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 OF ANY AMOUNT OTHERWISE INDEMNIFIABLE
HEREUNDER, OR FOR WHICH ADVANCEMENT IS PROVIDED HEREUNDER, IF AND TO THE EXTENT
INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED SUCH PAYMENT, WHETHER PURSUANT TO ANY
INSURANCE POLICY, THE ORGANIZATIONAL DOCUMENTS OF ANY COVERED ENTITY OR
OTHERWISE.
7.
MUTUAL ACKNOWLEDGMENT. BOTH THE COMPANY AND INDEMNITEE
ACKNOWLEDGE THAT, IN CERTAIN INSTANCES, FEDERAL LAW OR PUBLIC POLICY
MAY OVERRIDE APPLICABLE STATE LAW AND PROHIBIT THE COMPANY FROM INDEMNIFYING ITS
DIRECTORS AND OFFICERS UNDER THIS AGREEMENT OR OTHERWISE. FOR EXAMPLE, THE
COMPANY AND INDEMNITEE ACKNOWLEDGE THAT THE SEC HAS TAKEN THE POSITION THAT
INDEMNIFICATION IS NOT PERMISSIBLE FOR LIABILITIES ARISING UNDER CERTAIN FEDERAL
SECURITIES LAWS, AND FEDERAL LEGISLATION PROHIBITS INDEMNIFICATION FOR CERTAIN
ERISA VIOLATIONS. INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY HAS
UNDERTAKEN, OR MAY BE REQUIRED IN THE FUTURE TO UNDERTAKE, WITH THE SEC TO
SUBMIT THE QUESTION OF INDEMNIFICATION TO A COURT IN CERTAIN CIRCUMSTANCES FOR A
DETERMINATION OF THE COMPANY'S RIGHT UNDER PUBLIC POLICY TO INDEMNIFY
INDEMNITEE, AND ANY RIGHT TO INDEMNIFICATION HEREUNDER SHALL BE SUBJECT TO, AND
CONDITIONED UPON, ANY SUCH REQUIRED COURT DETERMINATION.
8.
LIABILITY INSURANCE. TO THE EXTENT THE COMPANY MAINTAINS
LIABILITY INSURANCE APPLICABLE TO DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLING
PERSONS, AGENTS OR FIDUCIARIES OF ANY COVERED ENTITY, INDEMNITEE SHALL BE
COVERED BY SUCH POLICY OR POLICIES IN SUCH A MANNER AS TO PROVIDE INDEMNITEE THE
SAME RIGHTS AND BENEFITS AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF
THE COVERED ENTITY'S DIRECTORS, IF INDEMNITEE IS A DIRECTOR OF SUCH COVERED
ENTITY, OR OF THE COVERED ENTITY'S OFFICERS, IF INDEMNITEE IS NOT A DIRECTOR OF
SUCH COVERED ENTITY BUT IS AN OFFICER OF SUCH COVERED ENTITY, OR OF THE COVERED
ENTITY'S KEY EMPLOYEES, CONTROLLING PERSONS, AGENTS OR FIDUCIARIES, IF
INDEMNITEE IS NOT AN OFFICER OR DIRECTOR BUT IS A KEY EMPLOYEE, CONTROLLING
PERSON, AGENT OR FIDUCIARY OF SUCH COVERED ENTITY, AS THE CASE MAY BE. THE
COMPANY SHALL ADVISE INDEMNITEE AS TO THE GENERAL TERMS OF, AND THE AMOUNTS OF
COVERAGE PROVIDE BY, ANY LIABILITY INSURANCE POLICY DESCRIBED IN THIS SECTION 8
AND SHALL PROMPTLY NOTIFY INDEMNITEE IF, AT ANY TIME, ANY SUCH INSURANCE POLICY
WILL NO LONGER BE MAINTAINED OR THE AMOUNT OF COVERAGE UNDER ANY SUCH INSURANCE
POLICY WILL BE DECREASED.
9.
EXCEPTIONS. ANY OTHER PROVISION HEREIN TO THE CONTRARY
NOTWITHSTANDING, THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE TERMS OF
THIS AGREEMENT TO INDEMNIFY INDEMNITEE:
(A)
AGAINST ANY LOSSES OR EXPENSES, OR ADVANCE EXPENSES TO INDEMNITEE,
WITH RESPECT TO CLAIMS INITIATED OR BROUGHT VOLUNTARILY BY INDEMNITEE, AND NOT
BY WAY OF DEFENSE (INCLUDING, WITHOUT LIMITATION, AFFIRMATIVE DEFENSES AND
COUNTER-CLAIMS), EXCEPT (I) CLAIMS TO ESTABLISH OR ENFORCE A RIGHT TO
INDEMNIFICATION, CONTRIBUTION OR ADVANCEMENT WITH RESPECT TO AN INDEMNIFICATION
EVENT, WHETHER UNDER THIS AGREEMENT, ANY OTHER AGREEMENT OR INSURANCE