CERTAIN CIRCUMSTANCES
FOR A
9
determination of the Company's right under public policy to indemnify Indemnitee
and, in that event, the Indemnitee's rights and the Company's obligations
hereunder shall be subject to that determination.
17.
SUCCESSORS AND BINDING AGREEMENT.
(A)
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
COMPANY AND ANY SUCCESSOR TO THE COMPANY, INCLUDING, WITHOUT LIMITATION, ANY
PERSON ACQUIRING DIRECTLY OR INDIRECTLY ALL OR A SUBSTANTIAL PORTION /
MAJORITY?
OF THE BUSINESS OR ASSETS OF THE COMPANY WHETHER BY PURCHASE, MERGER,
CONSOLIDATION, REORGANIZATION OR OTHERWISE (AND SUCH SUCCESSOR WILL THEREAFTER
BE DEEMED THE "COMPANY" FOR PURPOSES OF THIS AGREEMENT), BUT SHALL NOT OTHERWISE
BE ASSIGNABLE OR DELEGATABLE BY THE COMPANY.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
INDEMNITEE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS,
HEIRS, DISTRIBUTEES, LEGATEES AND OTHER SUCCESSORS.
(C)
THIS AGREEMENT IS PERSONAL IN NATURE AND NEITHER OF THE PARTIES HERETO
SHALL, WITHOUT THE CONSENT OF THE OTHER, ASSIGN OR DELEGATE THIS AGREEMENT OR
ANY RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS
17(A) AND 17(B). WITHOUT LIMITING THE GENERALITY OR EFFECT OF THE FOREGOING,
INDEMNITEE'S RIGHT TO RECEIVE PAYMENTS HEREUNDER SHALL NOT BE ASSIGNABLE,
WHETHER BY PLEDGE, CREATION OF A SECURITY INTEREST OR OTHERWISE, OTHER THAN BY A
TRANSFER BY THE INDEMNITEE'S WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION,
AND, IN THE EVENT OF ANY ATTEMPTED ASSIGNMENT OR TRANSFER CONTRARY TO THIS
SECTION 17(C), THE COMPANY SHALL HAVE NO LIABILITY TO PAY ANY AMOUNT SO
ATTEMPTED TO BE ASSIGNED OR TRANSFERRED.
18.
NOTICES. FOR ALL PURPOSES OF THIS AGREEMENT, ALL COMMUNICATIONS,
INCLUDING WITHOUT LIMITATION NOTICES, CONSENTS, REQUESTS OR APPROVALS, REQUIRED
OR PERMITTED TO BE GIVEN HEREUNDER MUST BE IN WRITING AND SHALL BE DEEMED TO
HAVE BEEN DULY GIVEN WHEN HAND DELIVERED OR DISPATCHED BY ELECTRONIC FACSIMILE
TRANSMISSION (WITH RECEIPT THEREOF ORALLY CONFIRMED), OR ONE BUSINESS DAY AFTER
HAVING BEEN SENT FOR NEXT-DAY DELIVERY BY A NATIONALLY RECOGNIZED OVERNIGHT
COURIER SERVICE, ADDRESSED TO THE COMPANY (TO THE ATTENTION OF THE SECRETARY OF
THE COMPANY) AND TO INDEMNITEE AT THE APPLICABLE ADDRESS SHOWN ON THE SIGNATURE
PAGE HERETO, OR TO SUCH OTHER ADDRESS AS ANY PARTY MAY HAVE FURNISHED TO THE
OTHER IN WRITING AND IN ACCORDANCE HEREWITH, EXCEPT THAT NOTICES OF CHANGES OF
ADDRESS WILL BE EFFECTIVE ONLY UPON RECEIPT.
19.
GOVERNING LAW. THE VALIDITY, INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICT OF LAWS OF SUCH STATE. THE COMPANY AND INDEMNITEE EACH
HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF THE CHANCERY COURT OF THE
STATE OF DELAWARE FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING
WHICH ARISES OUT OF OR RELATES TO THIS AGREEMENT, WAIVE ALL PROCEDURAL
OBJECTIONS TO SUIT IN THAT JURISDICTION, INCLUDING, WITHOUT LIMITATION,
OBJECTIONS AS TO VENUE OR INCONVENIENCE, AGREE THAT SERVICE IN ANY SUCH ACTION
MAY BE