WITH RESPECT TO SUCH TIME-BASED FORFEITURE AND/OR
VESTING PROVISIONS.
(VI)
CORPORATION SHALL FURNISH OFFICER FOR SIX (6) YEARS FOLLOWING THE
DATE OF TERMINATION (WITHOUT REFERENCE TO WHETHER THE EMPLOYMENT PERIOD
CONTINUES IN EFFECT) WITH DIRECTORS' AND OFFICERS' LIABILITY INSURANCE INSURING
OFFICER AGAINST INSURABLE EVENTS WHICH OCCUR OR HAVE OCCURRED WHILE OFFICER WAS
A DIRECTOR OR OFFICER OF CORPORATION, SUCH INSURANCE TO HAVE POLICY LIMITS
AGGREGATING NOT LESS THAN THE AMOUNT IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE
IN CONTROL, AND OTHERWISE TO BE IN SUBSTANTIALLY THE SAME FORM AND TO CONTAIN
SUBSTANTIALLY THE SAME TERMS, CONDITIONS AND EXCEPTIONS AS THE LIABILITY
ISSUANCE POLICIES PROVIDED FOR OFFICERS AND DIRECTORS OF CORPORATION IN FORCE
FROM TIME TO TIME, PROVIDED, HOWEVER, THAT SUCH TERMS, CONDITIONS AND EXCEPTIONS
SHALL NOT BE, IN THE AGGREGATE, MATERIALLY LESS FAVORABLE TO OFFICER THAN THOSE
IN EFFECT ON THE EFFECTIVE DATE; PROVIDED, FURTHER, THAT IF THE AGGREGATE ANNUAL
PREMIUMS FOR SUCH INSURANCE AT ANY TIME DURING SUCH PERIOD EXCEED ONE HUNDRED
AND FIFTY PERCENT (150%) OF THE PER ANNUM RATE OF PREMIUM CURRENTLY PAID BY
CORPORATION FOR SUCH INSURANCE, THEN CORPORATION SHALL PROVIDE THE MAXIMUM
COVERAGE THAT WILL THEN BE AVAILABLE AT AN ANNUAL PREMIUM EQUAL TO ONE HUNDRED
AND FIFTY PERCENT (150%) OF SUCH RATE.
(VII)
IN ANY SITUATION WHERE UNDER APPLICABLE LAW CORPORATION HAS THE
POWER TO INDEMNIFY (OR ADVANCE EXPENSES TO) OFFICER IN RESPECT OF ANY JUDGMENTS,
FINES, SETTLEMENTS, LOSS; COST OR EXPENSE (INCLUDING ATTORNEYS' FEES) OF ANY
NATURE RELATED TO OR ARISING OUT OF OFFICER'S ACTIVITIES AS AN AGENT, EMPLOYEE,
OFFICER OR DIRECTOR OF CORPORATION OR IN ANY OTHER CAPACITY ON BEHALF OF OR AT
THE REQUEST OF CORPORATION, CORPORATION SHALL PROMPTLY ON WRITTEN REQUEST,
INDEMNIFY (AND ADVANCE EXPENSES TO) OFFICER TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO MAKING SUCH FINDINGS AND
DETERMINATIONS AND TAKING ANY AND ALL SUCH ACTIONS AS CORPORATION MAY, UNDER
APPLICABLE LAW, BE PERMITTED TO HAVE THE DISCRETION TO TAKE SO AS TO EFFECTUATE
SUCH INDEMNIFICATION OR ADVANCEMENT.
SUCH AGREEMENT BY CORPORATION SHALL NOT BE
DEEMED TO IMPAIR ANY OTHER OBLIGATION OF CORPORATION RESPECTING OFFICER'S
INDEMNIFICATION (OR ADVANCEMENT OF EXPENSES) OTHERWISE ARISING OUT OF THIS OR
ANY OTHER AGREEMENT OR PROMISE OF CORPORATION OR UNDER ANY CORPORATE GOVERNANCE
DOCUMENT OF CORPORATION OR UNDER STATUTE OR APPLICABLE LAW.
11
(VIII)
(A)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, IF IT SHALL BE DETERMINED THAT ANY PAYMENT, ENTITLEMENT,
BENEFIT OR DISTRIBUTION TO OFFICER OR FOR OFFICER'S BENEFIT (WHETHER PAID OR
PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO THE TERMS OF THIS AGREEMENT
OR OTHERWISE AND WHETHER PURSUANT TO OR BY REASON OF ANY OTHER AGREEMENT,
POLICY, PLAN, PROGRAM OR ARRANGEMENT, INCLUDING WITHOUT LIMITATION ANY STOCK
OPTION, RESTRICTED STOCK, RESTRICTED STOCK UNIT, STOCK APPRECIATION RIGHT OR
SIMILAR RIGHT, OR THE LAPSE OR TERMINATION OF ANY RESTRICTION ON OR THE VESTING
OR EXERCISABILITY OF ANY OF THE FOREGOING) (THE "PAYMENTS") WOULD BE SUBJECT TO
THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE OR TO