Common use of Prohibited Indemnification Clause in Contracts

Prohibited Indemnification. No indemnification pursuant to this Agreement shall be paid by the Company on account of: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent or to constitute willful misconduct; (b) any Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (c) conduct for which payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control).

Prohibited Indemnification. No Subject only to Section 2.4 below, if applicable, no indemnification nor Expense Advance (as defined below) pursuant to this Agreement shall be paid by the Company on account of▇▇▇▇▇▇▇ RentCorp: 2.3.1 In connection with any Proceeding initiated by Officer/Director against ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any director or officer of ▇▇▇▇▇▇▇ RentCorp unless: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent ▇▇▇▇▇▇▇ RentCorp has joined in, or to constitute willful misconduct; the Board has consented to, the initiation of such Proceeding; (b) the Proceeding is one to enforce indemnification rights under this Agreement or any other agreement or insurance policy or under ▇▇▇▇▇▇▇ RentCorp’s Articles of Incorporation or Bylaws; or (c) the Proceeding is instituted after a Change in Control and Independent Counsel has approved its initiation; MCG5 325 02.1 Indemnification Agreement BMS 072617 Officer/Director/ ▇▇▇▇▇▇▇ RentCorp 2.3.2 On account of any Proceeding in which judgment is rendered against the Indemnitee Officer/Director for an accounting of profits made from the purchase or sale by the Indemnitee Officer/Director of securities of the Company ▇▇▇▇▇▇▇ RentCorp pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory lawlaws; 2.3.3 To the extent Officer/Director settles or otherwise disposes of a Proceeding or causes the settlement or disposal of a Proceeding without ▇▇▇▇▇▇▇ RentCorp’s express prior written consent (c) conduct which shall not be unreasonably withheld), unless Officer/Director receives court approval for such settlement or other disposition where ▇▇▇▇▇▇▇ RentCorp had the opportunity to oppose Officer/Director’s request for such court approval or the settlement is approved by Independent Counsel; 2.3.4 With regard to any judicial award if ▇▇▇▇▇▇▇ RentCorp was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action unless ▇▇▇▇▇▇▇ RentCorp’s participation in such Proceeding was barred by this Agreement or the court in such Proceeding; or 2.3.5 For any acts, omissions, transactions or circumstances for which payment indemnification is actually made prohibited by applicable state or federal law. For convenience only, a copy of Sections 204(a)(10), 204(a)(11) and 317 of the California Corporations Code, the principal provisions which limit Officer/Director’s right to the Indemnitee under a valid and collectible insurance policy indemnification, is included as Appendix A hereto. Officer/Director is cautioned that indemnification may be further limited by any changes to such laws or under a valid and enforceable indemnity clause, by-law or agreement, except in respect any other applicable law. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is not obligated to notify Officer/Director of any indemnity exceeding the payment under such insurancechanges. Further, clause, by-law or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Indemnitee have been Officer/Director are advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control)unenforceable.

Prohibited Indemnification. No indemnification pursuant to this Agreement Deed shall be paid by the Company on account ofCompany: (ai) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent or to constitute willful misconduct; (b) on account of any Proceeding in which a final and non-appealable judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions provision of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions provision of any federal, state state, or local statutory lawlaws; (c) conduct for which payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (dii) if a final decision court of competent jurisdiction by a court having jurisdiction in the matter final and non-appealable judicial determination, shall determine that such indemnification is not lawful permitted under applicable law; (and, in this respect, both the Company and iii) on account of any Proceeding relating to an Indemnifiable Event to which the Indemnitee have has been advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising convicted of a crime constituting a felony under the federal securities laws of the jurisdiction where the criminal action had been brought (or, where a jurisdiction does not classify any crime as a felony, a crime which the Indemnitee is against public policy and is, therefore, unenforceable and (ii) claims sentenced to imprisonment for indemnification should be submitted to the appropriate court for adjudicationa term exceeding one year); or (eiv) in respect of any proceeding (fraud, dishonesty or part thereof) by intentional or grossly negligent breach of duties of which the Indemnitee against may be guilty in relation to the Company; (v) that is expressly prohibited by applicable law (including, with respect to any director or secretary, in respect of any liability expressly prohibited from being indemnified or otherwise limited, including pursuant to section 235 of the Companies Act (including any successor provisions)), but (i) in no way limiting any rights under sections 233 and 234 of the Companies Act (including any successor provisions) or (ii) to the extent any such limitations or prescriptions are amended or determined by a court of competent jurisdiction to be void or inapplicable, or relief to the contrary is granted, then the Indemnitee shall receive the greatest rights then available under law; or (vi) on account of any Proceedings brought by the Company or any of its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) Subsidiaries against the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control)Indemnitee.

Prohibited Indemnification. No indemnification pursuant to this Agreement shall be paid by the Company on account of: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent or to constitute willful misconduct; (b) any Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (c) any Proceeding in which judgment is rendered against the Indemnitee for reimbursement to the Company of any bonus or other incentive-based or equity-based compensation as required under the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (d) conduct for which payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (de) if a final decision by a court having jurisdiction in the matter shall determine determining that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (ef) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1i) such indemnification is expressly required to be made by law, (2ii) the proceeding was authorized by the Board, (3iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4iv) to establish or enforce a right to indemnify indemnity under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect Bylaws or (5v) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control).

Prohibited Indemnification. No indemnification pursuant to Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement shall be paid by the Company on account ofto make any indemnity in connection with any claim made against Indemnitee: 1. 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 such insurance policy or other indemnity provision, provided, that the foregoing shall not affect the rights of Indemnitee; or 2. for (ai) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent or to constitute willful misconduct; (b) any Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company pursuant to within the provisions meaning of Section 16(b) of the U.S. Securities Exchange Act of 1934 and amendments thereto 1934, as amended (the “Exchange Act”), or similar provisions of state statutory law or common law, (ii) any federalreimbursement 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, state 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 U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (“SOX” ), or local statutory law; (c) conduct for which the payment is actually made to the Company of profits arising from the purchase and sale by Indemnitee under a valid and collectible insurance policy of securities in violation of Section 306 of SOX) or under a valid and enforceable indemnity clause, by-law or agreement, except in respect (iii) any reimbursement of the Company by Indemnitee of any indemnity exceeding compensation pursuant to any compensation recoupment or claw-back policy adopted by Parent or the payment under Compensation Committee of the Parent Board, including but not limited to any such insurancepolicy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or 3. in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, clauseincluding any Proceeding (or any part of any Proceeding) initiated by Indemnitee against Parent, by-law any of its subsidiaries and/or any Additional Enterprise, or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that any director, officer, Secretary, agent, employee, fiduciary or other indemnitee of such indemnification is not lawful (andentities, in this respect, both the Company and the Indemnitee have been advised that the Securities and Exchange Commission believes that unless (i) indemnification for liabilities arising under the federal securities laws is against public policy and isParent Board or the Additional Enterprise, thereforeas the case may be, unenforceable and authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) such indemnity payment arises in connection with any proceeding mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part thereofof any Proceeding), (iii) the Proceeding is initiated by the Indemnitee against pursuant to Indemnitee’s rights under Section 4(g) (Adjudication) of this Agreement or (iv) the Company or its directors, officers, employees, or other indemnitees, unless (1) such elects to provide the indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (; or 4) to establish or enforce . if a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate court of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved competent jurisdiction by a majority of the directors on the Board who were directors immediately prior to final and non-appealable judgment, shall determine that such Change in Control)indemnification is not permitted under applicable law.

Prohibited Indemnification. No indemnification pursuant to this Agreement shall be paid by the Company on account of: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent or to constitute willful misconduct; (b) of any Proceeding in which a final judgment is rendered against the Indemnitee or Indemnitee enters into a settlement, in each case (i) for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; laws; (cii) conduct 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; (iii) for any Expenses incurred by Indemnitee in connection with any Proceeding to enforce indemnification rights or insurance recovery under Section 5 where it has been ultimately determined that Indemnitee is not entitled to such indemnification or insurance recovery; (iv) for any Expenses incurred by Indemnitee in connection with any Proceeding to enforce against Indemnitee non-compete or non-disclosure agreements or the non-compete or non-disclosure provisions of any employment, consulting or other similar agreement the Indemnitee may be a party to with the Company or any of its Affiliates; or (v) for which payment is actually made prohibited by law. Notwithstanding anything to the Indemnitee under a valid and collectible insurance policy contrary stated or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, implied in this respectSection 2(f), both indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company and the Indemnitee have been advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4provisions of Section 16(b) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on Exchange Act or similar provisions of any federal, state or local laws shall not be prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) of the Board who were directors immediately prior to such Change in Control)Exchange Act or similar provisions of any federal, state or local laws.

Prohibited Indemnification. No Subject only to Section 2.4 below, if applicable, no indemnification nor Expense Advance (as defined below) pursuant to this Agreement shall be paid by the Company on account ofMcGrath RentCorp: 2.3.1 In connection with any Procee▇▇▇▇ ▇▇itiated by Xxxxxx against McGrath RentCorp or any director or officer of McGrath RentCorp (othe▇ ▇▇▇▇ by way of defense, counter claim or cros▇ ▇▇▇▇▇ which arises by reason of or in part out of an Indemnifiable Event), unless: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent McGrath RentCorp has joined in, or to constitute willful misconduct; the Board has consented to, the in▇▇▇▇▇▇▇n of such Proceeding; (b) the Proceeding is one to enforce indemnification rights under this Agreement or any other agreement or insurance policy or under McGrath RentCorp's Articles of Incorporation or Bylaws; or (c) the Pr▇▇▇▇▇▇▇g is instituted after a Change in Control and Independent Counsel has approved its initiation; 2.3.2 On account of any Proceeding in which judgment is rendered against the Indemnitee Xxxxxx for an accounting of profits made from the purchase or sale by the Indemnitee Xxxxxx of securities of the Company McGrath RentCorp pursuant to the provisions of Section 16(b) of the Securities S▇▇▇▇▇▇▇es Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state or local statutory lawlaws; 2.3.3 To the extent Xxxxxx settles or otherwise disposes of a Proceeding or causes the settlement or disposal of a Proceeding without McGrath RentCorp's express prior written consent (c) conduct which shall not be ▇▇▇▇▇▇▇nably withheld), unless Xxxxxx receives court approval for such settlement or other disposition where McGrath RentCorp had the opportunity to oppose Xxxxxx's request for s▇▇▇ ▇▇▇rt approval or the settlement is approved by Independent Counsel; 2.3.4 With regard to any judicial award if McGrath RentCorp was not given a reasonable and timely opportunity, a▇ ▇▇▇ ▇xpense, to participate in the defense of such action unless McGrath RentCorp's participation in such Proceeding was barred by thi▇ ▇▇▇▇▇ment or the court in such Proceeding; or 2.3.5 For any acts, omissions, transactions or circumstances for which payment is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (andprohibited by applicable state or federal law. For convenience only, in this respecta copy of Sections 204(a)(10), both 204(a)(11) and 317 of the Company California Corporations Code, the principal provisions which limit Xxxxxx's right to indemnification, is included as Appendix A hereto. Xxxxxx is cautioned that indemnification may be further limited by any changes to such laws or any other applicable law. MCGRATH RENTCORP IS NOT OBLIGATED TO NOTIFY XXXXXX OF ANY SUCH CHANGE▇. ▇▇▇▇her, McGrath RentCorp and the Indemnitee have been Xxxxxx are advised that the Securities and Exchange Commission Excha▇▇▇ ▇▇▇mission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control)unenforceable.

Prohibited Indemnification. No Subject only to Section 2.4 below, if applicable, no indemnification nor Expense Advance pursuant to this Agreement shall be paid by the Company on account ofMcGr▇▇▇ ▇▇▇tCorp: 2.3.1 In connection with any Proceeding initiated by Indemnitee against McGr▇▇▇ ▇▇▇tCorp or any director or officer of McGr▇▇▇ ▇▇▇tCorp unless: (a) Indemnitee’s conduct that is finally adjudged to have been knowingly fraudulent McGr▇▇▇ ▇▇▇tCorp has joined in, or to constitute willful misconduct; the Board has consented to, the initiation of such Proceeding; (b) the Proceeding is one to enforce indemnification rights under Section 6; or (c) the Proceeding is instituted after a Change in Control and Independent Counsel has approved its initiation; 2.3.2 On account of any Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company McGr▇▇▇ ▇▇▇tCorp pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto 1934, as amended, or similar provisions of any federal, state, or local laws; 2.3.3 To the extent Indemnitee settles or otherwise disposes of a Proceeding or causes the settlement or disposal of a Proceeding without McGr▇▇▇ ▇▇▇tCorp's express prior written consent (which shall not be unreasonably withheld) unless Indemnitee receives court approval for such settlement or other disposition where McGr▇▇▇ ▇▇▇tCorp had the opportunity to oppose Indemnitee's request for such court approval or the settlement is approved by Independent Counsel; 2.3.4 With regard to any judicial award if McGr▇▇▇ ▇▇▇tCorp was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action unless McGr▇▇▇ ▇▇▇tCorp's participation in such Proceeding was barred by this Agreement or the court in such Proceeding; nor 2.3.5 For any acts, omissions, transactions or circumstances for which indemnification is prohibited by applicable state or local statutory federal law; (c. For the convenience of Indemnitee, copies of Sections 204(a) conduct for and Section 317 of the California Corporations Code, the principal provisions which payment limit Indemnitee's right to indemnification, are provided to Indemnitee with this Agreement. Indemnitee is actually made cautioned that indemnification may be further limited by any changes to the such laws or any other applicable law. McGr▇▇▇ ▇▇▇tCorp IS NOT OBLIGATED TO NOTIFY INDEMNITEE OF ANY SUCH CHANGES; further, McGr▇▇▇ ▇▇▇tCorp and Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement; (d) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been are advised that the Securities and Exchange Commission believes that (i) indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and (ii) claims for indemnification should be submitted to the appropriate court for adjudication); or (e) any proceeding (or part thereof) by the Indemnitee against the Company or its directors, officers, employees, or other indemnitees, unless (1) such indemnification is expressly required to be made by law, (2) the proceeding was authorized by the Board, (3) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (4) to establish or enforce a right to indemnify under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or By-laws now or hereafter in effect or (5) the Proceeding is instituted after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control)unenforceable.