THE COMPANY, OR FOR ANY SIMILAR REASON.
8.
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.
THE PROVISIONS OF THIS AGREEMENT SHALL BE SEVERABLE AS PROVIDED
IN THIS SECTION 8.
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 FULLEST 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.
9.
EXCEPTIONS.
ANY OTHER PROVISION HEREIN TO THE CONTRARY
NOTWITHSTANDING, THE COMPANY SHALL NOT BE OBLIGATED PURSUANT TO THE TERMS OF
THIS AGREEMENT:
(A)
EXCLUDED ACTS.
TO INDEMNIFY INDEMNITEE FOR ANY ACTS OR OMISSIONS
OR TRANSACTIONS FROM WHICH A DIRECTOR OR OFFICER MAY NOT BE RELIEVED OF
LIABILITY UNDER APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, THE DELAWARE
GENERAL CORPORATION LAW AND THE FEDERAL BANKING LAWS); OR
(B)
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 OR
ADVANCEMENT OF EXPENSES UNDER THIS AGREEMENT OR ANY OTHER STATUTE OR LAW OR
OTHERWISE AS REQUIRED UNDER §145 OF THE DELAWARE GENERAL CORPORATION LAW (OR ANY
SIMILAR SUCCESSOR STATUTE), BUT SUCH INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
MAY BE PROVIDED BY THE COMPANY IN SPECIFIC CASES IF THE BOARD OF DIRECTORS OF
THE COMPANY HAS APPROVED THE INITIATION OR BRINGING OF SUCH SUIT; OR
7
(C)
LACK OF GOOD FAITH.
TO INDEMNIFY INDEMNITEE FOR ANY EXPENSES
INCURRED BY 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 ASSERTIONS MADE BY INDEMNITEE IN SUCH
PROCEEDING WAS NOT MADE IN GOOD FAITH OR WAS FRIVOLOUS; OR
(D)
CLAIMS UNDER SECTION 16(B).
TO INDEMNIFY INDEMNITEE FOR EXPENSES
AND THE PAYMENT OF PROFITS ARISING FROM THE PURCHASE AND SALE, OR THE SALE AND
PURCHASE, BY INDEMNITEE OF SECURITIES IN VIOLATION OF SECTION 16(B) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, OR ANY SIMILAR SUCCESSOR STATUTE.
10.
EFFECTIVENESS OF AGREEMENT.
THIS AGREEMENT SHALL BE EFFECTIVE AS
OF THE DATE SET FORTH ON THE FIRST PAGE AND MAY APPLY TO ACTS OR OMISSIONS OF
INDEMNITEE WHICH OCCURRED PRIOR TO SUCH DATE IF INDEMNITEE WAS AN OFFICER,
DIRECTOR, EMPLOYEE OR AGENT OF THE COMPANY AND/OR ANY OF ITS SUBSIDIARIES, OR
WAS SERVING AT THE REQUEST OF THE COMPANY AS DIRECTOR, OFFICER, EMPLOYEE OR
AGENT OF ANY OTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP, JOINT VENTURE,
TRUST OR OTHER ENTERPRISE, AT THE TIME SUCH