OF PERSUASION, BY CLEAR AND CONVINCING EVIDENCE.
SECTION 1.10.
NON-EXCLUSIVITY. THE RIGHTS OF INDEMNITEE HEREUNDER WILL BE
IN ADDITION TO ANY OTHER RIGHTS INDEMNITEE MAY HAVE UNDER THE GOVERNANCE
DOCUMENTS, OR THE SUBSTANTIVE LAWS OF THE COMPANY'S JURISDICTION OF
INCORPORATION, ANY OTHER CONTRACT OR OTHERWISE (COLLECTIVELY, "OTHER INDEMNITY
PROVISIONS"); PROVIDED, HOWEVER, THAT (A) TO THE EXTENT THAT INDEMNITEE
OTHERWISE WOULD HAVE ANY GREATER RIGHT TO INDEMNIFICATION UNDER ANY OTHER
INDEMNITY PROVISION, INDEMNITEE WILL BE DEEMED TO HAVE SUCH GREATER RIGHT
HEREUNDER AND (B) TO THE EXTENT THAT ANY CHANGE IS MADE TO ANY OTHER INDEMNITY
PROVISION WHICH PERMITS ANY GREATER RIGHT TO INDEMNIFICATION THAN THAT PROVIDED
UNDER THIS AGREEMENT AS OF THE DATE HEREOF, INDEMNITEE WILL BE DEEMED TO HAVE
SUCH GREATER RIGHT HEREUNDER. THE COMPANY WILL NOT ADOPT ANY AMENDMENT TO ANY OF
THE GOVERNANCE DOCUMENTS THE EFFECT OF WHICH WOULD BE TO DENY, DIMINISH OR
ENCUMBER INDEMNITEE'S RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER
INDEMNITY PROVISION.
SECTION 1.11.
LIABILITY INSURANCE AND FUNDING. FOR THE DURATION OF
INDEMNITEE'S SERVICE AS A DIRECTOR AND/OR OFFICER OF THE COMPANY, AND THEREAFTER
FOR SO LONG AS INDEMNITEE SHALL BE SUBJECT TO ANY PENDING OR POSSIBLE
INDEMNIFIABLE CLAIM, THE COMPANY SHALL USE COMMERCIALLY REASONABLE EFFORTS
(TAKING INTO ACCOUNT THE SCOPE AND AMOUNT OF COVERAGE AVAILABLE RELATIVE TO THE
COST THEREOF) TO CAUSE TO BE MAINTAINED IN EFFECT POLICIES OF DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE PROVIDING COVERAGE FOR DIRECTORS AND/OR OFFICERS
OF THE COMPANY THAT IS AT LEAST SUBSTANTIALLY COMPARABLE IN SCOPE AND AMOUNT TO
THAT PROVIDED BY THE COMPANY'S CURRENT POLICIES OF DIRECTORS' AND OFFICERS'
LIABILITY INSURANCE. THE COMPANY SHALL PROVIDE INDEMNITEE WITH A COPY OF ALL
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE APPLICATIONS, BINDERS, POLICIES,
DECLARATIONS, ENDORSEMENTS AND OTHER RELATED MATERIALS, AND SHALL PROVIDE
INDEMNITEE WITH A REASONABLE OPPORTUNITY TO REVIEW AND COMMENT ON THE SAME.
WITHOUT LIMITING THE GENERALITY OR EFFECT OF THE TWO IMMEDIATELY PRECEDING
SENTENCES, THE COMPANY SHALL NOT DISCONTINUE OR SIGNIFICANTLY REDUCE THE SCOPE
OR AMOUNT OF COVERAGE FROM ONE POLICY PERIOD TO THE NEXT: (I) WITHOUT THE PRIOR
APPROVAL THEREOF BY A MAJORITY VOTE OF THE INCUMBENT DIRECTORS, EVEN IF LESS
THAN A QUORUM; OR (II) IF AT THE TIME THAT ANY SUCH DISCONTINUATION OR
SIGNIFICANT REDUCTION IN THE SCOPE OR AMOUNT OF COVERAGE IS PROPOSED THERE ARE
NO INCUMBENT DIRECTORS, WITHOUT THE PRIOR WRITTEN CONSENT OF INDEMNITEE (WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED). IN ALL POLICIES OF
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE OBTAINED BY THE COMPANY, INDEMNITEE
SHALL BE NAMED AS AN INSURED IN SUCH A MANNER AS TO PROVIDE INDEMNITEE THE SAME
RIGHTS AND BENEFITS, SUBJECT TO THE SAME LIMITATIONS, AS ARE ACCORDED TO THE
COMPANY'S DIRECTORS AND OFFICERS MOST FAVORABLY INSURED BY SUCH POLICY. THE
COMPANY MAY, BUT SHALL NOT BE REQUIRED TO, CREATE A TRUST FUND, GRANT A SECURITY
INTEREST OR USE OTHER MEANS, INCLUDING WITHOUT LIMITATION A LETTER OF CREDIT, TO
ENSURE THE
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PAYMENT OF SUCH AMOUNTS AS MAY BE NECESSARY TO SATISFY ITS OBLIGATIONS TO