THE INDEMNIFICATION PROVIDED BY THIS AGREEMENT
SHALL NOT BE DEEMED EXCLUSIVE OF ANY RIGHTS TO WHICH INDEMNITEE MAY BE ENTITLED
UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION, BYLAWS, ANY OTHER AGREEMENT,
ANY VOTE OR APPROVAL OF COMPANY STOCKHOLDERS OR DISINTERESTED DIRECTORS, NEW
JERSEY LAW, OR OTHERWISE, BOTH AS TO ACTION IN INDEMNITEE'S OFFICIAL CAPACITY
AND AS TO ACTION IN ANOTHER CAPACITY WHILE HOLDING SUCH OFFICE.
(C)
CONTINUING RIGHT.
ALL AGREEMENTS AND OBLIGATIONS OF THE COMPANY
INCLUDED HEREIN SHALL CONTINUE DURING THE PERIOD INDEMNITEE IS A DIRECTOR,
OFFICER, EMPLOYEE OR OTHER AGENT OF THE COMPANY AND SHALL CONTINUE THEREAFTER AS
LONG AS INDEMNITEE IS SUBJECT TO ANY POSSIBLE CLAIM, ACTION, SUIT, PROCEEDING OR
ANY ARBITRATION OR OTHER ALTERNATIVE DISPUTE RESOLUTION MECHANISM, WHETHER
CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE, BY REASON OF THE FACT THAT
INDEMNITY WAS SERVING IN THE CAPACITY REFERRED TO HEREIN.
4.
PARTIAL INDEMNIFICATION.
IF INDEMNITEE IS ENTITLED UNDER ANY
PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE COMPANY FOR SOME OR A
PORTION OF THE EXPENSES, JUDGMENTS, FINES OR PENALTIES ACTUALLY OR REASONABLY
INCURRED BY HIM OR HER IN THE INVESTIGATION, DEFENSE, APPEAL OR SETTLEMENT OF
ANY CIVIL OR CRIMINAL ACTION, SUIT OR PROCEEDING, BUT NOT, HOWEVER, FOR THE
TOTAL AMOUNT THEREOF, THE COMPANY SHALL NEVERTHELESS INDEMNIFY INDEMNITEE FOR
THE PORTION OF SUCH EXPENSES, JUDGMENTS, FINES OR PENALTIES TO WHICH INDEMNITEE
IS ENTITLED.
4
5.
MUTUAL ACKNOWLEDGEMENT.
EACH OF THE COMPANY AND INDEMNITEE
ACKNOWLEDGES THAT IN CERTAIN INSTANCES, FEDERAL LAW OR APPLICABLE PUBLIC POLICY
MAY PROHIBIT THE COMPANY FROM PROVIDING INDEMNIFICATION UNDER THIS AGREEMENT OR
OTHERWISE.
IN PARTICULAR, THE COMPANY AND INDEMNITEE ACKNOWLEDGE THAT THE
SECURITIES AND EXCHANGE COMMISSION BELIEVES THAT INDEMNIFICATION FOR LIABILITIES
ARISING UNDER THE FEDERAL SECURITIES LAWS IS AGAINST PUBLIC POLICY AND,
THEREFORE, IS UNENFORCEABLE.
INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE
COMPANY HAS UNDERTAKEN OR MAY BE REQUIRED IN THE FUTURE TO UNDERTAKE WITH THE
SECURITIES AND EXCHANGE COMMISSION TO SUBMIT THE QUESTION OF INDEMNIFICATION TO
A COURT IN CERTAIN CIRCUMSTANCES FOR A DETERMINATION REGARDING THE COMPANY'S
RIGHT, IN VIEW OF SUCH PUBLIC POLICY CONSIDERATIONS, TO INDEMNIFY INDEMNITEE.
6.
OFFICER AND DIRECTOR LIABILITY INSURANCE.
THE COMPANY MAY, FROM
TIME TO TIME, MAKE A DETERMINATION WHETHER OR NOT IT IS PRACTICABLE FOR THE
COMPANY TO OBTAIN AND MAINTAIN A POLICY OR POLICIES OF INSURANCE WITH INSURANCE
COMPANIES PROVIDING THE DIRECTORS AND OFFICERS OF THE COMPANY WITH COVERAGE FOR
LOSSES IN CONNECTION WITH ACTS OR OMISSIONS BY SUCH DIRECTORS AND OFFICERS, OR
TO ENSURE THE COMPANY'S PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS UNDER
THIS AGREEMENT.
AMONG OTHER CONSIDERATIONS, THE COMPANY MAY WEIGH THE COSTS OF
OBTAINING SUCH INSURANCE COVERAGE AGAINST THE PROTECTION AFFORDED BY SUCH
COVERAGE.
IN ALL POLICIES OF DIRECTOR AND OFFICER LIABILITY INSURANCE,
INDEMNITEE WILL BE NAMED AS AN INSURED IN SUCH A MANNER AS TO PROVIDE INDEMNITEE
THE SAME RIGHTS AND BENEFITS AS ARE ACCORDED TO THE MOST FAVORABLY INSURED OF
THE COMPANY'S DIRECTORS, IF INDEMNITEE IS A DIRECTOR; OR OF THE COMPANY'S
OFFICERS, IF INDEMNITEE IS NOT A DIRECTOR OF THE COMPANY BUT IS AN