PROVIDES FOR THE BEST COVERAGE AVAILABLE FOR
A COST NOT EXCEEDING SUCH AMOUNT.
9.
AMENDMENT OF THIS AGREEMENT.
NO SUPPLEMENT, MODIFICATION, OR
AMENDMENT OF THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY BOTH
OF THE PARTIES HERETO (INCLUDING FOR CLARIFICATION ANY SUCCESSOR TO THE
COMPANY'S OBLIGATIONS FOLLOWING A CHANGE OF CONTROL).
NO WAIVER OF ANY OF THE
PROVISIONS OF THIS AGREEMENT SHALL OPERATE AS A WAIVER OF ANY OTHER PROVISIONS
HEREOF (WHETHER OR NOT SIMILAR), NOR SHALL SUCH WAIVER CONSTITUTE A CONTINUING
WAIVER.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NO FAILURE TO EXERCISE OR ANY
DELAY IN EXERCISING ANY RIGHT OR REMEDY HEREUNDER SHALL CONSTITUTE A WAIVER
THEREOF.
10.
SUBROGATION.
IN THE EVENT OF PAYMENT UNDER THIS AGREEMENT, THE
COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS
OF RECOVERY OF INDEMNITEE, WHO SHALL EXECUTE ALL PAPERS REQUIRED AND SHALL DO
EVERYTHING THAT MAY BE REASONABLY NECESSARY TO SECURE SUCH RIGHTS, INCLUDING THE
EXECUTION OF SUCH DOCUMENTS REASONABLY NECESSARY
8
TO ENABLE THE COMPANY EFFECTIVELY TO BRING SUIT TO ENFORCE SUCH RIGHTS, AND ALL
OF INDEMNITEE'S REASONABLE EXPENSES RELATED THERETO WILL BE BORNE BY THE
COMPANY.
11.
NO DUPLICATION OF PAYMENTS.
THE COMPANY SHALL NOT BE LIABLE UNDER
THIS AGREEMENT TO MAKE ANY PAYMENT IN CONNECTION WITH ANY CLAIM MADE AGAINST
INDEMNITEE (OR PAY OR REIMBURSE ANY INDEMNIFIABLE COSTS OR OTHER EXPENSES TO
INDEMNITEE) TO THE EXTENT INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED PAYMENT
(UNDER ANY INSURANCE POLICY, OTHER RIGHT OF INDEMNITY OR AGREEMENT OR OTHERWISE)
OF THE AMOUNTS OTHERWISE INDEMNIFIABLE OR PAYABLE HEREUNDER.
THE COMPANY SHALL
NOT BE LIABLE TO INDEMNIFY INDEMNITEE UNDER THIS AGREEMENT: (A) FOR ANY AMOUNTS
PAID IN SETTLEMENT OF ANY PROCEEDING EFFECTED WITHOUT THE COMPANY'S WRITTEN
CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED, OR (B) FOR
ANY JUDICIAL AWARD IF THE COMPANY WAS NOT GIVEN A REASONABLY TIMELY OPPORTUNITY
TO PARTICIPATE, AT ITS EXPENSE, IN THE DEFENSE OF SUCH ACTION, BUT ONLY TO THE
EXTENT THAT THE FAILURE TO BE GIVEN SUCH REASONABLY TIMELY OPPORTUNITY ACTUALLY
AND MATERIALLY PREJUDICED THE COMPANY'S ABILITY TO DEFEND SUCH ACTION.
12.
BINDING EFFECT.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF AND BE ENFORCEABLE BY THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS, ASSIGNS, INCLUDING ANY DIRECT OR INDIRECT SUCCESSOR BY PURCHASE,
MERGER, CONSOLIDATION, OR OTHERWISE TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS
AND/OR ASSETS OF THE COMPANY, SPOUSES, HEIRS, AND PERSONAL AND LEGAL
REPRESENTATIVES.
THE COMPANY SHALL REQUIRE AND CAUSE ANY SUCCESSOR (WHETHER
DIRECT OR INDIRECT BY PURCHASE, MERGER, CONSOLIDATION, OR OTHERWISE) TO ALL,
SUBSTANTIALLY ALL, OR A SUBSTANTIAL PART, OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY, BY WRITTEN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE,
EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND
TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH
SUCCESSION HAD TAKEN PLACE.
THIS AGREEMENT SHALL CONTINUE IN EFFECT REGARDLESS
OF WHETHER INDEMNITEE CONTINUES TO SERVE