DULY AUTHORIZED BY THE COMPANY.
(B)
ENFORCEABILITY. THIS AGREEMENT, WHEN
EXECUTED AND DELIVERED BY THE COMPANY IN ACCORDANCE WITH THE PROVISIONS HEREOF,
SHALL BE A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION
OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
12.
INSURANCE. THE COMPANY WILL USE ITS
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN AND MAINTAIN A POLICY OR POLICIES OF
INSURANCE WITH REPUTABLE INSURANCE COMPANIES PROVIDING THE INDEMNITEE WITH
COVERAGE FOR LOSSES FROM WRONGFUL ACTS, AND TO ENSURE THE COMPANY'S PERFORMANCE
OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. IN ALL POLICIES OF
DIRECTOR AND OFFICER LIABILITY INSURANCE, INDEMNITEE SHALL BE NAMED AS AN
INSURED IN SUCH A MANNER AS TO PROVIDE INDEMNITEE AT LEAST THE SAME RIGHTS AND
BENEFITS AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF THE COMPANY'S OFFICERS
AND DIRECTORS. NOTWITHSTANDING THE FOREGOING, IF THE COMPANY, AFTER EMPLOYING
COMMERCIALLY REASONABLE EFFORTS AS PROVIDED IN THIS SECTION, DETERMINES IN GOOD
FAITH THAT SUCH INSURANCE IS NOT REASONABLY AVAILABLE, IF THE PREMIUM COSTS FOR
SUCH INSURANCE ARE DISPROPORTIONATE TO THE AMOUNT OF COVERAGE PROVIDED, OR IF
THE COVERAGE PROVIDED BY SUCH INSURANCE IS LIMITED BY EXCLUSIONS SO AS TO
PROVIDE AN INSUFFICIENT BENEFIT THE COMPANY SHALL USE ITS COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN AND MAINTAIN A POLICY OR
5
POLICIES OF INSURANCE WITH COVERAGE HAVING FEATURES AS SIMILAR AS PRACTICABLE TO
THOSE DESCRIBED ABOVE.
13.
CONTRACT RIGHTS NOT EXCLUSIVE. THE RIGHTS TO
PAYMENT OF INDEMNIFIABLE AMOUNTS AND ADVANCEMENT OF INDEMNIFIABLE EXPENSES
PROVIDED BY THIS AGREEMENT SHALL BE IN ADDITION TO, BUT NOT EXCLUSIVE OF, ANY
OTHER RIGHTS WHICH INDEMNITEE MAY HAVE AT ANY TIME UNDER APPLICABLE LAW, THE
COMPANY'S BY-LAWS OR CERTIFICATE OF INCORPORATION, OR ANY OTHER AGREEMENT, VOTE
OF STOCKHOLDERS OR DIRECTORS, OR OTHERWISE, BOTH AS TO ACTION IN INDEMNITEE'S
OFFICIAL CAPACITY AND AS TO ACTION IN ANY OTHER CAPACITY AS A RESULT OF
INDEMNITEE'S SERVING AS A DIRECTOR OF THE COMPANY.
14.
SUCCESSORS. THIS AGREEMENT SHALL BE
(A) BINDING UPON ALL SUCCESSORS AND ASSIGNS OF THE COMPANY (INCLUDING ANY
TRANSFEREE OF ALL OR A SUBSTANTIAL PORTION OF THE BUSINESS, STOCK AND/OR ASSETS
OF THE COMPANY AND ANY DIRECT OR INDIRECT SUCCESSOR BY MERGER OR CONSOLIDATION
OR OTHERWISE BY OPERATION OF LAW) AND (B) BINDING ON AND SHALL INURE TO THE
BENEFIT OF THE HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS AND ADMINISTRATORS OF
INDEMNITEE. THIS AGREEMENT SHALL CONTINUE FOR THE BENEFIT OF INDEMNITEE AND SUCH
HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS AND ADMINISTRATORS AFTER INDEMNITEE
HAS CEASED TO HAVE CORPORATE STATUS.
15.
SUBROGATION. IN THE EVENT OF ANY PAYMENT OF
INDEMNIFIABLE AMOUNTS UNDER THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO
THE EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS OF CONTRIBUTION OR RECOVERY OF
INDEMNITEE AGAINST OTHER PERSONS, AND INDEMNITEE SHALL TAKE, AT THE REQUEST OF
THE COMPANY, ALL REASONABLE ACTION NECESSARY TO SECURE SUCH RIGHTS, INCLUDING
THE EXECUTION OF SUCH DOCUMENTS AS ARE NECESSARY