and the mutual
agreements and covenants and provisions herein set forth, the parties hereto
hereby agree as follows:
1.
DEFINITIONS.
(A)
"AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, (I) ANY OTHER
PERSON DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL
WITH, SUCH PERSON (II) ANY PERSON DIRECTLY OR INDIRECTLY OWNING OR CONTROLLING
10% OR MORE OF ANY CLASS OF OUTSTANDING VOTING SECURITIES OF SUCH PERSON OR
(III) ANY OFFICER, DIRECTOR, GENERAL PARTNER OR TRUSTEE OF ANY SUCH PERSON
DESCRIBED IN CLAUSE (I) OR (II).
"CONTROL" OF ANY PERSON SHALL CONSIST OF THE
POWER TO DIRECT THE MANAGEMENT AND POLICIES OF SUCH PERSON (WHETHER THROUGH THE
OWNERSHIP OF VOTING SECURITIES, BY CONTRACT, AS TRUSTEE OR EXECUTOR, OR
OTHERWISE).
(B)
"CLAIM" MEANS, WITH RESPECT TO ANY INDEMNITEE, ANY CLAIM AGAINST
SUCH INDEMNITEE INVOLVING ANY OBLIGATION WITH RESPECT TO WHICH SUCH INDEMNITEE
MAY BE ENTITLED TO BE DEFENDED AND INDEMNIFIED BY ANY MEMBER OF THE COMPANY
GROUP UNDER THIS AGREEMENT.
(C)
"COMMISSION" MEANS THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR ANY SUCCESSOR ENTITY THERETO.
(D)
"COMPANY GROUP" MEANS THE COMPANY ENTITIES AND ANY OF THEIR
RESPECTIVE SUBSIDIARIES.
(E)
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
(F)
"INDEMNITEE" MEANS EACH OF MANAGER, THE FUND, THE OTHER
INVESTORS, MANAGER ASSOCIATES, THEIR RESPECTIVE AFFILIATES, THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS,
3
AND THE RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS,
ADVISORS, CONSULTANTS, REPRESENTATIVES AND CONTROLLING PERSONS (WITHIN THE
MEANING OF THE SECURITIES ACT) OF EACH OF THEM, OR OF THEIR PARTNERS, MEMBERS
AND CONTROLLING PERSONS, AND EACH OTHER PERSON WHO IS OR BECOMES A DIRECTOR OR
AN OFFICER OF ANY MEMBER OF THE COMPANY GROUP, IN EACH CASE IRRESPECTIVE OF THE
CAPACITY IN WHICH SUCH PERSON ACTS.
(G)
"OBLIGATIONS" MEANS, COLLECTIVELY, ANY AND ALL CLAIMS,
OBLIGATIONS, LIABILITIES, CAUSES OF ACTIONS, ACTIONS, SUITS, PROCEEDINGS,
INVESTIGATIONS, JUDGMENTS, DECREES, LOSSES, DAMAGES, FEES, COSTS AND EXPENSES
(INCLUDING WITHOUT LIMITATION INTEREST, PENALTIES AND FEES AND DISBURSEMENTS OF
ATTORNEYS, ACCOUNTANTS, INVESTMENT BANKERS AND OTHER PROFESSIONAL ADVISORS), IN
EACH CASE WHETHER INCURRED, ARISING OR EXISTING WITH RESPECT TO THIRD PARTIES OR
OTHERWISE AT ANY TIME OR FROM TIME TO TIME.
(H)
"PERSON" MEANS AN INDIVIDUAL, CORPORATION, LIMITED LIABILITY
COMPANY, LIMITED OR GENERAL PARTNERSHIP, TRUST OR OTHER ENTITY, INCLUDING A
GOVERNMENTAL OR POLITICAL SUBDIVISION OR AN AGENCY OR INSTRUMENTALITY THEREOF.
(I)
"RELATED DOCUMENT" MEANS ANY AGREEMENT, CERTIFICATE, INSTRUMENT
OR OTHER DOCUMENT TO WHICH ANY MEMBER OF THE COMPANY GROUP MAY BE A PARTY OR BY
WHICH IT OR ANY OF ITS PROPERTIES OR ASSETS MAY BE BOUND OR AFFECTED FROM TIME
TO TIME RELATING IN ANY WAY TO THE TRANSACTIONS OR ANY SECURITIES OFFERING OR
ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING WITHOUT LIMITATION, IN
EACH CASE AS THE SAME MAY BE AMENDED FROM TIME TO TIME, (I) ANY REGISTRATION
STATEMENT FILED BY OR ON BEHALF OF ANY MEMBER OF THE COMPANY GROUP WITH THE
COMMISSION IN CONNECTION WITH THE TRANSACTIONS OR ANY SECURITIES OFFERING,
INCLUDING ALL EXHIBITS, FINANCIAL STATEMENTS