the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold under such registration statement that
is being sold by Indemnitee or (ii) the proceeds received by Indemnitee from its
sale of securities under such registration statement.
No person found guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
(D)
SURVIVAL REGARDLESS OF INVESTIGATION.
THE INDEMNIFICATION AND
CONTRIBUTION PROVIDED FOR HEREIN WILL REMAIN IN FULL FORCE AND EFFECT REGARDLESS
OF ANY INVESTIGATION MADE BY OR ON BEHALF OF INDEMNITEE OR ANY OFFICER,
DIRECTOR, EMPLOYEE, AGENT OR CONTROLLING PERSON OF INDEMNITEE.
(E)
CHANGE IN CONTROL.
AFTER THE DATE HEREOF, THE COMPANY AGREES THAT
IF THERE IS A CHANGE IN CONTROL OF THE COMPANY (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) THEN, WITH RESPECT
TO ALL MATTERS THEREAFTER ARISING CONCERNING THE RIGHTS OF INDEMNITEE TO
PAYMENTS OF EXPENSES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR UNDER THE
COMPANY'S CERTIFICATE OR BYLAWS AS NOW OR HEREAFTER IN EFFECT, INDEPENDENT LEGAL
COUNSEL (AS DEFINED IN SECTION 11(D) HEREOF) SHALL BE SELECTED BY INDEMNITEE AND
APPROVED BY THE COMPANY (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD).
SUCH COUNSEL, AMONG OTHER THINGS, SHALL RENDER ITS WRITTEN OPINION TO THE
COMPANY AND INDEMNITEE AS TO WHETHER AND TO WHAT EXTENT INDEMNITEE WOULD BE
PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW.
THE COMPANY AGREES TO ABIDE
BY SUCH OPINION AND TO PAY THE REASONABLE FEES OF THE INDEPENDENT LEGAL COUNSEL
REFERRED TO ABOVE AND TO FULLY INDEMNIFY SUCH COUNSEL AGAINST ANY AND ALL
REASONABLE EXPENSES (INCLUDING ATTORNEYS' FEES), CLAIMS, LIABILITIES AND DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
(F)
MANDATORY PAYMENT OF EXPENSES.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, TO THE EXTENT THAT INDEMNITEE HAS BEEN SUCCESSFUL
ON THE MERITS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE DISMISSAL OF AN
ACTION WITHOUT PREJUDICE, IN THE DEFENSE OF ANY ACTION, SUIT, PROCEEDING,
INQUIRY OR INVESTIGATION REFERRED TO IN SECTION 3(A) HEREOF OR IN THE DEFENSE OF
ANY CLAIM, ISSUE OR MATTER THEREIN, INDEMNITEE SHALL BE INDEMNIFIED AGAINST ALL
EXPENSES INCURRED BY INDEMNITEE IN CONNECTION HEREWITH.
4.
EXPENSES; INDEMNIFICATION PROCEDURE.
(A)
ADVANCEMENT OF EXPENSES.
THE COMPANY SHALL ADVANCE ALL EXPENSES
INCURRED BY INDEMNITEE.
THE ADVANCES TO BE MADE HEREUNDER SHALL BE PAID BY THE
COMPANY TO INDEMNITEE AS SOON AS PRACTICABLE BUT IN ANY EVENT NO LATER THAN
TWENTY FIVE BUSINESS DAYS AFTER WRITTEN DEMAND BY INDEMNITEE THEREFOR TO THE
COMPANY.
(B)
NOTICE/COOPERATION BY INDEMNITEE.
INDEMNITEE SHALL GIVE THE
COMPANY NOTICE IN WRITING IN ACCORDANCE WITH SECTION 15 OF THIS AGREEMENT AS
SOON AS PRACTICABLE OF ANY CLAIM MADE AGAINST INDEMNITEE FOR WHICH
INDEMNIFICATION WILL OR COULD BE SOUGHT UNDER THIS AGREEMENT.
4
(C)
NO PRESUMPTIONS; BURDEN OF