TO SUCH AMENDMENT, ALTERATION, OR REPEAL.
TO
THE EXTENT THAT A CHANGE IN THE DGCL, WHETHER BY STATUTE OR JUDICIAL DECISION,
PERMITS GREATER INDEMNIFICATION THAN WOULD
9
BE AFFORDED CURRENTLY UNDER THE CERTIFICATE, THE BYLAWS, OR THIS AGREEMENT, IT
IS THE INTENT OF THE PARTIES TO THIS AGREEMENT THAT INDEMNITEE WILL ENJOY BY
THIS AGREEMENT THE GREATER BENEFITS SO AFFORDED BY SUCH CHANGE.
NO RIGHT
INDEPENDENTLY HELD BY OR IN THIS AGREEMENT CONFERRED UPON, INDEMNITEE IS
INTENDED TO BE EXCLUSIVE OF ANY OTHER RIGHT OR REMEDY, AND EVERY OTHER RIGHT AND
REMEDY WILL BE CUMULATIVE AND IN ADDITION TO EVERY OTHER RIGHT AND REMEDY GIVEN
UNDER THIS AGREEMENT OR NOW OR HEREAFTER EXISTING AT LAW OR IN EQUITY OR
OTHERWISE.
THE ASSERTION OR EMPLOYMENT OF ANY RIGHT OR REMEDY UNDER THIS
AGREEMENT, OR OTHERWISE, WILL NOT PREVENT THE CONCURRENT ASSERTION OR EMPLOYMENT
OF ANY OTHER RIGHT OR REMEDY.
(B)
THE COMPANY HEREBY COVENANTS AND AGREES
THAT, SO LONG AS INDEMNITEE SERVES IN A CORPORATE STATUS AND THEREAFTER SO LONG
AS INDEMNITEE MAY BE SUBJECT TO ANY POSSIBLE PROCEEDING BY REASON OF THE FACT
THAT INDEMNITEE SERVED IN A CORPORATE STATUS, THE COMPANY, SUBJECT TO
SECTION 8(D), WILL PROMPTLY OBTAIN AND MAINTAIN IN FULL FORCE AND EFFECT
LIABILITY INSURANCE TO PROTECT INDEMNITEE FROM PERSONAL LIABILITIES INCURRED BY
REASON OF THE FACT THAT INDEMNITEE IS OR WAS SERVING IN SUCH CAPACITY
("LIABILITY INSURANCE") IN REASONABLE AMOUNTS FROM ESTABLISHED AND REPUTABLE
INSURERS.
(C)
IN ALL APPLICABLE POLICIES OF LIABILITY
INSURANCE, INDEMNITEE WILL BE NAMED AS AN INSURED AND WILL BE COVERED BY SUCH
POLICIES IN ACCORDANCE WITH THEIR TERMS TO THE MAXIMUM EXTENT OF THE COVERAGE
AVAILABLE FOR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, OR FIDUCIARY UNDER SUCH
POLICY OR POLICIES.
(D)
NOTWITHSTANDING THE FOREGOING, THE COMPANY
WILL HAVE NO OBLIGATION TO OBTAIN OR MAINTAIN LIABILITY INSURANCE IF THE COMPANY
DETERMINES IN GOOD FAITH THAT SUCH INSURANCE IS NOT REASONABLY AVAILABLE, THE
PREMIUM COSTS FOR SUCH INSURANCE ARE MATERIALLY DISPROPORTIONATE TO THE AMOUNT
OF COVERAGE PROVIDED, THE COVERAGE PROVIDED BY SUCH INSURANCE IS LIMITED BY
EXCLUSIONS SO AS TO PROVIDE A MATERIALLY INSUFFICIENT BENEFIT, OR INDEMNITEE IS
COVERED BY SUBSTANTIALLY SIMILAR INSURANCE MAINTAINED BY A SUBSIDIARY OF THE
COMPANY OR BY ANOTHER PERSON PURSUANT TO A CONTRACTUAL OBLIGATION OWED TO THE
COMPANY.
(E)
FOLLOWING THE RECEIPT OF A NOTICE OF A
CLAIM PURSUANT TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL GIVE PROMPT
NOTICE OF THE COMMENCEMENT OF SUCH PROCEEDING TO THE INSURERS IN ACCORDANCE WITH
THE PROCEDURES SET FORTH IN THE RESPECTIVE POLICIES.
THE COMPANY WILL
THEREAFTER TAKE ALL NECESSARY OR DESIRABLE ACTION TO CAUSE SUCH INSURERS TO PAY,
ON BEHALF OF THE INDEMNITEE, ALL AMOUNTS PAYABLE AS A RESULT OF SUCH PROCEEDING
IN ACCORDANCE WITH THE TERMS OF SUCH POLICIES.
(F)
IN THE EVENT OF ANY PAYMENT UNDER THIS
AGREEMENT, THE COMPANY WILL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL
OF THE RIGHTS OF RECOVERY OF INDEMNITEE, WHO WILL EXECUTE ALL PAPERS REQUIRED
AND TAKE, AT THE