PER ANNUM THE COMPANY PAID FOR THE CURRENT POLICIES OF DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE MAINTAINED BY THE COMPANY (THE "D&O POLICY") FOR
THE CURRENT POLICY YEAR (THE "ANNUAL PREMIUM") IS AS SET FORTH IN SECTION 3.17
OF THE COMPANY DISCLOSURE LETTER. PARENT AND THE SURVIVING CORPORATION SHALL
EITHER:
(I)
MAINTAIN THE D&O POLICY IN EFFECT FOR
NOT LESS THAN SIX YEARS FROM THE EFFECTIVE TIME (PROVIDED THAT PARENT MAY
SUBSTITUTE THEREFOR, THROUGH BROKERS OF ITS CHOICE,
POLICIES OF AT LEAST
COMPARABLE COVERAGE CONTAINING TERMS AND CONDITIONS WHICH ARE NO LESS
ADVANTAGEOUS TO THE INDEMNIFIED PERSONS IN ALL MATERIAL RESPECTS SO LONG AS NO
LAPSE IN COVERAGE OCCURS AS A RESULT OF SUCH SUBSTITUTION) WITH RESPECT TO ALL
MATTERS (INCLUDING, WITHOUT LIMITATION, EXTENDED REPORTING ENDORSEMENTS (TAIL
COVERAGE) ON FIDUCIARY LIABILITY WITH RESPECT TO ALL SENIOR OFFICERS AND
DIRECTORS OF THE COMPANY), INCLUDING THE TRANSACTIONS CONTEMPLATED HEREBY,
OCCURRING PRIOR TO, AND INCLUDING THE EFFECTIVE TIME; PROVIDED THAT, IN THE
EVENT THAT ANY CLAIM FOR ANY LOSSES IS ASSERTED OR MADE WITHIN SUCH SIX-YEAR
PERIOD, SUCH INSURANCE SHALL BE CONTINUED IN RESPECT OF ANY SUCH CLAIM UNTIL
FINAL DISPOSITION OF ANY AND ALL SUCH CLAIMS; AND PROVIDED, FURTHER, THAT PARENT
SHALL NOT BE OBLIGATED TO MAKE AGGREGATE PREMIUM PAYMENTS FOR SUCH INSURANCE TO
THE EXTENT SUCH ANNUAL PREMIUMS IN THE AGGREGATE EXCEED TWO HUNDRED PERCENT
(200%) OF THE ANNUAL PREMIUM.
IN SUCH CASE, PARENT SHALL PURCHASE ONLY AS MUCH
COVERAGE AS POSSIBLE FOR AGGREGATELY TWO HUNDRED PERCENT (200%) OF THE ANNUAL
PREMIUM; OR
(II)
NOTWITHSTANDING THE FOREGOING, AND IN LIEU
THEREOF, PRIOR TO THE EFFECTIVE TIME, THE PARENT MAY ARRANGE FOR AND PURCHASE
THROUGH BROKERS OF ITS CHOICE A DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
"TAIL" OR "RUNOFF" INSURANCE PROGRAM, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO PARENT AND THE COMPANY, EFFECTIVE AS OF THE EFFECTIVE TIME, TO
EXTEND THE REPORTING PERIOD FOR A PERIOD OF SIX (6) YEARS FROM AND AFTER THE
EFFECTIVE TIME WITH RESPECT TO ACTS OR OMISSIONS OCCURRING ON OR PRIOR TO THE
EFFECTIVE TIME, WITH SUCH COVERAGE TO HAVE AN AGGREGATE COVERAGE LIMIT OVER THE
TERM OF SUCH POLICY IN AN AMOUNT AT LEAST EQUAL TO THE ANNUAL AGGREGATE COVERAGE
LIMITS UNDER THE D&O POLICY; PROVIDED THAT THE AGGREGATE PREMIUM FOR SUCH
COVERAGE SHALL NOT EXCEED TWO (2) TIMES THE ANNUAL PREMIUM. IN THE EVENT THAT
THE PARENT PURCHASES SUCH A "TAIL" OR "RUNOFF" POLICY PRIOR TO THE EFFECTIVE
TIME, PARENT AND THE SURVIVING CORPORATION SHALL MAINTAIN SUCH "TAIL" OR
"RUNOFF" POLICY FOR SO LONG AS SUCH "TAIL" OR "RUNOFF" POLICY SHALL BE
MAINTAINED IN FULL FORCE AND EFFECT IN LIEU OF ALL OTHER OBLIGATIONS OF PARENT
AND THE SURVIVING CORPORATION UNDER THIS SECTION 5.10(D).
NEITHER PARENT NOR THE SURVIVING CORPORATION SHALL BE DEEMED IN BREACH OF THEIR
OBLIGATIONS TO MAINTAIN ANY INSURANCE POLICY PURSUANT TO THIS SECTION 5.10(D) AS
TO ANY INDEMNIFIED PARTY THAT IS DENIED COVERAGE UNDER SUCH INSURANCE POLICY BY
THE ISSUER OR UNDERWRITER THEREOF AS A RESULT OF ANY ACT OR OMISSION OF AN