SUIT TO ENFORCE SUCH RIGHTS.
(C)
THE CORPORATION SHALL NOT BE LIABLE UNDER
THIS AGREEMENT TO MAKE ANY PAYMENT OF AMOUNTS OTHERWISE INDEMNIFIABLE HEREUNDER
IF AND TO THE EXTENT THAT INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED SUCH
PAYMENT UNDER ANY BY-LAW, INSURANCE POLICY, CONTRACT, AGREEMENT OR OTHERWISE.
SECTION 7.3
SELF-INSURANCE OF THE
CORPORATION.
(A)
THE PARTIES HERETO RECOGNIZE THAT THE
CORPORATION MAY, BUT IS NOT REQUIRED TO, PROCURE OR MAINTAIN INSURANCE OR OTHER
SIMILAR ARRANGEMENTS, AT ITS EXPENSE, TO PROTECT ITSELF AND ANY PERSON,
INCLUDING THE INDEMNITEE, WHO IS OR WAS A DIRECTOR, OFFICER, EMPLOYEE AGENT OR
FIDUCIARY OF THE CORPORATION OR WHO IS OR WAS SERVING AT THE REQUEST OF THE
CORPORATION AS A DIRECTOR, OFFICER, PARTNER, VENTURER, PROPRIETOR, TRUSTEE,
EMPLOYEE, AGENT OR SIMILAR FUNCTIONARY OF ANOTHER CORPORATION, PARTNERSHIP,
JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN OR OTHER ENTERPRISE AGAINST ANY
EXPENSE, LIABILITY OR LOSS ASSERTED AGAINST OR INCURRED BY SUCH PERSON, IN SUCH
A CAPACITY OR ARISING OUT OF HIS OR HER STATUS AS SUCH A PERSON, WHETHER OR NOT
THE CORPORATION WOULD HAVE THE POWER TO INDEMNIFY SUCH PERSON AGAINST SUCH
EXPENSE OR LIABILITY.
(B)
IN CONSIDERING THE COST AND AVAILABILITY OF
SUCH INSURANCE, THE CORPORATION, (THROUGH THE EXERCISE OF THE BUSINESS JUDGMENT
OF ITS DIRECTORS AND OFFICERS), FROM TIME TO TIME, MAY PURCHASE INSURANCE WHICH
PROVIDES FOR ANY AND ALL OF (I) DEDUCTIBLES, (II) LIMITS ON PAYMENTS REQUIRED TO
BE MADE BY THE INSURER OR (III) COVERAGE WHICH MAY NOT BE AS COMPREHENSIVE AS
THAT PREVIOUSLY INCLUDED IN INSURANCE PURCHASED BY THE CORPORATION OR ITS
PREDECESSORS.
THE PURCHASE OF INSURANCE WITH DEDUCTIBLES, LIMITS ON PAYMENTS
AND COVERAGE EXCLUSIONS, EVEN IF IN THE BEST INTEREST OF THE CORPORATION, MAY
NOT BE IN THE BEST INTEREST OF THE INDEMNITEE AND THE INDEMNITEE ACKNOWLEDGES
SUCH FACT. AS TO THE CORPORATION, PURCHASING INSURANCE WITH DEDUCTIBLES, LIMITS
ON PAYMENTS AND COVERAGE EXCLUSIONS IS SIMILAR TO THE CORPORATION'S PRACTICE OF
SELF-INSURANCE IN OTHER AREAS. IN ORDER TO PROTECT INDEMNITEE WHO WOULD
OTHERWISE BE MORE FULLY OR ENTIRELY COVERED UNDER SUCH POLICIES, THE CORPORATION
SHALL INDEMNIFY AND HOLD INDEMNITEE HARMLESS TO THE EXTENT (I) OF SUCH
DEDUCTIBLES, (II) OF AMOUNTS EXCEEDING PAYMENTS REQUIRED TO BE MADE BY AN
INSURER OR (III) THAT PRIOR POLICIES OF OFFICER'S AND DIRECTOR'S LIABILITY
INSURANCE HELD BY THE CORPORATION OR ITS PREDECESSORS WOULD HAVE PROVIDED FOR
PAYMENT TO INDEMNITEE, IF BY REASON OF INDEMNITEE'S CORPORATE STATUS INDEMNITEE
IS OR IS THREATENED TO BE MADE A PARTY TO ANY PROCEEDING.
THE OBLIGATION OF THE
CORPORATION IN THE PRECEDING SENTENCE SHALL BE WITHOUT REGARD TO WHETHER THE
CORPORATION WOULD OTHERWISE BE ENTITLED TO INDEMNIFY SUCH OFFICER OR DIRECTOR
UNDER THE OTHER PROVISIONS OF THIS AGREEMENT, OR UNDER ANY LAW, AGREEMENT, VOTE
OF SHAREHOLDERS OR DIRECTORS OR OTHER ARRANGEMENT.
NOTWITHSTANDING THE
FOREGOING PROVISIONS OF THIS SECTION 7.3, THE INDEMNITEE SHALL NOT BE ENTITLED
TO INDEMNIFICATION FOR THE RESULTS OF INDEMNITEE'S CONDUCT THAT IS INTENTIONALLY
ADVERSE TO THE INTERESTS OF THE CORPORATION.
WITHOUT LIMITING THE GENERALITY OF
ANY PROVISION OF THIS AGREEMENT, THE PROCEDURES