fraudulent
misrepresentation.
8.
NONEXCLUSIVITY.
THE INDEMNIFICATION
PROVIDED BY THIS AGREEMENT SHALL BE IN ADDITION TO ANY RIGHTS TO WHICH
INDEMNITEE MAY BE ENTITLED UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION (AS
AMENDED FROM TIME TO TIME, THE "CERTIFICATE OF INCORPORATION"), ITS BYLAWS, ANY
AGREEMENT, ANY VOTE OF STOCKHOLDERS OR DISINTERESTED DIRECTORS, THE DGCL, OR
OTHERWISE. THE INDEMNIFICATION PROVIDED UNDER THIS AGREEMENT SHALL CONTINUE AS
TO INDEMNITEE FOR ANY ACTION INDEMNITEE TOOK OR DID NOT TAKE WHILE SERVING IN AN
INDEMNIFIED CAPACITY EVEN THOUGH INDEMNITEE MAY HAVE CEASED TO SERVE IN SUCH
CAPACITY.
9.
NO DUPLICATION OF PAYMENTS.
THE COMPANY
SHALL NOT BE LIABLE UNDER THIS AGREEMENT TO MAKE ANY PAYMENT IN CONNECTION WITH
ANY PROCEEDING COMMENCED OR THREATENED AGAINST INDEMNITEE TO THE EXTENT
INDEMNITEE HAS OTHERWISE ACTUALLY RECEIVED PAYMENT (UNDER ANY INSURANCE POLICY,
THE CERTIFICATE OF INCORPORATION, THE BYLAWS OR OTHERWISE) OF THE AMOUNTS
OTHERWISE INDEMNIFIABLE HEREUNDER.
10.
MUTUAL ACKNOWLEDGEMENT.
THE COMPANY AND
INDEMNITEE ACKNOWLEDGE THAT IN CERTAIN INSTANCES, FEDERAL LAW OR APPLICABLE
PUBLIC POLICY MAY PROHIBIT THE COMPANY FROM INDEMNIFYING ITS DIRECTORS,
OFFICERS, EMPLOYEES, CONTROLLING PERSONS, AGENTS OR FIDUCIARIES UNDER THIS
AGREEMENT OR OTHERWISE.
EACH INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE
COMPANY HAS UNDERTAKEN OR MAY BE REQUIRED IN THE FUTURE TO UNDERTAKE WITH THE
SECURITIES AND EXCHANGE COMMISSION TO SUBMIT THE QUESTION OF INDEMNIFICATION TO
A COURT IN CERTAIN CIRCUMSTANCES FOR A DETERMINATION OF THE COMPANY'S RIGHTS
UNDER PUBLIC POLICY TO INDEMNIFY INDEMNITEE.
11.
EXCEPTIONS.
ANY OTHER PROVISION HEREIN TO THE
CONTRARY NOTWITHSTANDING, THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE
TERMS OF THIS AGREEMENT:
(A)
PROCEEDINGS INITIATED BY INDEMNITEE.
TO
INDEMNIFY OR ADVANCE EXPENSES TO INDEMNITEE WITH RESPECT TO PROCEEDINGS
INITIATED OR BROUGHT VOLUNTARILY BY INDEMNITEE AND NOT BY WAY OF DEFENSE, EXCEPT
(I) WITH RESPECT TO ACTIONS OR PROCEEDINGS TO ESTABLISH OR ENFORCE A RIGHT TO
INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSURANCE POLICY
OR UNDER THE CERTIFICATE OF INCORPORATION OR BYLAWS NOW OR HEREAFTER IN EFFECT
RELATING TO INDEMNIFICATION EVENTS, (II) IN SPECIFIC CASES IF THE BOARD HAS
APPROVED THE INITIATION OR BRINGING OF SUCH PROCEEDING, OR (III) AS OTHERWISE
REQUIRED UNDER SECTION 145 OF THE DGCL, REGARDLESS OF WHETHER INDEMNITEE
ULTIMATELY IS DETERMINED TO BE ENTITLED TO SUCH INDEMNIFICATION, ADVANCE EXPENSE
PAYMENT OR INSURANCE RECOVERY, AS THE CASE MAY BE; OR
(B)
PROCEEDINGS UNDER SECTION 16(B).
TO
INDEMNIFY INDEMNITEE FOR PROCEEDINGS ARISING FROM THE PURCHASE AND SALE BY
INDEMNITEE OF SECURITIES IN VIOLATION OF SECTION 16(B) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), OR ANY SIMILAR OR
SUCCESSOR STATUTE; OR
8
(C)
PROCEEDINGS EXCLUDED UNDER SECTION 145 OF
THE DGCL.
TO INDEMNIFY INDEMNITEE IF (I) INDEMNITEE DID NOT ACT IN GOOD FAITH
OR IN A MANNER REASONABLY BELIEVED BY SUCH INDEMNITEE TO BE IN OR NOT OPPOSED TO
THE BEST INTERESTS OF THE COMPANY, OR (II) WITH RESPECT TO ANY CRIMINAL OR CIVIL
ENFORCEMENT ACTION OR PROCEEDING, INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE
INDEMNITEE'S CONDUCT WAS UNLAWFUL, OR (III) INDEMNITEE IS ADJUDGED TO BE LIABLE