exclusions so as to provide an insufficient benefit, or the Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation. In the event the Corporation makes any such determination, it shall promptly (but not later than 10 days thereafter) notify the Indemnitee of that fact, and the resulting consequences on the existence or availability of D&O Insurance, in writing.
4. Mandatory Indemnification. The Corporation shall indemnify the Indemnitee:
(a) Third Party and Derivative Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to, or is otherwise involuntarily involved in, any proceeding (including any proceeding by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that Indemnitee is or was an agent of the Corporation, or by reason of anything done or not done by Indemnitee in any such capacity, the Corporation shall indemnify Indemnitee against any and all expenses and liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually and reasonably incurred by him in connection with the investigation, defense, settlement or appeal of such proceeding unless the Corporation proves by clear and convincing evidence, in accordance with the procedures set forth in Section 8 hereof, that Indemnitee did not act in good faith or in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe Indemnitees conduct was unlawful.
(b) Additional Indemnification. Notwithstanding any other provision of this Agreement, the Corporation hereby agrees to indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by the other provision of this Agreement, the Corporations Articles of Incorporation, the Corporations By-Laws or by statute. In the event of any change, after the date of this Agreement, in any applicable law, statute or rule which expands the right of a Delaware corporation to indemnify a member of its or a subsidiarys board of directors, such changes shall be, ipso facto, within the purview of Indemnitees rights and the Corporations obligations under this Agreement. In the event of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its or a subsidiarys board of directors, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties rights and obligations hereunder.
(c) Notwithstanding the foregoing, the Corporation shall not be obligated to indemnify the Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by D&O insurance.
5. Partial Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for some or a portion of any expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) incurred by him in the investigation, defense, settlement or appeal of a proceeding but not entitled, however, to indemnification for all of the total amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for such total amount except as to the portion thereof to which the Indemnitee is not entitled.
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