Acquiror evidence satisfactory to Acquiror of the
resignation of all directors of the Company effective at the Effective Time.
6.6.
Rule 16b-3.
Prior to the Effective Time, the Company shall take
such steps as may be reasonably necessary to cause dispositions of Equity
Interests of the Company (including derivative securities) pursuant to the
transactions contemplated by this Agreement by each individual who is a director
or officer of the Company to be exempted under Rule 16b-3 promulgated under the
Exchange Act in accordance with that certain No-Action Letter dated January 12,
1999 issued by the SEC regarding such matters.
ARTICLE 7
COVENANTS OF PARENT AND ACQUIROR
Each of Parent and Acquiror agrees as set forth below.
7.1.
DIRECTOR AND OFFICER LIABILITY.
(A)
PARENT, ACQUIROR AND THE SURVIVING CORPORATION AGREE THAT THE
SURVIVING CORPORATION SHALL ADOPT ON OR PRIOR TO THE EFFECTIVE TIME, IN ITS
CERTIFICATE OF INCORPORATION AND BY-LAWS, THE SAME INDEMNIFICATION, LIMITATION
OF OR EXCULPATION FROM LIABILITY AND EXPENSE ADVANCEMENT PROVISIONS AS THOSE SET
FORTH IN THE COMPANY'S CERTIFICATE OF
53
INCORPORATION AND BY-LAWS, IN EACH CASE AS OF THE DATE OF THIS AGREEMENT, AND
THAT SUCH PROVISIONS SHALL NOT BE AMENDED, REPEALED, REVOKED OR OTHERWISE
MODIFIED FOR A PERIOD OF SIX (6) YEARS AFTER THE EFFECTIVE TIME IN ANY MANNER
THAT WOULD ADVERSELY AFFECT THE RIGHTS THEREUNDER OF THE INDIVIDUALS WHO ON OR
PRIOR TO THE EFFECTIVE TIME WERE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OF THE
COMPANY OR ANY COMPANY SUBSIDIARY OR ARE OTHERWISE ENTITLED TO THE BENEFIT OF
SUCH PROVISIONS, UNLESS SUCH MODIFICATION IS REQUIRED AFTER THE EFFECTIVE TIME
BY APPLICABLE LAW.
(B)
WITHOUT LIMITING ANY ADDITIONAL RIGHTS THAT ANY INDEMNIFIED PARTY
(AS DEFINED BELOW) MAY HAVE PURSUANT TO ANY EMPLOYMENT AGREEMENT,
INDEMNIFICATION AGREEMENT OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, COMMENCING AT THE EFFECTIVE TIME, PARENT AND THE SURVIVING
CORPORATION SHALL JOINTLY AND SEVERALLY INDEMNIFY, DEFEND AND HOLD HARMLESS,
EACH PRESENT (AS OF IMMEDIATELY PRIOR TO THE EFFECTIVE TIME) AND FORMER
DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY AND EACH COMPANY SUBSIDIARY AND
THEIR RESPECTIVE ESTATES, HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND
ASSIGNS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") AGAINST ALL COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' AND OTHER PROFESSIONALS' FEES AND EXPENSES),
JUDGMENTS, FINES, LOSSES, CLAIMS, DAMAGES, LIABILITIES AND SETTLEMENT AMOUNTS
PAID IN CONNECTION WITH ANY CLAIM (WHETHER ASSERTED PRIOR TO, AT OR AFTER THE
EFFECTIVE TIME) ARISING OUT OF OR PERTAINING TO ANY ACTION OR INACTION IN THEIR
CAPACITY AS DIRECTOR OR OFFICER OF THE COMPANY OR ANY COMPANY SUBSIDIARY OR
THEIR SERVING AT THE REQUEST OF THE COMPANY OR ANY COMPANY SUBSIDIARY AS A
DIRECTOR, OFFICER, EMPLOYEE, AGENT, TRUSTEE, SHAREHOLDER, PARTNER OR FIDUCIARY
OF ANOTHER PERSON, PENSION OR OTHER EMPLOYEE BENEFIT PLAN OR ENTERPRISE IN EACH
CASE OCCURRING ON OR BEFORE THE EFFECTIVE TIME (INCLUDING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT).
WITHOUT LIMITING THE FOREGOING, IN THE EVENT
OF ANY CLAIM, (I) PARENT AND THE SURVIVING CORPORATION SHALL, JOINTLY AND
SEVERALLY, (X) PERIODICALLY ADVANCE REASONABLE FEES AND EXPENSES (INCLUDING
ATTORNEYS' AND OTHER