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 MAY NOT, WITHOUT THE CONSENT OF INDEMNITEE, ADOPT ANY
AMENDMENT TO ANY OF THE CONSTITUENT DOCUMENTS THE EFFECT OF WHICH WOULD BE TO
DENY, DIMINISH OR ENCUMBER INDEMNITEE'S RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT.
12.
LIABILITY INSURANCE AND FUNDING. FOR THE DURATION OF INDEMNITEE'S
SERVICE AS A DIRECTOR AND/OR OFFICER OF THE COMPANY AND FOR A REASONABLE PERIOD
OF TIME THEREAFTER, WHICH SUCH PERIOD SHALL BE DETERMINED BY THE COMPANY IN ITS
SOLE DISCRETION, 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, AND, IF APPLICABLE, 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, UPON REASONABLE REQUEST, THE
COMPANY SHALL PROVIDE INDEMNITEE OR HIS OR HER COUNSEL WITH A COPY OF ALL
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE APPLICATIONS, BINDERS, POLICIES,
DECLARATIONS, ENDORSEMENTS AND OTHER RELATED MATERIALS. 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.
NOTWITHSTANDING THE FOREGOING, (I) 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 PAYMENT OF SUCH
AMOUNTS AS MAY BE NECESSARY TO SATISFY ITS OBLIGATIONS TO INDEMNIFY AND ADVANCE
EXPENSES PURSUANT TO THIS AGREEMENT AND (II) IN RENEWING OR SEEKING TO RENEW ANY
INSURANCE HEREUNDER, THE COMPANY WILL NOT BE REQUIRED TO EXPEND MORE THAN 2.0
TIMES THE PREMIUM AMOUNT OF
8
the immediately preceding policy period (equitably adjusted if necessary to
reflect differences in policy periods).
13.
SUBROGATION. IN THE EVENT OF PAYMENT UNDER THIS AGREEMENT, THE
COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL OF THE RELATED
RIGHTS OF RECOVERY OF INDEMNITEE AGAINST OTHER PERSONS (OTHER THAN INDEMNITEE'S
SUCCESSORS), INCLUDING ANY ENTITY OR ENTERPRISE REFERRED TO IN CLAUSE (I) OF THE
DEFINITION OF "INDEMNIFIABLE CLAIM" IN SECTION 1(F). INDEMNITEE SHALL EXECUTE
ALL PAPERS REASONABLY REQUIRED TO EVIDENCE SUCH RIGHTS (ALL OF INDEMNITEE'S
REASONABLE EXPENSES, INCLUDING ATTORNEYS' FEES AND CHARGES, RELATED THERETO TO
BE REIMBURSED BY OR, AT THE OPTION OF INDEMNITEE, ADVANCED BY THE COMPANY).
14.
NO DUPLICATION OF PAYMENTS. THE COMPANY SHALL NOT BE LIABLE UNDER
THIS AGREEMENT TO MAKE ANY PAYMENT TO INDEMNITEE IN RESPECT