AND ENFORCEABLE AND SHALL
STIPULATE IN ANY SUCH COURT THAT THE COMPANY IS BOUND BY ALL THE PROVISIONS OF
THIS AGREEMENT.
5.
CONTINUATION OF INDEMNITY. ALL AGREEMENTS AND OBLIGATIONS OF THE
COMPANY CONTAINED HEREIN SHALL CONTINUE DURING THE PERIOD INDEMNITEE IS A
DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE COMPANY (OR IS OR WAS SERVING AT THE
REQUEST OF THE COMPANY AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF OTHER
ENTERPRISES) AND SHALL CONTINUE THEREAFTER, SO LONG AS INDEMNITEE SHALL BE
SUBJECT TO ANY POSSIBLE CLAIM OR THREATENED, PENDING OR COMPLETED ACTION, SUIT
OR PROCEEDING, WHETHER CIVIL, CRIMINAL OR INVESTIGATIVE, BY REASON OF THE FACT
THAT INDEMNITEE WAS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE COMPANY OR
SERVING IN ANY OTHER CAPACITY REFERRED TO HEREIN.
6.
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 IN THE INVESTIGATION, DEFENSE, APPEAL OR SETTLEMENT OF ANY CIVIL
OR CRIMINAL ACTION, SUIT OR PROCEEDING, BUT NOT 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.
7.
MUTUAL ACKNOWLEDGMENT. BOTH THE COMPANY AND INDEMNITEE
ACKNOWLEDGE THAT, IN CERTAIN INSTANCES, FEDERAL LAW OR PUBLIC POLICY MAY
OVERRIDE APPLICABLE STATE LAW AND PROHIBIT THE COMPANY FROM INDEMNIFYING ITS
DIRECTORS AND OFFICERS UNDER THIS AGREEMENT OR OTHERWISE. FOR EXAMPLE, THE
COMPANY AND INDEMNITEE ACKNOWLEDGE THAT THE SECURITIES AND EXCHANGE COMMISSION
(THE "SEC") HAS TAKEN THE POSITION THAT INDEMNIFICATION IS NOT PERMISSIBLE FOR
LIABILITIES ARISING UNDER CERTAIN FEDERAL SECURITIES LAWS, AND FEDERAL
LEGISLATION PROHIBITS INDEMNIFICATION FOR CERTAIN VIOLATIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974 ("ERISA").
INDEMNITEE UNDERSTANDS AND
ACKNOWLEDGES THAT THE COMPANY HAS UNDERTAKEN WITH THE SEC TO SUBMIT THE QUESTION
OF INDEMNIFICATION TO A COURT IN CERTAIN CIRCUMSTANCES FOR A DETERMINATION OF
THE COMPANY'S RIGHT UNDER PUBLIC POLICY TO INDEMNIFY INDEMNITEE.
8.
OFFICER AND DIRECTOR LIABILITY INSURANCE. THE COMPANY SHALL, FROM
TIME TO TIME, MAKE THE GOOD FAITH DETERMINATION WHETHER OR NOT IT IS PRACTICABLE
FOR THE COMPANY TO OBTAIN AND MAINTAIN A POLICY OR POLICIES OF INSURANCE WITH
REPUTABLE INSURANCE COMPANIES PROVIDING THE OFFICERS AND DIRECTORS OF THE
COMPANY WITH COVERAGE FOR LOSSES FROM WRONGFUL ACTS, OR TO ENSURE THE COMPANY'S
PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
AMONG
OTHER CONSIDERATIONS, THE COMPANY WILL WEIGH THE COSTS OF OBTAINING SUCH
INSURANCE COVERAGE AGAINST THE PROTECTION AFFORDED BY SUCH COVERAGE. IN ALL
POLICIES OF DIRECTORS' AND OFFICERS' LIABILITY INSURANCE, INDEMNITEE SHALL BE
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 OFFICER; OR ONE OF THE COMPANY'S KEY
EMPLOYEES, IF INDEMNITEE IS NOT AN OFFICER OR DIRECTOR BUT IS A