Covered Claim. Shall mean any claim against Indemnitee based upon or arising out of any past, present or future act, omission, neglect or breach of duty, including any actual or alleged error, misstatement or misleading statement, which Indemnitee may commit, omit or suffer while acting in his or her capacity as a director and/or officer of the Company or its subsidiaries and solely because of being a director and/or officer of the Company or its subsidiaries; provided, however, that a Covered Claim shall not
... include any amounts paid or payable by Indemnitee with respect to any claim that: (i) is based upon and arises out of Indemnitee gaining in fact any personal profit or advantage to which Indemnitee is not legally entitled; -1- (ii) is for an accounting of profits in fact made from the purchase or sale by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of any state law; or (iii) is based upon and arises out of Indemnitee's knowingly fraudulent, deliberately dishonest or willful misconduct. A Covered Claim shall include any claim made against the lawful spouse (whether such status is derived by reason of statutory law, common law or otherwise of any applicable jurisdiction in the world) of Indemnitee for claims arising solely out of Indemnitee's capacity as the spouse of Indemnitee, including such claims that seek damages recoverable from marital community property, property jointly held by Indemnitee and the spouse or property transferred from Indemnitee to the spouse; provided, however, that a Covered Claim shall not include any claim for any actual or alleged wrongful act of the spouse. To the extent necessary to carry out the terms of this paragraph, the term "Indemnitee" as used in this Indemnity Agreement shall include the Indemnitee's spouse.
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