IN ARTICLE 5 HEREOF SHALL, TO
THE EXTENT APPLICABLE, BE USED FOR DETERMINING ENTITLEMENT TO INDEMNIFICATION
UNDER THIS SECTION 7.3.
THIS AGREEMENT IS AUTHORIZED BY SECTION 2.02-1(R) OF
THE TBCA AS IN EFFECT ON THE EFFECTIVE DATE,
11
and further is intended to establish an arrangement of self-insurance and an
"other arrangement" pursuant to that section.
SECTION 7.4
CERTAIN SETTLEMENT PROVISIONS.
THE CORPORATION SHALL HAVE NO OBLIGATION TO INDEMNIFY INDEMNITEE UNDER THIS
AGREEMENT FOR AMOUNTS PAID IN SETTLEMENT OF A PROCEEDING OR CLAIM WITHOUT THE
CORPORATION'S PRIOR WRITTEN CONSENT.
THE CORPORATION SHALL NOT SETTLE ANY
PROCEEDING OR CLAIM IN ANY MANNER THAT WOULD IMPOSE ANY FINE OR OTHER OBLIGATION
ON INDEMNITEE WITHOUT INDEMNITEE'S PRIOR WRITTEN CONSENT.
NEITHER THE
CORPORATION NOR INDEMNITEE SHALL UNREASONABLY WITHHOLD THEIR CONSENT TO ANY
PROPOSED SETTLEMENT.
SECTION 7.5
EXCULPATION OF DIRECTORS.
IF
INDEMNITEE IS A DIRECTOR OF THE CORPORATION, INDEMNITEE SHALL, IN INDEMNITEE'S
CAPACITY AS A DIRECTOR OF THE CORPORATION, NOT BE LIABLE TO THE CORPORATION OR
ITS SHAREHOLDERS FOR MONETARY DAMAGES FOR AN ACT OR OMISSION IN INDEMNITEE'S
CAPACITY AS A DIRECTOR, EXCEPT THAT INDEMNITEE'S LIABILITY SHALL NOT BE
ELIMINATED OR LIMITED FOR; (A) A BREACH OF INDEMNITEE'S DUTY OF LOYALTY TO THE
CORPORATION OR ITS SHAREHOLDERS; (B) AN ACT OR OMISSION NOT IN GOOD FAITH THAT
CONSTITUTES A BREACH OF DUTY OF A DIRECTOR TO THE CORPORATION OR THAT INVOLVES
INTENTIONAL MISCONDUCT OR A KNOWING VIOLATION OF THE LAW; (C) A TRANSACTION FROM
WHICH INDEMNITEE RECEIVED AN IMPROPER BENEFIT, WHETHER OR NOT THE BENEFIT
RESULTED FROM AN ACTION TAKEN WITHIN THE SCOPE OF INDEMNITEE'S OFFICE; OR (D) AN
ACT OR OMISSION FOR WHICH THE LIABILITY OF INDEMNITEE IS EXPRESSLY PROVIDED FOR
BY STATUTE.
SECTION 7.6
DURATION OF AGREEMENT.
THIS
AGREEMENT SHALL CONTINUE FOR SO LONG AS INDEMNITEE SERVES AT THE REQUEST OF THE
CORPORATION AS A DIRECTOR, OFFICER, EMPLOYEE, AGENT OR FIDUCIARY OF THE
CORPORATION OR AS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, AGENT OR FIDUCIARY OF
ANY OTHER CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN
OR OTHER ENTERPRISE IN WHICH THE CORPORATION HAS AN INTEREST, AND THEREAFTER
SHALL SURVIVE UNTIL AND TERMINATE UPON THE LAST TO OCCUR OF: (A) 20 YEARS AFTER
THE DATE THAT INDEMNITEE SHALL HAVE CEASED TO SERVE AS A DIRECTOR, OFFICER,
EMPLOYEE, AGENT OR FIDUCIARY OF THE CORPORATION AND OF ANY OTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN OR OTHER ENTERPRISE
WHICH INDEMNITEE SERVED AT THE REQUEST OF THE CORPORATION; (B) THE FINAL
TERMINATION OF ALL PENDING PROCEEDINGS IN RESPECT OF WHICH INDEMNITEE IS GRANTED
RIGHTS OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES HEREUNDER AND OF ANY
PROCEEDING COMMENCED BY INDEMNITEE PURSUANT TO ARTICLE 6 RELATING THERETO; OR
(C) THE EXPIRATION OF ALL STATUTES OF LIMITATION APPLICABLE TO POSSIBLE CLAIMS
ARISING OUT OF INDEMNITEE'S CORPORATE STATUS.
SECTION 7.7
NOTICE BY EACH PARTY.
INDEMNITEE AGREES TO PROMPTLY NOTIFY THE CORPORATION IN WRITING UPON BEING
SERVED WITH ANY SUMMONS, CITATION, SUBPOENA, COMPLAINT, INDICTMENT, INFORMATION
OR OTHER DOCUMENT OR COMMUNICATION RELATING TO ANY PROCEEDING OR CLAIM FOR WHICH
INDEMNITEE MAY