AGREES TO SERVE AS AGENT OF THE
COMPANY, AT ITS WILL, SO LONG AS INDEMNITEE IS DULY APPOINTED OR ELECTED AND
QUALIFIED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE BYLAWS OF THE
COMPANY OR ANY SUBSIDIARY OF THE COMPANY OR UNTIL SUCH TIME AS INDEMNITEE
TENDERS HIS OR HER RESIGNATION IN WRITING; PROVIDED, HOWEVER, THAT NOTHING
CONTAINED IN THIS AGREEMENT IS INTENDED TO CREATE ANY RIGHT TO CONTINUED
EMPLOYMENT BY INDEMNITEE.
3.
LIABILITY INSURANCE.
(A)
MAINTENANCE OF D&O INSURANCE.
THE COMPANY HEREBY COVENANTS AND AGREES
THAT, SO LONG AS THE INDEMNITEE SHALL CONTINUE TO SERVE AS AN AGENT OF THE
COMPANY AND THEREAFTER SO LONG AS THE INDEMNITEE SHALL BE SUBJECT TO ANY
POSSIBLE PROCEEDING BY REASON OF THE FACT THAT THE INDEMNITEE WAS AN AGENT OF
THE COMPANY, THE COMPANY, SUBJECT TO SECTION 3(C), SHALL PROMPTLY OBTAIN AND
MAINTAIN IN FULL FORCE AND EFFECT DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
("D&O INSURANCE") IN REASONABLE AMOUNTS FROM ESTABLISHED AND REPUTABLE INSURERS.
(B)
RIGHTS AND BENEFITS.
IN ALL POLICIES OF D&O INSURANCE, THE INDEMNITEE
SHALL BE NAMED AS AN INSURED IN SUCH A MANNER AS TO PROVIDE THE INDEMNITEE THE
SAME RIGHTS AND BENEFITS AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF THE
COMPANY'S DIRECTORS.
(C)
LIMITATION ON REQUIRED MAINTENANCE OF D&O INSURANCE.
NOTWITHSTANDING THE
FOREGOING, THE COMPANY SHALL HAVE NO OBLIGATION TO OBTAIN OR MAINTAIN D&O
INSURANCE IF THE COMPANY DETERMINES IN GOOD FAITH THAT SUCH INSURANCE IS NOT
REASONABLY AVAILABLE, THE PREMIUM COSTS FOR SUCH INSURANCE ARE DISPROPORTIONATE
TO THE AMOUNT OF COVERAGE PROVIDED, THE COVERAGE PROVIDED BY SUCH INSURANCE IS
LIMITED BY EXCLUSIONS SO AS TO PROVIDE AN INSUFFICIENT BENEFIT, OR THE
INDEMNITEE IS COVERED BY SIMILAR INSURANCE MAINTAINED BY A SUBSIDIARY OF THE
COMPANY.
4.
MANDATORY INDEMNIFICATION.
SUBJECT TO SECTION 10 BELOW, THE COMPANY
SHALL INDEMNIFY THE INDEMNITEE AS FOLLOWS:
(A)
THIRD PARTY ACTIONS.
IF THE INDEMNITEE WAS OR IS A PARTY OR IS THREATENED
TO BE MADE A PARTY TO ANY PROCEEDING (OTHER THAN AN ACTION BY OR IN THE RIGHT OF
THE COMPANY) BY REASON OF THE FACT THAT INDEMNITEE IS OR WAS AN AGENT OF THE
COMPANY, OR BY REASON OF ANYTHING DONE OR NOT DONE BY HIM OR HER IN ANY SUCH
CAPACITY, THE COMPANY SHALL INDEMNIFY THE INDEMNITEE AGAINST ANY AND ALL
EXPENSES AND LIABILITIES OF ANY TYPE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
JUDGMENTS, FINES, ERISA EXCISE TAXES AND PENALTIES, AND AMOUNTS PAID IN
SETTLEMENT) ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN CONNECTION WITH
THE INVESTIGATION, DEFENSE, SETTLEMENT OR APPEAL OF SUCH PROCEEDING, PROVIDED
THE INDEMNITEE ACTED IN GOOD FAITH AND IN A MANNER HE REASONABLY BELIEVED TO BE
IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY AND ITS STOCKHOLDERS,
AND, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD NO REASONABLE CAUSE
TO BELIEVE HIS CONDUCT WAS UNLAWFUL.
3
(B)
OTHER ACTIONS.
IF THE INDEMNITEE WAS OR IS A PARTY OR IS THREATENED TO BE
MADE A PARTY TO ANY PROCEEDING BY OR IN THE