HAS ACTUALLY RECEIVED AS INDEMNIFICATION OR ADVANCEMENT OF EXPENSES FROM SUCH
OTHER PERSON.
9.
EXCEPTION TO RIGHT OF INDEMNIFICATION.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, THE COMPANY WILL NOT BE
OBLIGATED UNDER THIS AGREEMENT TO MAKE ANY INDEMNIFICATION IN CONNECTION WITH:
(A)
ANY CLAIM MADE AGAINST INDEMNITEE FOR WHICH
PAYMENT HAS ACTUALLY BEEN MADE TO OR ON BEHALF OF INDEMNITEE UNDER ANY INSURANCE
POLICY OR OTHER INDEMNITY PROVISION, EXCEPT WITH RESPECT TO ANY EXCESS BEYOND
THE AMOUNT PAID UNDER ANY INSURANCE POLICY OR OTHER INDEMNITY PROVISION;
(B)
ANY CLAIM MADE AGAINST INDEMNITEE FOR AN
ACCOUNTING OF PROFITS MADE FROM THE PURCHASE AND SALE (OR SALE AND PURCHASE) BY
INDEMNITEE OF SECURITIES OF THE COMPANY WITHIN THE MEANING OF SECTION 16(B) OF
THE EXCHANGE ACT OR SIMILAR PROVISIONS OF STATE LAW; OR
(C)
EXCEPT AS OTHERWISE PROVIDED IN SECTION 7,
ANY PROCEEDING (OR ANY PART OF ANY PROCEEDING) INITIATED BY INDEMNITEE,
INCLUDING ANY PROCEEDING (OR ANY PART OF ANY PROCEEDING) INITIATED BY INDEMNITEE
AGAINST THE COMPANY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER INDEMNITEES,
UNLESS (I) THE BOARD AUTHORIZED THE PROCEEDING (OR SUCH PART OF ANY PROCEEDING)
PRIOR TO ITS INITIATION, (II) SUCH INDEMNIFICATION IS EXPRESSLY REQUIRED TO BE
MADE BY APPLICABLE LAW, OR (III) THE COMPANY PROVIDES THE INDEMNIFICATION, IN
ITS SOLE DISCRETION, PURSUANT TO THE POWERS VESTED IN THE COMPANY UNDER
APPLICABLE LAW.
10.
DURATION OF AGREEMENT.
ALL AGREEMENTS AND
OBLIGATIONS OF THE COMPANY CONTAINED IN THIS AGREEMENT WILL CONTINUE DURING THE
PERIOD INDEMNITEE IS AN OFFICER OR DIRECTOR OF THE COMPANY (OR IS OR WAS SERVING
AT THE REQUEST OF THE COMPANY AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF
ANOTHER PERSON) AND WILL CONTINUE THEREAFTER SO LONG AS INDEMNITEE IS, OR MAY BE
MADE, THE SUBJECT TO ANY PROCEEDING (OR ANY PROCEEDING COMMENCED UNDER
SECTION 7) BY REASON OF HIS OR HER CORPORATE STATUS, REGARDLESS OF WHETHER HE OR
SHE IS ACTING OR SERVING IN ANY SUCH CAPACITY AT THE TIME ANY LIABILITY OR
EXPENSE IS INCURRED FOR WHICH INDEMNIFICATION CAN BE PROVIDED UNDER THIS
AGREEMENT.
THIS AGREEMENT WILL BE BINDING UPON AND INURE TO THE BENEFIT OF AND
BE ENFORCEABLE BY THE PARTIES AND THEIR RESPECTIVE SUCCESSORS (INCLUDING ANY
DIRECT OR INDIRECT SUCCESSOR BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE TO
ALL OR A MAJORITY OF THE BUSINESS OR ASSETS OR INCOME OR REVENUE GENERATING
CAPACITY OF THE COMPANY), ASSIGNS, SPOUSES, HEIRS, EXECUTORS, AND PERSONAL AND
LEGAL REPRESENTATIVES.
11.
RESERVED.
11
12.
ENFORCEMENT.
(A)
THE COMPANY EXPRESSLY CONFIRMS AND AGREES
THAT IT HAS ENTERED INTO THIS AGREEMENT AND ASSUMES THE OBLIGATIONS IMPOSED ON
IT BY THIS AGREEMENT IN ORDER TO INDUCE INDEMNITEE TO SERVE AS AN OFFICER OR
DIRECTOR OF THE COMPANY, AND THE COMPANY ACKNOWLEDGES THAT INDEMNITEE IS RELYING
UPON THIS AGREEMENT IN SERVING AS AN OFFICER OR DIRECTOR OF THE COMPANY.
(B)
SUBJECT TO SECTION 8(A) HEREOF, THIS
AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL, AND
CONTEMPORANEOUS ORAL, AGREEMENTS,