PURSUANT TO
THIS SECTION 9, ABSENT A MISSTATEMENT OF A MATERIAL FACT IN THE INFORMATION
PROVIDED BY INDEMNITEE PURSUANT TO SECTION 7 OR SECTION 8 OR AN OMISSION OF A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE INFORMATION PROVIDED NOT
MISLEADING.
(D)
IN CONNECTION WITH ANY JUDICIAL PROCEEDING OR ARBITRATION
COMMENCED PURSUANT TO THIS SECTION 9, THE COMPANY SHALL NOT OPPOSE INDEMNITEE'S
RIGHT TO SEEK SUCH ADJUDICATION, SHALL BE PRECLUDED FROM ASSERTING THAT THE
PROCEDURES AND PRESUMPTIONS OF THIS AGREEMENT ARE NOT VALID, BINDING OR
ENFORCEABLE AND SHALL STIPULATE IN ANY SUCH COURT OR BEFORE ANY SUCH ARBITRATOR
THAT THE COMPANY IS BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT.
SECTION 10.
EXCEPTIONS.
Any other provision herein to the contrary notwithstanding:
(A)
CLAIMS INITIATED BY THE INDEMNITEE.
THE COMPANY SHALL NOT BE
OBLIGATED PURSUANT TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY OR ADVANCE
EXPENSES TO INDEMNITEE WITH RESPECT TO PROCEEDINGS OR CLAIMS INITIATED OR
BROUGHT VOLUNTARILY BY INDEMNITEE AND NOT BY WAY OF DEFENSE, UNLESS (I) SUCH
INDEMNIFICATION IS EXPRESSLY REQUIRED TO BE MADE BY LAW, (II) THE PROCEEDING WAS
AUTHORIZED BY THE BOARD, (III) SUCH INDEMNIFICATION IS PROVIDED BY THE COMPANY,
IN ITS SOLE DISCRETION, PURSUANT TO THE POWERS VESTED IN THE COMPANY UNDER THE
TEXAS BUSINESS CORPORATION ACT OR (IV) THE PROCEEDING IS BROUGHT TO ESTABLISH OR
ENFORCE A RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER STATUTE OR
LAW OR OTHERWISE AS REQUIRED UNDER ARTICLE 2.02-1.
(B)
LACK OF GOOD FAITH.
THE COMPANY SHALL NOT BE OBLIGATED PURSUANT
TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY INDEMNITEE FOR ANY EXPENSES INCURRED
BY INDEMNITEE WITH RESPECT TO ANY PROCEEDING INSTITUTED BY THE INDEMNITEE TO
ENFORCE OR INTERPRET THIS AGREEMENT IF A COURT OF COMPETENT JURISDICTION
DETERMINES THAT EACH OF THE MATERIAL ASSERTIONS MADE BY INDEMNITEE IN SUCH
PROCEEDING WAS NOT MADE IN GOOD FAITH OR WAS FRIVOLOUS.
(C)
UNAUTHORIZED SETTLEMENTS.
THE COMPANY SHALL NOT BE OBLIGATED
PURSUANT TO THE TERMS OF THIS AGREEMENT TO INDEMNIFY INDEMNITEE UNDER THIS
AGREEMENT FOR ANY AMOUNTS PAID IN SETTLEMENT (WITHOUT THE AUTHORIZATION OF THE
COMPANY) OF A PROCEEDING UNLESS INDEMNITEE IN MAKING SUCH SETTLEMENT ACTED
REASONABLY AND IN GOOD FAITH.
9
SECTION 11.
MISCELLANEOUS.
(A)
NON-EXCLUSIVITY.
THE PROVISIONS FOR INDEMNIFICATION AND
ADVANCEMENT OF EXPENSES SET FORTH IN THIS AGREEMENT SHALL NOT BE DEEMED
EXCLUSIVE OF ANY OTHER RIGHTS WHICH INDEMNITEE MAY HAVE UNDER ANY PROVISION OF
LAW, THE DIRECTION (HOWSOEVER EMBODIED) OF ANY COURT OF COMPETENT JURISDICTION,
THE COMPANY'S ARTICLES OF INCORPORATION OR BYLAWS, THE VOTE OF THE COMPANY'S
SHAREHOLDERS OR DISINTERESTED DIRECTORS, OTHER AGREEMENTS, OR OTHERWISE, BOTH AS
TO ACTION IN INDEMNITEE'S OFFICIAL CAPACITY AND TO ACTION IN ANOTHER CAPACITY
WHILE OCCUPYING INDEMNITEE'S POSITION AS AN AGENT OF THE COMPANY, AND
INDEMNITEE'S RIGHTS HEREUNDER SHALL CONTINUE AFTER INDEMNITEE HAS CEASED ACTING
AS AN AGENT OF THE COMPANY AND SHALL INURE TO THE BENEFIT OF THE HEIRS,
EXECUTORS AND ADMINISTRATORS OF INDEMNITEE.
(B)
SUBROGATION.
IN THE EVENT OF PAYMENT UNDER THIS AGREEMENT, THE
COMPANY SHALL BE SUBROGATED