OFFICER.
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL HAVE NO OBLIGATION TO OBTAIN OR
MAINTAIN SUCH INSURANCE.
7.
SEVERABILITY.
NOTHING IN THIS AGREEMENT IS INTENDED TO REQUIRE
OR SHALL BE CONSTRUED AS REQUIRING THE COMPANY TO DO OR FAIL TO DO ANY ACT IN
VIOLATION OF APPLICABLE LAW.
THE COMPANY'S INABILITY, PURSUANT TO COURT ORDER,
TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT CONSTITUTE A BREACH OF
THIS AGREEMENT.
IF THIS AGREEMENT OR ANY PORTION HEREOF SHALL BE INVALIDATED ON
ANY GROUND BY ANY COURT OF COMPETENT JURISDICTION, THEN THE COMPANY SHALL
NEVERTHELESS INDEMNIFY INDEMNITEE TO THE FULL EXTENT PERMITTED BY ANY APPLICABLE
PORTION OF THIS AGREEMENT THAT SHALL NOT HAVE BEEN INVALIDATED, AND THE BALANCE
OF THIS AGREEMENT NOT SO INVALIDATED SHALL BE ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS.
8.
EXCEPTIONS.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE
CONTRARY, THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE TERMS OF THIS
AGREEMENT:
(A)
CLAIMS INITIATED BY INDEMNITEE.
TO INDEMNIFY OR ADVANCE EXPENSES
TO INDEMNITEE WITH RESPECT TO PROCEEDINGS OR CLAIMS INITIATED OR BROUGHT
VOLUNTARILY BY INDEMNITEE AND NOT BY WAY OF DEFENSE, EXCEPT WITH RESPECT TO
PROCEEDINGS BROUGHT TO ESTABLISH OR ENFORCE A RIGHT TO INDEMNIFICATION UNDER
THIS AGREEMENT OR ANY OTHER STATUTE OR LAW OR OTHERWISE AS REQUIRED UNDER
14A:3-5 OF THE NEW JERSEY BUSINESS CORPORATION ACT, BUT SUCH INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES MAY BE PROVIDED BY THE COMPANY IN SPECIFIC CASES IF THE
BOARD OF DIRECTORS HAS APPROVED THE INITIATION OR BRINGING OF SUCH SUIT; OR
(B)
LACK OF GOOD FAITH.
TO INDEMNIFY INDEMNITEE FOR ANY EXPENSES
INCURRED BY THE INDEMNITEE WITH RESPECT TO ANY PROCEEDING INSTITUTED BY
INDEMNITEE TO ENFORCE OR INTERPRET THIS AGREEMENT, IF A COURT OF COMPETENT
JURISDICTION DETERMINES THAT EACH OF THE MATERIAL
5
ASSERTIONS MADE BY THE INDEMNITEE IN SUCH PROCEEDING WAS NOT MADE IN GOOD FAITH
OR WAS FRIVOLOUS; OR
(C)
DUPLICATION OF PAYMENTS.
TO INDEMNIFY 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
ACTUALLY HAVE BEEN PAID TO INDEMNITEE UNDER A VALID AND COLLECTIBLE INSURANCE
POLICY, A PROVISION OF THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS, OR
ANOTHER VALID AND ENFORCEABLE INDEMNITY AGREEMENT; OR
(D)
CLAIMS UNDER SECTION 16(B) OF 1934 ACT.
TO INDEMNIFY INDEMNITEE
FOR EXPENSES AND AN ACCOUNTING OF PROFITS ARISING FROM THE PURCHASE AND SALE BY
INDEMNITEE OF SECURITIES IN VIOLATION OF SECTION 16(B) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, OR ANY SUCCESSOR STATUTE.
9.
EXCEPTIONS UNDER NEW JERSEY LAW.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, PURSUANT TO THE NEW JERSEY BUSINESS CORPORATION
ACT, NO INDEMNIFICATION SHALL BE MADE UNDER THIS AGREEMENT TO OR ON BEHALF OF
THE INDEMNITEE IF A JUDGMENT OR OTHER FINAL ADJUDICATION ADVERSE TO THE
INDEMNITEE ESTABLISHES THAT THE INDEMNITEE'S ACTS OR OMISSIONS (A) WERE IN
BREACH OF INDEMNITEE'S DUTY OF LOYALTY TO THE COMPANY OR ITS SHAREHOLDERS (AS
DEFINED IN 14A:2-7(3) OF THE NEW JERSEY BUSINESS CORPORATION