OR DEEMED RECEIPT OF ANY
PAYMENTS UNDER THIS AGREEMENT.
INSIGHT SHALL SELECT COUNSEL TO DEFEND
INDEMNITEE (WHICH DEFENSE COUNSEL SHALL BE REASONABLY SATISFACTORY TO
INDEMNITEE).
ANY WRITTEN REQUEST FOR INDEMNIFICATION SHALL INCLUDE SUFFICIENT
DOCUMENTATION OR INFORMATION REASONABLY AVAILABLE TO INDEMNITEE TO SUPPORT
INDEMNITEE'S CLAIM FOR INDEMNIFICATION.
THE PRESIDENT OR SECRETARY OR OTHER
APPROPRIATE OFFICER OF INSIGHT SHALL PROMPTLY, UPON RECEIPT OF INDEMNITEE'S
REQUEST FOR INDEMNIFICATION, ADVISE THE BOARD IN WRITING THAT INDEMNITEE HAS
MADE SUCH REQUEST.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
AND EXCEPT AS PROVIDED IN SECTION 2.03, INDEMNITEE SHALL NOT BE ENTITLED TO
INDEMNIFICATION PURSUANT TO THIS AGREEMENT IN CONNECTION WITH ANY PROCEEDING
INITIATED BY INDEMNITEE AGAINST INSIGHT OR ANY DIRECTOR, OFFICER OR KEY EMPLOYEE
OF INSIGHT, UNLESS INSIGHT HAS JOINED IN OR CONSENTED TO THE INITIATION OF SUCH
PROCEEDING.
IF SO REQUESTED BY INDEMNITEE, INSIGHT SHALL ADVANCE (WITHIN TEN
(10) BUSINESS DAYS OF SUCH REQUEST) ANY AND ALL EXPENSES TO INDEMNITEE (AN
"EXPENSE ADVANCE"); PROVIDED, HOWEVER, THAT SUCH EXPENSES SHALL BE ADVANCED ONLY
UPON DELIVERY TO INSIGHT OF AN UNDERTAKING BY OR ON BEHALF OF INDEMNITEE TO
REPAY SUCH AMOUNT IF IT IS ULTIMATELY DETERMINED THAT INDEMNITEE IS NOT ENTITLED
TO BE INDEMNIFIED BY INSIGHT.
FURTHER, NO INDEMNIFICATION SHALL BE MADE FOR THE
ACCOUNTING OF PROFITS MADE FROM THE PURCHASE OR SALE BY INDEMNITEE OF ANY
SECURITIES OF INSIGHT OR THE PARENT WITHIN THE MEANING OF SECTION 16(B) OF THE
EXCHANGE ACT OR SIMILAR PROVISION OF ANY STATE STATUTORY OR COMMON LAW.
(B)
NOTWITHSTANDING THE FOREGOING, (I) THE OBLIGATIONS OF INSIGHT UNDER
SECTION 2.01(A) SHALL BE SUBJECT TO THE CONDITION THAT THE REVIEWING PARTY SHALL
NOT HAVE DETERMINED (IN A WRITTEN OPINION, IN ANY CASE IN WHICH THE SPECIAL,
INDEPENDENT COUNSEL REFERRED TO IN SECTION 2.02 HEREOF IS INVOLVED) THAT
INDEMNITEE WOULD NOT BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW, AND
(II) THE OBLIGATION OF INSIGHT TO MAKE AN EXPENSE ADVANCE PURSUANT TO
SECTION 2.01(A) 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, INSIGHT SHALL BE ENTITLED
TO BE REIMBURSED BY INDEMNITEE (WHO HEREBY AGREES TO REIMBURSE INSIGHT) FOR ALL
SUCH AMOUNTS THERETOFORE PAID; PROVIDED, HOWEVER, THAT IF INDEMNITEE HAS
COMMENCED LEGAL PROCEEDINGS IN A COURT OF COMPETENT JURISDICTION TO
4
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 INSIGHT 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 HAVE LAPSED).
INDEMNITEE'S OBLIGATION TO REIMBURSE INSIGHT FOR EXPENSE ADVANCES SHALL BE
UNSECURED AND NO INTEREST SHALL BE CHARGED THEREON.
IF THERE HAS NOT BEEN A
CHANGE IN CONTROL, THE REVIEWING PARTY SHALL BE SELECTED BY THE INSIGHT BOARD,
AND