GIVE THE MAXIMUM EFFECT TO THE INTENT OF THE PARTIES
HERETO; AND (C) TO THE FULLEST EXTENT POSSIBLE, THE PROVISIONS OF THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, EACH PORTION OF ANY SECTION, PARAGRAPH OR
SENTENCE OF THIS AGREEMENT CONTAINING ANY SUCH PROVISION HELD TO BE INVALID,
ILLEGAL OR UNENFORCEABLE, THAT IS NOT ITSELF INVALID, ILLEGAL OR UNENFORCEABLE)
SHALL BE CONSTRUED SO AS TO GIVE EFFECT TO THE INTENT MANIFESTED THEREBY.
20.
ENFORCEMENT AND BINDING EFFECT.
(A)
THE COMPANY EXPRESSLY CONFIRMS AND AGREES THAT IT HAS ENTERED INTO THIS
AGREEMENT AND ASSUMED THE OBLIGATIONS IMPOSED ON IT HEREBY IN ORDER TO INDUCE
INDEMNITEE TO SERVE AS A DIRECTOR, OFFICER OR KEY EMPLOYEE OF THE COMPANY, AND
THE COMPANY ACKNOWLEDGES THAT INDEMNITEE IS RELYING UPON THIS AGREEMENT IN
SERVING AS A DIRECTOR, OFFICER OR KEY EMPLOYEE OF THE COMPANY.
(B)
WITHOUT LIMITING ANY OF THE RIGHTS OF INDEMNITEE UNDER THE CHARTER OF THE
COMPANY AS IT MAY BE 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;
PROVIDED, HOWEVER, THAT THIS AGREEMENT IS A SUPPLEMENT TO AND IN FURTHERANCE OF
THE CHARTER, ANY DIRECTORS AND OFFICERS INSURANCE MAINTAINED BY THE
16
COMPANY AND APPLICABLE LAW, AND SHALL NOT BE DEEMED A SUBSTITUTE THEREFOR, NOR
TO DIMINISH OR ABROGATE ANY RIGHTS OF INDEMNITEE THEREUNDER.
(C)
THE INDEMNIFICATION, HOLD HARMLESS, EXONERATION AND ADVANCEMENT OF EXPENSES
RIGHTS 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.
(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 THE 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