ANY
PENALTY OR LIMITATION ON INDEMNITEE OR INCLUDE AN ADMISSION OF FAULT BY
INDEMNITEE, WITHOUT INDEMNITEE'S WRITTEN CONSENT.
NEITHER THE COMPANY NOR THE
INDEMNITEE WILL UNREASONABLY WITHHOLD OR DELAY THEIR CONSENT TO ANY PROPOSED
SETTLEMENT.
THE COMPANY SHALL NOT BE LIABLE TO INDEMNIFY THE INDEMNITEE UNDER
THIS AGREEMENT WITH REGARD TO ANY JUDICIAL AWARD IF THE COMPANY WAS NOT GIVEN A
REASONABLE AND TIMELY OPPORTUNITY, AT ITS EXPENSE, TO PARTICIPATE IN THE DEFENSE
OF SUCH ACTION; THE COMPANY'S LIABILITY
7
HEREUNDER SHALL NOT BE EXCUSED IF PARTICIPATION IN THE PROCEEDING BY THE COMPANY
WAS BARRED BY THIS AGREEMENT.
7.
NON-EXCLUSIVITY.
THE PROVISIONS FOR INDEMNIFICATION AND
ADVANCEMENT OF EXPENSES SET FORTH IN THIS AGREEMENT SHALL NOT BE DEEMED
EXCLUSIVE OF ANY OTHER RIGHTS WHICH THE INDEMNITEE MAY HAVE UNDER ANY PROVISION
OF LAW, THE CERTIFICATE OR THE BYLAWS, A VOTE OF THE COMPANY'S STOCKHOLDERS OR
DISINTERESTED DIRECTORS, ANY OTHER AGREEMENT, OR OTHERWISE, BOTH AS TO ACTIONS
IN HIS OFFICIAL CAPACITY AND TO ACTIONS IN ANOTHER CAPACITY WHILE OCCUPYING HIS
POSITION AS AN AGENT OF THE COMPANY, AND THE INDEMNITEE'S RIGHTS HEREUNDER SHALL
CONTINUE AFTER THE INDEMNITEE HAS CEASED ACTING AS AN AGENT OF THE COMPANY AND
SHALL INURE TO THE BENEFIT OF THE HEIRS, EXECUTORS AND ADMINISTRATORS OF THE
INDEMNITEE.
8.
LIABILITY INSURANCE.
THE COMPANY SHALL (A)
MAINTAIN IN EFFECT
DIRECTORS' AND OFFICERS' INSURANCE POLICIES AND FIDUCIARY LIABILITY INSURANCE
POLICIES (COLLECTIVELY, "D&O INSURANCE POLICIES") WITH TERMS, CONDITIONS,
RETENTIONS AND LIMITS OF LIABILITY THAT ARE AT LEAST AS FAVORABLE AS THOSE
CONTAINED IN THE COMPANY'S D&O INSURANCE POLICIES IN EFFECT AS OF THE DATE
HEREOF (D&O INSURANCE POLICIES CONTAINING SUCH TERMS, CONDITIONS, RETENTIONS AND
LIMITS OF LIABILITY, REFERRED TO HEREIN AS "COMPARABLE D&O INSURANCE POLICIES"),
AND, FOR SO LONG AS INDEMNITEE SERVES AS A DIRECTOR OF THE COMPANY AND FOR A
PERIOD OF SIX (6) YEARS THEREAFTER, TO CAUSE INDEMNITEE TO BE COVERED UNDER SUCH
COMPARABLE D&O INSURANCE POLICIES IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, AND
(B) FOR A PERIOD OF NOT LESS THAN SIX (6) YEARS FOLLOWING THE OCCURRENCE OF
(I) A CHANGE IN CONTROL OR (II) THE COMPANY CEASING TO OPERATE ITS BUSINESS AS A
GOING CONCERN, TO MAINTAIN IN EFFECT COMPARABLE D&O INSURANCE POLICIES, AND,
UNTIL THE EARLIER OF (X) SUCH TIME AS THE COMPANY IS NO LONGER REQUIRED TO
MAINTAIN SUCH COMPARABLE D&O INSURANCE POLICIES PURSUANT TO THIS CLAUSE (B) OR
(Y) THE SIXTH (6TH) ANNIVERSARY OF INDEMNITEE CEASING TO SERVE AS A DIRECTOR OF
THE COMPANY, TO CAUSE INDEMNITEE TO BE COVERED UNDER SUCH COMPARABLE D&O
INSURANCE POLICIES IN ACCORDANCE WITH THEIR RESPECTIVE TERMS; PROVIDED, HOWEVER,
THAT IN NO EVENT SHALL THE COMPANY BE REQUIRED TO EXPEND IN ANY ONE YEAR AN
AMOUNT IN EXCESS OF 200% OF THE ANNUAL PREMIUMS CURRENTLY PAID BY THE COMPANY
FOR ITS D&O INSURANCE POLICIES; PROVIDED, FURTHER, THAT IF DURING THE SPECIFIED
PERIOD THE ANNUAL PREMIUMS FOR COMPARABLE D&O INSURANCE POLICIES EXCEED SUCH
AMOUNT, THE COMPANY SHALL PROVIDE A D&O INSURANCE POLICY WHICH, IN THE
REASONABLE JUDGMENT OF THE COMPANY,