IN SECTION 11(D) EVEN THOUGH INDEMNITEE MAY HAVE CEASED TO SERVE IN SUCH
CAPACITY AT THE TIME OF ANY PROCEEDING.
4.
PARTIAL INDEMNIFICATION.
IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT OR OTHERWISE TO INDEMNIFICATION BY THE COMPANY FOR
SOME OR A PORTION OF THE EXPENSES, JUDGMENTS, FINES OR PENALTIES ACTUALLY OR
REASONABLY INCURRED BY HIM IN THE INVESTIGATION, PREPARATION FOR, DEFENSE,
APPEAL OR SETTLEMENT OF ANY PROCEEDING, BUT NOT, HOWEVER, FOR THE TOTAL AMOUNT
THEREOF, THE COMPANY SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION OF
SUCH EXPENSES, JUDGMENTS, FINES OR PENALTIES TO WHICH INDEMNITEE IS ENTITLED.
5.
MANDATORY INDEMNIFICATION.
NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, TO THE EXTENT THAT INDEMNITEE HAS BEEN SUCCESSFUL ON THE
MERITS OR OTHERWISE IN DEFENSE OF ANY PROCEEDING RELATING IN WHOLE OR IN PART TO
AN INDEMNIFIABLE EVENT OR IN DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN,
INDEMNITEE SHALL BE INDEMNIFIED AGAINST ALL EXPENSES ACTUALLY AND REASONABLY
INCURRED BY INDEMNITEE IN CONNECTION THEREWITH.
6.
MUTUAL ACKNOWLEDGMENT.
BOTH THE COMPANY AND INDEMNITEE
ACKNOWLEDGE THAT IN CERTAIN INSTANCES, APPLICABLE LAW OR PUBLIC POLICY MAY
PROHIBIT THE COMPANY FROM INDEMNIFYING ITS DIRECTORS AND OFFICERS, AND/OR THE
DIRECTORS AND OFFICERS OF ANY OF ITS SUBSIDIARIES UNDER THIS AGREEMENT OR
OTHERWISE.
INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY HAS
UNDERTAKEN OR MAY BE REQUIRED IN THE FUTURE TO UNDERTAKE WITH THE SECURITIES AND
EXCHANGE COMMISSION TO SUBMIT THE QUESTION OF INDEMNIFICATION TO A COURT IN
CERTAIN CIRCUMSTANCES FOR A DETERMINATION OF THE COMPANY'S RIGHT UNDER
APPLICABLE LAW OR PUBLIC POLICY TO INDEMNIFY INDEMNITEE.
7.
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE.
THE COMPANY SHALL,
FROM TIME TO 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 REPUTABLE INSURANCE COMPANIES PROVIDING THE OFFICERS AND
DIRECTORS OF THE COMPANY AND/OR ITS SUBSIDIARIES WITH COVERAGE FOR LOSSES FROM
WRONGFUL ACTS OR TO ENSURE THE COMPANY'S PERFORMANCE OF ITS INDEMNIFICATION
OBLIGATIONS UNDER THIS AGREEMENT.
AMONG OTHER
6
CONSIDERATIONS, THE COMPANY WILL WEIGH THE COSTS OF OBTAINING SUCH INSURANCE
COVERAGE AGAINST THE PROTECTION AFFORDED BY SUCH COVERAGE.
IN ALL POLICIES OF
DIRECTORS' AND OFFICERS' 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 AND/OR ITS
SUBSIDIARIES' DIRECTORS, IF INDEMNITEE IS A DIRECTOR, OR OF THE COMPANY'S AND/OR
ITS SUBSIDIARIES' OFFICERS, IF INDEMNITEE IS NOT A DIRECTOR OF THE COMPANY BUT
IS AN OFFICER THEREOF.
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, IF
THE COVERAGE PROVIDED BY SUCH INSURANCE IS LIMITED BY EXCLUSIONS SO AS TO
PROVIDE AN INSUFFICIENT BENEFIT, IF INDEMNITEE IS COVERED BY SIMILAR INSURANCE
MAINTAINED BY A SUBSIDIARY OR PARENT OF