OR AN AWARD IN ARBITRATION TO ENFORCE HIS RIGHTS UNDER, OR TO
RECOVER DAMAGES FOR BREACH OF, THIS AGREEMENT, INDEMNITEE SHALL BE ENTITLED TO
RECOVER FROM THE CORPORATION, AND SHALL BE INDEMNIFIED BY THE CORPORATION
AGAINST, ANY AND ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN
SUCH JUDICIAL ADJUDICATION OR ARBITRATION BUT ONLY IF INDEMNITEE PREVAILS
THEREIN.
IF IT SHALL BE DETERMINED IN SAID JUDICIAL ADJUDICATION OR ARBITRATION
THAT INDEMNITEE IS ENTITLED TO RECEIVE PART BUT NOT ALL OF THE INDEMNIFICATION
OR ADVANCEMENT OF EXPENSES OR OTHER BENEFIT SOUGHT, THE EXPENSES REASONABLY
INCURRED BY INDEMNITEE IN CONNECTION WITH SUCH JUDICIAL ADJUDICATION OR
ARBITRATION SHALL BE REASONABLY PRORATED IN GOOD FAITH BY COUNSEL FOR
INDEMNITEE.
NOTWITHSTANDING THE FOREGOING, IF A CHANGE IN CONTROL SHALL HAVE
OCCURRED, INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 6.5
REGARDLESS OF WHETHER INDEMNITEE ULTIMATELY PREVAILS IN SUCH JUDICIAL
ADJUDICATION OR ARBITRATION, UNLESS IT IS DETERMINED IN SUCH ADJUDICATION OR
ARBITRATION THAT SUCH INDEMNIFICATION IS NOT LAWFUL.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1
NON-EXCLUSIVITY.
THE RIGHTS OF
INDEMNITEE TO RECEIVE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES UNDER THIS
AGREEMENT SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH INDEMNITEE
MAY AT ANY TIME BE ENTITLED UNDER APPLICABLE LAW, THE RESTATED ARTICLES OF
INCORPORATION OR BY-LAWS OF THE CORPORATION, ANY OTHER AGREEMENT, VOTE OF
SHAREHOLDERS OR A RESOLUTION OF DIRECTORS, OR OTHERWISE.
NO AMENDMENT OR
ALTERATION OF THE RESTATED ARTICLES OF INCORPORATION OR BY-LAWS OF THE
CORPORATION OR ANY PROVISION THEREOF SHALL ADVERSELY AFFECT INDEMNITEE'S RIGHTS
HEREUNDER AND SUCH RIGHTS SHALL BE IN ADDITION TO ANY RIGHTS INDEMNITEE MAY HAVE
UNDER THE CORPORATION'S RESTATED ARTICLES OF INCORPORATION, BY-LAWS AND THE TBCA
OR OTHERWISE.
TO THE EXTENT THAT THERE IS A CHANGE IN THE TBCA (WHETHER BY
STATUTE OR JUDICIAL DECISION) WHICH ALLOWS GREATER INDEMNIFICATION BY AGREEMENT
THAN WOULD BE AFFORDED CURRENTLY UNDER THE CORPORATION'S RESTATED ARTICLES OF
INCORPORATION OR BY-LAWS AND THIS AGREEMENT, IT IS THE INTENT OF THE PARTIES
HERETO THAT THE INDEMNITEE SHALL ENJOY BY VIRTUE OF THIS AGREEMENT THE GREATER
BENEFIT SO AFFORDED BY SUCH CHANGE.
SECTION 7.2
INSURANCE AND SUBROGATION.
(A)
TO THE EXTENT THAT THE CORPORATION
MAINTAINS AN INSURANCE POLICY OR POLICIES PROVIDING LIABILITY INSURANCE FOR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR FIDUCIARIES OF THE CORPORATION OR OF
ANY OTHER CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN
OR OTHER ENTERPRISE THAT SUCH PERSON SERVES OR SERVED AT THE REQUEST OF THE
CORPORATION, INDEMNITEE SHALL BE COVERED BY SUCH POLICY OR POLICIES IN
ACCORDANCE WITH ITS OR THEIR TERMS TO THE MAXIMUM EXTENT OF THE COVERAGE
AVAILABLE FOR ANY SUCH DIRECTOR, OFFICER, EMPLOYEE, AGENT OR FIDUCIARY
THEREUNDER.
10
(B)
IN THE EVENT OF ANY PAYMENT BY THE
CORPORATION UNDER THIS AGREEMENT, THE CORPORATION SHALL BE SUBROGATED TO THE
EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS OF RECOVERY OF INDEMNITEE, WHO SHALL
EXECUTE ALL PAPERS REQUIRED AND TAKE ALL ACTION NECESSARY TO SECURE SUCH RIGHTS,
INCLUDING EXECUTION OF SUCH DOCUMENTS AS ARE NECESSARY TO ENABLE THE CORPORATION
TO BRING