AMENDED FROM TIME TO TIME, THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS,
ORAL, WRITTEN AND IMPLIED, BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
(C)
THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY OR
GRANTED PURSUANT TO THIS AGREEMENT SHALL BE BINDING UPON AND BE ENFORCEABLE BY
THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (INCLUDING ANY
DIRECT OR INDIRECT SUCCESSOR BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY), SHALL
CONTINUE AS TO AN INDEMNITEE WHO HAS CEASED TO BE A DIRECTOR, OFFICER, EMPLOYEE
OR AGENT OF THE COMPANY OR OF ANY OTHER ENTERPRISE AT THE COMPANY'S REQUEST, AND
SHALL INURE TO THE BENEFIT OF INDEMNITEE AND HIS OR HER SPOUSE, ASSIGNS, HEIRS,
DEVISEES, EXECUTORS AND ADMINISTRATORS AND OTHER LEGAL REPRESENTATIVES. THE
COMPANY AND INDEMNITEE AGREE THAT THE FUND INDEMNITORS ARE EXPRESS THIRD PARTY
BENEFICIARIES OF THIS AGREEMENT.
(D)
THE COMPANY SHALL REQUIRE AND CAUSE ANY SUCCESSOR (WHETHER DIRECT
OR INDIRECT BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL,
SUBSTANTIALLY ALL OR A SUBSTANTIAL PART, OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY, BY WRITTEN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE,
EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND
TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH
SUCCESSION HAD TAKEN PLACE.
(E)
THE COMPANY AND INDEMNITEE AGREE HEREIN THAT A MONETARY REMEDY FOR
BREACH OF THIS AGREEMENT, AT SOME LATER DATE, MAY BE INADEQUATE, IMPRACTICABLE
AND DIFFICULT OF PROOF, AND FURTHER AGREE THAT SUCH BREACH MAY CAUSE INDEMNITEE
IRREPARABLE HARM. ACCORDINGLY, THE PARTIES HERETO AGREE THAT INDEMNITEE MAY
ENFORCE THIS AGREEMENT BY SEEKING INJUNCTIVE RELIEF AND/OR SPECIFIC PERFORMANCE
HEREOF, WITHOUT ANY NECESSITY OF SHOWING ACTUAL DAMAGE OR IRREPARABLE HARM AND
THAT BY SEEKING INJUNCTIVE RELIEF AND/OR SPECIFIC PERFORMANCE INDEMNITEE SHALL
NOT BE PRECLUDED FROM SEEKING OR OBTAINING ANY OTHER RELIEF TO WHICH HE MAY BE
ENTITLED. THE COMPANY AND INDEMNITEE FURTHER AGREE THAT INDEMNITEE SHALL BE
ENTITLED TO SUCH SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF, INCLUDING TEMPORARY
RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS AND PERMANENT INJUNCTIONS, WITHOUT
THE NECESSITY OF POSTING BONDS OR OTHER UNDERTAKING IN CONNECTION THEREWITH. THE
COMPANY ACKNOWLEDGES THAT IN THE ABSENCE OF A WAIVER, A BOND OR UNDERTAKING MAY
BE REQUIRED OF INDEMNITEE BY THE COURT, AND THE COMPANY HEREBY WAIVES ANY SUCH
REQUIREMENT OF SUCH A BOND OR UNDERTAKING.
21.
MODIFICATION AND WAIVER. NO SUPPLEMENT, MODIFICATION OR AMENDMENT
OF THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY THE PARTIES
HERETO. NO WAIVER OF ANY OF
16
THE PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED OR SHALL CONSTITUTE A WAIVER OF
ANY OTHER PROVISIONS OF THIS AGREEMENT NOR SHALL ANY WAIVER CONSTITUTE A
CONTINUING WAIVER.
22.
NOTICES. ALL NOTICES, REQUESTS, DEMANDS AND OTHER COMMUNICATIONS
UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY