SECTION 303A.00 AND THE MAJORITY VOTE OF THE COMMON DIRECTORS
THEN IN OFFICE SHALL BE REQUIRED FOR THE BOARD OF DIRECTORS TO NOMINATE SUCH
CANDIDATE AND TO FILL SUCH VACANCY.
THE COMMON DIRECTORS SHALL NOMINATE SUCH
CANDIDATE AS PROMPTLY AS PRACTICABLE FOLLOWING SUCH RESIGNATION OR REMOVAL.
THE
COMPANY SHALL TAKE ALL SUCH ACTION NECESSARY OR REASONABLY REQUESTED BY THE
INVESTOR TO CAUSE THE RESIGNATION REQUIRED BY, OR TO OTHERWISE EFFECTUATE THE
PROVISIONS OF, THIS SECTION 3.1(D).
3.2
Directors and Officers Insurance.
(A)
FOR SO LONG AS ANY SERIES A DIRECTOR SERVES
ON THE COMPANY'S BOARD OF DIRECTORS AND FOR A PERIOD OF SIX YEARS AFTER THE DATE
ON WHICH THE SERIES A DIRECTORS CEASE TO SERVE ON THE COMPANY'S BOARD OF
DIRECTORS, THE COMPANY SHALL NOT AMEND, REPEAL OR OTHERWISE MODIFY ANY PROVISION
IN THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS (OR EQUIVALENT OR
9
RELATED GOVERNING DOCUMENTS) RELATING TO THE EXCULPATION OR INDEMNIFICATION OF
ANY OFFICERS AND/OR DIRECTORS IN ANY MANNER THAT WOULD ADVERSELY AFFECT, LIMIT
OR RESTRICT THE RIGHTS OF SUCH DIRECTORS AND/OR OFFICERS THEREUNDER, IT BEING
THE INTENT OF THE PARTIES THAT THE SERIES A DIRECTORS AND THE INDEPENDENT
DIRECTOR SHALL CONTINUE TO BE ENTITLED TO SUCH EXCULPATION AND INDEMNIFICATION
TO THE FULL EXTENT OF THE LAW.
FOR SO LONG AS ANY SERIES A DIRECTOR SERVES ON
THE COMPANY'S BOARD OF DIRECTORS, THE COMPANY SHALL CONTINUE IN EFFECT, AND TAKE
ALL OTHER REASONABLE ACTION NECESSARY TO MAINTAIN AND PROVIDE, "DIRECTORS AND
OFFICERS" INSURANCE WITH COVERAGE LEVELS AT LEAST AS GREAT AS THOSE IN EFFECT
IMMEDIATELY PRIOR TO THE CLOSING AND COVERING THE SERIES A DIRECTORS AND THE
INDEPENDENT DIRECTOR; PROVIDED, THAT COMPANY MAY ADJUST AND/OR REDUCE SUCH
COVERAGE LEVELS FROM TIME TO TIME WITH THE PRIOR APPROVAL OF A MAJORITY OF THE
SERIES A DIRECTORS.
ON THE DATE ON WHICH NO SERIES A DIRECTOR SERVES ON THE
COMPANY'S BOARD OF DIRECTORS, THE COMPANY SHALL OBTAIN AND FULLY PAY FOR A "RUN
OFF" INSURANCE POLICY OR POLICIES IN AN AGGREGATE AMOUNT EQUAL TO $25,000,000,
PROVIDING "SIDE A DIRECTORS AND OFFICERS" INSURANCE COVERAGE, INCLUSIVE OF A
DIFFERENCE-IN-CONDITIONS (DIC) COMPONENT, ABOVE AND BEYOND THE COMPANY'S
"DIRECTORS AND OFFICERS" INSURANCE IN PLACE ON SUCH DATE FOR THE SERIES A
DIRECTORS AND THE INDEPENDENT DIRECTOR WITH A CLAIMS PERIOD OF AT LEAST SIX
YEARS FROM SUCH DATE; PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT BE REQUIRED
TO PAY A PREMIUM FOR SUCH "RUN-OFF" INSURANCE POLICY IN EXCESS OF $300,000 (THE
"PREMIUM CAP") (IT BEING UNDERSTOOD AND AGREED THAT IN THE EVENT SUCH "RUN-OFF"
INSURANCE POLICY CANNOT BE OBTAINED FOR SUCH AMOUNT OR LESS, IN THE AGGREGATE,
(A) THE INVESTOR, IN ITS SOLE DISCRETION, MAY REQUIRE THE COMPANY TO PURCHASE
SUCH POLICY, IN WHICH CASE THE INVESTOR SHALL BE RESPONSIBLE FOR THE AMOUNT BY
WHICH THE PREMIUM FOR SUCH POLICY EXCEEDS THE PREMIUM CAP OR (B) IF THE INVESTOR
DOES NOT SO ELECT, THE COMPANY SHALL REMAIN OBLIGATED TO PROVIDE THE GREATEST
INSURANCE COVERAGE AS MAY BE OBTAINED FOR THE PREMIUM CAP);