MUTUAL ACKNOWLEDGEMENT. BOTH THE COMPANY AND INDEMNITEE
ACKNOWLEDGE THAT IN CERTAIN INSTANCES, FEDERAL LAW OR APPLICABLE PUBLIC POLICY
MAY PROHIBIT THE COMPANY FROM INDEMNIFYING ITS DIRECTORS AND OFFICERS UNDER THIS
AGREEMENT OR OTHERWISE. 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 OF THE COMPANY'S RIGHT UNDER PUBLIC
POLICY TO INDEMNIFY INDEMNITEE.
6.
DIRECTORS' AND OFFICERS' 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 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
OFFICER; OR OF THE COMPANY'S KEY EMPLOYEES, IF INDEMNITEE IS NOT AN OFFICER OR
DIRECTOR BUT IS A KEY EMPLOYEE. NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL
HAVE NO OBLIGATION TO OBTAIN OR MAINTAIN SUCH INSURANCE IF THE COMPANY
DETERMINES IN GOOD FAITH THAT SUCH INSURANCE IS NOT REASONABLY AVAILABLE, IF THE
PREMIUM COSTS FOR SUCH INSURANCE ARE DISPROPORTIONATE TO THE AMOUNT OF COVERAGE
PROVIDED, IF THE COVERAGE PROVIDED BY SUCH INSURANCE IS LIMITED BY EXCLUSIONS SO
AS TO
-4-
PROVIDE AN INSUFFICIENT BENEFIT, OR IF INDEMNITEE IS COVERED BY SIMILAR
INSURANCE MAINTAINED BY A SUBSIDIARY OR PARENT OF THE COMPANY.
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. THE PROVISIONS OF THIS AGREEMENT SHALL BE SEVERABLE AS PROVIDED
IN THIS SECTION 7. 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. 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