TIME, MAKE THE GOOD
FAITH DETERMINATION WHETHER OR NOT IT IS PRACTICABLE FOR THE COMPANY TO OBTAIN
AND MAINTAIN A POLICY OR POLICIES OF INSURANCE WITH A REPUTABLE INSURANCE
COMPANY PROVIDING THE INDEMNITEE WITH COVERAGE FOR LOSSES FROM WRONGFUL ACTS.
FOR SO LONG AS INDEMNITEE SHALL REMAIN AN EMPLOYEE AND OFFICER OF THE COMPANY IN
THE ROLE OF CHIEF FINANCIAL OFFICER, PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL
ACCOUNTING OFFICER AND WITH RESPECT TO ANY SUCH PRIOR SERVICE, IN ALL POLICIES
OF DIRECTOR AND OFFICER LIABILITY INSURANCE, INDEMNITEE SHALL BE NAMED AS AN
INSURED IN SUCH A MANNER AS TO PROVIDE INDEMNITEE THE SAME RIGHTS AND BENEFITS
AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF THE COMPANY'S OFFICERS AND
DIRECTORS.
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL HAVE NO OBLIGATION
TO OBTAIN OR MAINTAIN SUCH INSURANCE IF THE COMPANY DETERMINES IN GOOD FAITH
THAT SUCH INSURANCE IS NOT REASONABLY AVAILABLE, IF THE PREMIUM COSTS FOR SUCH
INSURANCE ARE DISPROPORTIONATE TO THE AMOUNT OF COVERAGE PROVIDED, OR IF THE
COVERAGE PROVIDED BY SUCH INSURANCE IS LIMITED BY EXCLUSIONS SO AS TO PROVIDE AN
INSUFFICIENT BENEFIT. THE COMPANY SHALL PROMPTLY NOTIFY INDEMNITEE OF ANY GOOD
FAITH DETERMINATION NOT TO PROVIDE SUCH COVERAGE.
14.
CONTRACT RIGHTS NOT EXCLUSIVE.
THE RIGHTS TO PAYMENT OF
INDEMNIFIABLE AMOUNTS AND ADVANCEMENT OF INDEMNIFIABLE EXPENSES PROVIDED BY THIS
AGREEMENT SHALL BE IN ADDITION TO, BUT NOT EXCLUSIVE OF, ANY OTHER RIGHTS WHICH
INDEMNITEE MAY HAVE AT ANY TIME UNDER APPLICABLE LAW, THE COMPANY'S CERTIFICATE
OF INCORPORATION OR BY-LAWS, OR ANY OTHER AGREEMENT, VOTE OF STOCKHOLDERS OR
DIRECTORS (OR A COMMITTEE OF DIRECTORS), OR OTHERWISE, BOTH AS TO ACTION IN
INDEMNITEE'S OFFICIAL CAPACITY AND AS TO ACTION IN ANY OTHER CAPACITY AS A
RESULT OF INDEMNITEE'S SERVING AS AN EMPLOYEE AND OFFICER OF THE COMPANY IN THE
ROLE OF CHIEF FIANCIAL OFFICER, PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL
ACCOUNTING OFFICER.
15.
SUCCESSORS.
THIS AGREEMENT SHALL BE (A) BINDING UPON ALL
SUCCESSORS AND ASSIGNS OF THE COMPANY (INCLUDING ANY TRANSFEREE OF ALL OR A
SUBSTANTIAL PORTION OF THE BUSINESS, STOCK AND/OR ASSETS OF THE COMPANY AND ANY
DIRECT OR INDIRECT SUCCESSOR BY MERGER OR CONSOLIDATION OR OTHERWISE BY
OPERATION OF LAW) AND (B) BINDING ON AND SHALL INURE TO THE BENEFIT OF THE
HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS AND ADMINISTRATORS OF INDEMNITEE.
THIS AGREEMENT SHALL CONTINUE FOR THE BENEFIT OF INDEMNITEE AND SUCH HEIRS,
PERSONAL REPRESENTATIVES, EXECUTORS AND ADMINISTRATORS AFTER INDEMNITEE HAS
CEASED TO HAVE CORPORATE STATUS.
7
16.
SUBROGATION.
IN THE EVENT OF ANY PAYMENT OF INDEMNIFIABLE AMOUNTS
UNDER THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH
PAYMENT TO ALL OF THE RIGHTS OF CONTRIBUTION OR RECOVERY OF INDEMNITEE AGAINST
OTHER PERSONS, AND INDEMNITEE SHALL TAKE, AT THE REQUEST OF THE COMPANY, ALL
REASONABLE ACTION NECESSARY TO SECURE SUCH RIGHTS, INCLUDING THE EXECUTION OF
SUCH DOCUMENTS AS ARE NECESSARY TO ENABLE THE COMPANY TO BRING SUIT TO ENFORCE
SUCH RIGHTS.
17.
CHANGE IN LAW.
TO THE EXTENT THAT A CHANGE IN DELAWARE LAW
(WHETHER BY STATUTE OR JUDICIAL