MATTERS
COVERED BY THE INDEMNITY AGREEMENT PROVIDED IN THIS SECTION VI.
D.
IF THE INDEMNIFICATION PROVIDED FOR IN
THIS SECTION VI IS HELD BY A COURT OF COMPETENT JURISDICTION TO BE UNAVAILABLE
TO AN INDEMNIFIED PARTY WITH RESPECT TO ANY LOSS, CLAIM, DAMAGE, LIABILITY OR
ACTION REFERRED TO HEREIN, THEN THE INDEMNIFYING PARTY, IN LIEU OF INDEMNIFYING
SUCH INDEMNIFIED PARTY HEREUNDER, SHALL CONTRIBUTE TO THE AMOUNTS PAID OR
PAYABLE BY SUCH INDEMNIFIED PARTY AS A RESULT OF SUCH LOSS, CLAIM, DAMAGE,
LIABILITY OR ACTION IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE
FAULT OF THE INDEMNIFYING PARTY ON THE ONE HAND AND OF THE INDEMNIFIED PARTY ON
THE OTHER IN CONNECTION WITH THE STATEMENTS OR OMISSIONS WHICH RESULTED IN SUCH
LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION AS WELL AS ANY OTHER RELEVANT EQUITABLE
CONSIDERATIONS.
THE RELATIVE FAULT OF THE INDEMNIFYING PARTY AND OF THE
INDEMNIFIED PARTY SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER THINGS,
WHETHER THE UNTRUE OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT OR THE
OMISSION OR ALLEGED OMISSION TO STATE A MATERIAL FACT RELATES TO INFORMATION
SUPPLIED BY THE INDEMNIFYING PARTY OR BY THE INDEMNIFIED PARTY AND THE PARTIES'
RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR
PREVENT SUCH STATEMENT OR OMISSION.
SECTION VII.
INFORMATION BY HOLDER.
THE
STOCKHOLDER REPRESENTATIVE SHALL FURNISH TO THE CORPORATION SUCH WRITTEN
INFORMATION REGARDING THE HOLDERS AND THE DISTRIBUTION PROPOSED BY THE HOLDERS
AS THE CORPORATION MAY REASONABLY REQUEST IN WRITING AND AS SHALL BE REASONABLY
8
REQUIRED IN CONNECTION WITH ANY REGISTRATION, QUALIFICATION OR COMPLIANCE
REFERRED TO IN THIS AGREEMENT.
SECTION VIII.
TERMINATION.
THIS
AGREEMENT SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT ON THE EARLIER OF
(I) WHEN THERE SHALL NO LONGER BE ANY RESTRICTED SHARES OUTSTANDING OR (II) SUCH
TIME AS ALL OF SUCH REMAINING RESTRICTED SHARES MAY BE SOLD IN ACCORDANCE WITH
RULE 144.
SECTION IX.
SUCCESSORS AND
ASSIGNS.
SUBJECT TO THE PROVISIONS OF SECTION XI, THIS AGREEMENT SHALL BIND AND
INURE TO THE BENEFIT OF THE CORPORATION AND THE HOLDERS AND THE RESPECTIVE
SUCCESSORS AND ASSIGNS OF THE CORPORATION AND THE HOLDERS.
SECTION X.
ASSIGNMENT.
THE
RIGHTS GRANTED HEREUNDER MAY NOT BE ASSIGNED BY ANY HOLDER.
SECTION XI.
ENTIRE AGREEMENT.
THIS AGREEMENT