WITHOUT LIMITATION, ANY AND ALL
LOSSES, CLAIMS, DAMAGES, EXPENSES AND LIABILITIES, JOINT OR SEVERAL (INCLUDING
ANY INVESTIGATION, LEGAL AND OTHER EXPENSES INCURRED IN CONNECTION WITH, AND ANY
AMOUNT PAID IN SETTLEMENT OF, ANY ACTION, SUIT, PROCEEDING OR ANY CLAIM
ASSERTED) UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR OTHER FEDERAL OR STATE
STATUTORY LAW OR REGULATION, AT COMMON LAW OR OTHERWISE, THAT RELATE DIRECTLY OR
INDIRECTLY TO THE REGISTRATION, PURCHASE, SALE OR OWNERSHIP OF ANY SECURITIES OF
THE COMPANY OR TO ANY FIDUCIARY OBLIGATION OWED WITH RESPECT THERETO
2
(HEREINAFTER AN "INDEMNIFICATION EVENT").
SUCH PAYMENT OF EXPENSES SHALL BE
MADE BY THE COMPANY AS SOON AS PRACTICABLE BUT IN ANY EVENT NO LATER THAN 25
DAYS AFTER WRITTEN DEMAND BY INDEMNITEE THEREFOR IS PRESENTED TO THE COMPANY.
(B)
REVIEWING PARTY.
NOTWITHSTANDING THE FOREGOING, (I) THE
OBLIGATIONS OF THE COMPANY UNDER SECTION 2 SHALL BE SUBJECT TO THE CONDITION
THAT THE REVIEWING PARTY (AS DESCRIBED IN SECTION 11(E) HEREOF) SHALL NOT HAVE
DETERMINED (IN A WRITTEN OPINION, IN ANY CASE IN WHICH THE INDEPENDENT LEGAL
COUNSEL AS DEFINED IN SECTION 11(D) HEREOF IS INVOLVED) THAT INDEMNITEE WOULD
NOT BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW, AND (II) AND INDEMNITEE
ACKNOWLEDGES AND AGREES THAT THE OBLIGATION OF THE COMPANY TO MAKE AN ADVANCE
PAYMENT OF EXPENSES TO INDEMNITEE PURSUANT TO SECTION 4(A) (AN "EXPENSE
ADVANCE") SHALL BE SUBJECT TO THE CONDITION THAT, IF, WHEN AND TO THE EXTENT
THAT THE REVIEWING PARTY DETERMINES THAT INDEMNITEE WOULD NOT BE PERMITTED TO BE
SO INDEMNIFIED UNDER APPLICABLE LAW, THE COMPANY SHALL BE ENTITLED TO BE
REIMBURSED BY INDEMNITEE (WHO HEREBY AGREES TO REIMBURSE THE COMPANY) FOR SUCH
EXPENSE ADVANCE; PROVIDED, HOWEVER, THAT IF INDEMNITEE HAS COMMENCED OR
THEREAFTER COMMENCES LEGAL PROCEEDINGS IN A COURT OF COMPETENT JURISDICTION TO
SECURE A DETERMINATION THAT INDEMNITEE SHOULD BE INDEMNIFIED UNDER APPLICABLE
LAW, ANY DETERMINATION MADE BY THE REVIEWING PARTY THAT INDEMNITEE WOULD NOT BE
PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW SHALL NOT BE BINDING AND
INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE THE COMPANY FOR ANY EXPENSE
ADVANCE UNTIL A FINAL JUDICIAL DETERMINATION IS MADE WITH RESPECT THERETO (AS TO
WHICH ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN EXHAUSTED OR LAPSED) AND UNTIL
SUCH TIME, INDEMNITEE SHALL BE ENTITLED TO RECEIVE INTERIM PAYMENTS OF EXPENSES
PURSUANT TO SECTION 3(A).
INDEMNITEE'S OBLIGATION TO REIMBURSE THE COMPANY FOR
ANY EXPENSE ADVANCE SHALL BE UNSECURED AND NO INTEREST SHALL BE CHARGED
THEREON.
IF THERE HAS NOT BEEN A CHANGE IN CONTROL (AS DEFINED IN
SECTION 11(C) HEREOF), THE REVIEWING PARTY SHALL BE SELECTED BY THE BOARD OF
DIRECTORS, AND IF THERE HAS BEEN SUCH A CHANGE IN CONTROL (OTHER THAN A CHANGE
IN CONTROL THAT HAS BEEN APPROVED BY A MAJORITY OF THE COMPANY'S BOARD OF
DIRECTORS WHO WERE DIRECTORS IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL), THE
REVIEWING PARTY SHALL BE THE INDEPENDENT LEGAL COUNSEL REFERRED TO IN
SECTION 3(E) HEREOF.
IF THERE HAS BEEN NO DETERMINATION BY THE REVIEWING PARTY
OR IF THE REVIEWING PARTY