OTHER PROVISION OF THIS AGREEMENT, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT INDEMNITEE IS, BY REASON OF
HIS CORPORATE STATUS, A WITNESS OR OTHERWISE ASKED TO PARTICIPATE IN ANY
PROCEEDING TO WHICH INDEMNITEE IS NOT A PARTY, HE SHALL BE INDEMNIFIED AGAINST
ALL EXPENSES ACTUALLY AND REASONABLY INCURRED BY HIM OR ON HIS BEHALF IN
CONNECTION THEREWITH.
SECTION 7.
PARTIAL INDEMNIFICATION.
IF INDEMNITEE IS ENTITLED
UNDER ANY PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME
OR A PORTION OF EXPENSES, BUT NOT, HOWEVER, FOR THE TOTAL AMOUNT THEREOF, THE
COMPANY SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION THEREOF TO WHICH
INDEMNITEE IS ENTITLED.
6
SECTION 8.
ADDITIONAL INDEMNIFICATION.
(A)
NOTWITHSTANDING ANY LIMITATION IN SECTIONS 3, 4, OR 5, THE COMPANY
SHALL INDEMNIFY INDEMNITEE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IF
INDEMNITEE IS A PARTY TO OR THREATENED TO BE MADE A PARTY TO ANY PROCEEDING
(INCLUDING A PROCEEDING BY OR IN THE RIGHT OF THE COMPANY TO PROCURE A JUDGMENT
IN ITS FAVOR) AGAINST ALL EXPENSES, JUDGMENTS, FINES AND AMOUNTS PAID IN
SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY INDEMNITEE IN CONNECTION WITH THE
PROCEEDING.
(B)
FOR PURPOSES OF SECTION 8(A), THE MEANING OF THE PHRASE "TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW" SHALL INCLUDE, BUT NOT BE LIMITED
TO:
I. TO THE FULLEST EXTENT PERMITTED BY THE PROVISION OF THE DGCL THAT AUTHORIZES
OR CONTEMPLATES ADDITIONAL INDEMNIFICATION BY AGREEMENT, OR THE CORRESPONDING
PROVISION OF ANY AMENDMENT TO OR REPLACEMENT OF THE DGCL, AND
II.
TO THE FULLEST EXTENT AUTHORIZED OR PERMITTED BY ANY
AMENDMENTS TO OR REPLACEMENTS OF THE DGCL ADOPTED AFTER THE DATE OF THIS
AGREEMENT THAT INCREASE THE EXTENT TO WHICH A CORPORATION MAY INDEMNIFY ITS
OFFICERS AND DIRECTORS.
SECTION 9.
EXCLUSIONS.
NOTWITHSTANDING ANY PROVISION IN THIS
AGREEMENT, THE COMPANY SHALL NOT BE OBLIGATED UNDER THIS AGREEMENT TO MAKE ANY
INDEMNITY IN CONNECTION WITH ANY CLAIM MADE AGAINST INDEMNITEE:
(A)
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; OR
(B)
FOR (I) 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 (AS DEFINED IN SECTION 2(B) HEREOF)
OR SIMILAR PROVISIONS OF STATE STATUTORY LAW OR COMMON LAW, OR (II) ANY
REIMBURSEMENT OF THE COMPANY BY THE INDEMNITEE OF ANY BONUS OR OTHER
INCENTIVE-BASED OR EQUITY-BASED COMPENSATION OR OF ANY PROFITS REALIZED BY THE
INDEMNITEE FROM THE SALE OF SECURITIES OF THE COMPANY, AS REQUIRED IN EACH CASE
UNDER THE EXCHANGE ACT (INCLUDING ANY SUCH REIMBURSEMENTS THAT ARISE FROM AN
ACCOUNTING RESTATEMENT OF THE COMPANY PURSUANT TO SECTION 304 OF THE
SARBANES-OXLEY ACT OF 2002 (THE "SARBANES-OXLEY ACT"), OR THE PAYMENT TO THE
COMPANY OF PROFITS ARISING FROM THE PURCHASE AND SALE BY