Common use of Exception to Right of Indemnification or Advancement of Expenses Clause in Contracts

Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement and except as provided in Section 7(a) of this Agreement or as may otherwise be agreed by the Company, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to (i) any Proceeding brought by Indemnitee (other than a Proceeding by Indemnitee (x) by way of defense or counterclaim, unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous, (y) to enforce Indemnitee’s rights under this Agreement or (z) to enforce any other rights of Indemnitee to indemnification, advancement or contribution from the Company under any other contract, Organizational Documents or under statute or other Law, including any rights under Section 145 of the General Corporation Law of the State of Delaware), unless the bringing of such Proceeding or making of such claim shall have been approved by the Board of Directors, (ii) any Proceeding in which a final non-appealable decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable Law, or (iii) the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.

Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement and except Except as provided in Section 7(a6(a) of this Agreement or as may otherwise be agreed by the CompanyAgreement, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement (including, with respect to subsection (ic) of this Section 14, payment of profits) with respect to any Proceeding (a) brought by Indemnitee (other than a Proceeding by Indemnitee to enforce his rights under this Agreement), (b) brought by the Company or any of its subsidiaries against the Indemnitee alleging (x) a willful violation by way of defense or counterclaim, unless a court of competent jurisdiction determines that each the Indemnitee of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolousterms and conditions of any employment contract, (y) to enforce Indemnitee’s rights under this Agreement a willful misappropriation of corporate assets by the Indemnitee or (z) to enforce any other rights willful and deliberate breach in bad faith of Indemnitee any of the Indemnitee's duties to indemnification, advancement or contribution from the Company under any other contract(or its subsidiaries) or its stockholders, Organizational Documents or under statute or other Law, including any rights under Section 145 of the General Corporation Law of the State of Delaware), unless if the bringing of such Proceeding or making of such claim against Indemnitee shall have been approved or subsequently ratified by the Board of DirectorsBoard, (iic) any Proceeding in which a final non-appealable decision by a court arising out of competent jurisdiction determines that such indemnification is prohibited by applicable Law, or (iii) the disgorgement of profits arising from the purchase or and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statutestatute or (d) arising out of acts or omissions, or transactions, from which Indemnitee may not be relieved of liability under applicable law.