EXPENSES OF INDEMNITEE'S COUNSEL SHALL BE AT THE
EXPENSE OF THE COMPANY.
5.
NONEXCLUSIVITY.
THE INDEMNIFICATION PROVIDED BY THIS AGREEMENT
SHALL BE IN ADDITION TO ANY RIGHTS TO WHICH INDEMNITEE MAY BE ENTITLED UNDER THE
COMPANY'S CERTIFICATE, ITS BYLAWS, ANY AGREEMENT, ANY VOTE OF STOCKHOLDERS OR
DISINTERESTED DIRECTORS, THE DGCL, OR OTHERWISE. THE INDEMNIFICATION PROVIDED
UNDER THIS AGREEMENT SHALL CONTINUE AS TO INDEMNITEE FOR ANY ACTION INDEMNITEE
TOOK OR DID NOT TAKE WHILE SERVING IN AN INDEMNIFIED CAPACITY EVEN THOUGH
INDEMNITEE MAY HAVE CEASED TO SERVE IN SUCH CAPACITY.
6.
NO DUPLICATION OF PAYMENTS.
THE COMPANY SHALL NOT BE LIABLE
UNDER THIS AGREEMENT TO MAKE ANY PAYMENT IN CONNECTION WITH ANY CLAIM MADE
AGAINST ANY INDEMNITEE TO THE EXTENT INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED
PAYMENT (UNDER ANY INSURANCE POLICY, CERTIFICATE OF INCORPORATION, BYLAWS OR
OTHERWISE) OF THE AMOUNTS OTHERWISE INDEMNIFIABLE HEREUNDER.
7.
PARTIAL INDEMNIFICATION.
IF ANY INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR ANY PORTION OF
EXPENSES INCURRED IN CONNECTION WITH
5
ANY CLAIM, BUT NOT, HOWEVER, FOR ALL OF THE TOTAL AMOUNT THEREOF, THE COMPANY
SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION OF SUCH EXPENSES TO
WHICH INDEMNITEE IS ENTITLED.
8.
MUTUAL ACKNOWLEDGEMENT.
THE COMPANY AND INDEMNITEE ACKNOWLEDGE
THAT IN CERTAIN INSTANCES, FEDERAL LAW OR APPLICABLE PUBLIC POLICY MAY PROHIBIT
THE COMPANY FROM INDEMNIFYING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLING
PERSONS, AGENTS OR FIDUCIARIES UNDER THIS AGREEMENT OR OTHERWISE. EACH
INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY HAS UNDERTAKEN OR MAY
BE REQUIRED IN THE FUTURE TO UNDERTAKE WITH THE SECURITIES AND EXCHANGE
COMMISSION TO SUBMIT THE QUESTION OF INDEMNIFICATION TO A COURT IN CERTAIN
CIRCUMSTANCES FOR A DETERMINATION OF THE COMPANY'S RIGHTS UNDER PUBLIC POLICY TO
INDEMNIFY INDEMNITEE.
9.
EXCEPTIONS.
ANY OTHER PROVISION HEREIN TO THE CONTRARY
NOTWITHSTANDING, THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE TERMS OF
THIS AGREEMENT:
(A)
CLAIMS INITIATED BY INDEMNITEE.
TO INDEMNIFY OR ADVANCE EXPENSES
TO ANY INDEMNITEE WITH RESPECT TO CLAIMS INITIATED OR BROUGHT VOLUNTARILY BY
INDEMNITEE AND NOT BY WAY OF DEFENSE, EXCEPT (I) WITH RESPECT TO ACTIONS OR
PROCEEDINGS TO ESTABLISH OR ENFORCE A RIGHT TO INDEMNIFY UNDER THIS AGREEMENT OR
ANY OTHER AGREEMENT OR INSURANCE POLICY OR UNDER THE COMPANY'S CERTIFICATE OF
INCORPORATION OR BYLAWS NOW OR HEREAFTER IN EFFECT RELATING TO CLAIMS FOR
INDEMNIFIABLE EVENTS, (II) IN SPECIFIC CASES IF THE BOARD OF DIRECTORS HAS
APPROVED THE INITIATION OR BRINGING OF SUCH CLAIM, OR (III) AS OTHERWISE
REQUIRED UNDER SECTION 145 OF THE DGCL, REGARDLESS OF WHETHER INDEMNITEE
ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION, ADVANCE EXPENSE
PAYMENT OR INSURANCE RECOVERY, AS THE CASE MAY BE; OR
(B)
CLAIMS UNDER SECTION 16(B).
TO INDEMNIFY INDEMNITEE FOR EXPENSES
AND THE PAYMENT OF PROFITS ARISING FROM THE PURCHASE AND SALE BY INDEMNITEE OF
SECURITIES IN VIOLATION OF SECTION 16(B) OF THE EXCHANGE ACT OR ANY SIMILAR
SUCCESSOR STATUTE; OR
(C)
CLAIMS EXCLUDED UNDER SECTION 145 OF THE DELAWARE GENERAL
CORPORATION LAW.
TO INDEMNIFY INDEMNITEE IF (I) INDEMNITEE DID NOT