TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW IN EFFECT ON THE DATE HEREOF AND TO SUCH GREATER EXTENT AS
APPLICABLE LAW MAY THEREAFTER FROM TIME TO TIME PERMIT, WITHOUT REGARD TO WHEN
THE EVENT, CIRCUMSTANCE, ACTION OR CLAIM GIVING RISE TO A RIGHT OF
INDEMNIFICATION HEREUNDER AROSE, WHETHER BEFORE OR AFTER THE EFFECTIVE DATE OF
THIS AGREEMENT.
THE RIGHTS OF INDEMNITEE PROVIDED UNDER THE PRECEDING SENTENCE
SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THE RIGHT TO BE INDEMNIFIED AND TO
HAVE EXPENSES ADVANCED IN ALL PROCEEDINGS TO THE FULLEST EXTENT PERMITTED BY
ARTICLE 2.02-1 OF THE TBCA, BUT SUBJECT TO THE TERMS OF SECTION 4.3 BELOW.
THE
PROVISIONS SET FORTH IN THIS AGREEMENT ARE PROVIDED IN ADDITION TO AND AS A
MEANS OF FURTHERANCE AND IMPLEMENTATION OF, AND NOT IN LIMITATION OF, THE
OBLIGATIONS EXPRESSED IN THIS ARTICLE 3. NO REQUIREMENT, CONDITION TO OR
LIMITATION OF ANY RIGHT TO INDEMNIFICATION UNDER THIS ARTICLE 3, OR TO
ADVANCEMENT OF EXPENSES UNDER ARTICLES 3 AND 4 SHALL IN ANY WAY LIMIT THE RIGHTS
OF INDEMNITEE UNDER SECTION 7.3.
SECTION 3.2
ADDITIONAL INDEMNITY OF THE
CORPORATION.
INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATION PURSUANT TO THIS
SECTION 3.2, IF BY REASON OF INDEMNITEE'S CORPORATE STATUS, INDEMNITEE IS, OR IS
THREATENED TO BE MADE, A PARTY TO ANY PROCEEDING (EXCEPT TO THE EXTENT LIMITED
BY SECTION 3.3).
PURSUANT TO THIS SECTION 3.2, INDEMNITEE SHALL BE INDEMNIFIED
AGAINST EXPENSES, JUDGMENTS, PENALTIES (INCLUDING EXCISE OR SIMILAR TAXES),
FINES AND AMOUNTS PAID IN SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY
INDEMNITEE OR ON INDEMNITEE'S BEHALF IN CONNECTION WITH SUCH PROCEEDING OR ANY
CLAIM THEREIN, IF (A) INDEMNITEE CONDUCTED HIMSELF IN GOOD FAITH; (B) INDEMNITEE
WAS REASONABLY BELIEVED (I) IN THE CASE OF CONDUCT IN INDEMNITEE'S OFFICIAL
CAPACITY, THAT INDEMNITEE'S CONDUCT WAS IN THE CORPORATION'S BEST INTEREST; AND
(II) IN ALL OTHER CASES, THAT INDEMNITEE'S CONDUCT WAS AT LEAST NOT OPPOSED TO
THE CORPORATION'S BEST INTERESTS AND, (C) IN THE CASE OF ANY CRIMINAL
PROCEEDING, HAD NO REASONABLE CAUSE TO BELIEVE INDEMNITEE'S CONDUCT WAS
UNLAWFUL.
NOTHING IN THIS SECTION 3.2 SHALL LIMIT THE BENEFITS OF SECTION 3.1
OR ANY OTHER SECTION HEREUNDER.
SECTION 3.3
LIMITATION ON INDEMNITY.
THE
INDEMNIFICATION OTHERWISE AVAILABLE TO AN INDEMNITEE UNDER SECTIONS 3.1 AND 3.2
SHALL BE LIMITED TO THE EXTENT SET FORTH IN THIS SECTION 3.3.
IN THE EVENT THAT
AN INDEMNITEE IS FOUND LIABLE TO THE CORPORATION OR IS FOUND LIABLE ON THE BASIS
THAT PERSONAL BENEFIT WAS IMPROPERLY RECEIVED BY THE INDEMNITEE, WHETHER OR NOT
THE BENEFIT RESULTED FROM AN ACTION TAKEN IN INDEMNITEE'S OFFICIAL CAPACITY, THE
INDEMNITEE SHALL, WITH RESPECT TO THE CLAIM IN THE PROCEEDING IN WHICH SUCH
FINDING IS MADE, BE INDEMNIFIED ONLY AGAINST REASONABLE EXPENSES ACTUALLY
INCURRED BY HIM IN CONNECTION WITH THAT CLAIM.
NOTWITHSTANDING THE FOREGOING,
NO INDEMNIFICATION AGAINST EXPENSES SHALL BE MADE IN RESPECT OF ANY CLAIM IN
SUCH PROCEEDING (I) IN WHICH JUDGEMENT IS RENDERED AGAINST INDEMNITEE FOR AN
ACCOUNTING OF PROFITS MADE FROM THE PURCHASE OR SALE BY INDEMNITEE OF SECURITIES
OF THE