PERMITTED BY LAW.
23.
DISPUTES.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED EXCLUSIVELY BY
BINDING ARBITRATION IN NEW YORK, NEW YORK PURSUANT TO THE RULES OF AN ARBITRAL
FORUM MUTUALLY AGREED UPON BY THE PARTIES HERETO.
IN THE EVENT THAT AN ARBITRAL
FORUM IS NOT AGREED UPON AFTER DELIVERY OF NOTICE BY THE PARTY INITIATING SUCH
ARBITRATION AND FORTY-FIVE DAYS AFTER CONFIRMED RECEIPT OF SUCH NOTICE BY THE
OTHER PARTY, THEN ANY COURT HAVING COMPETENT JURISDICTION OVER THE PARTY SHALL
HAVE FULL POWER AND AUTHORITY TO APPOINT AN ARBITRATOR IN NEW YORK, NEW YORK,
WHO SHALL BE A SOLICITOR WITH NOT LESS THAN TEN YEARS CORPORATE TRANSACTIONAL
EXPERIENCE.
THE FEES AND COSTS OF SUCH ARBITRATION SHALL BE PAID BY THE
NON-PREVAILING PARTY.
24.
SUCCESSORS AND BINDING AGREEMENT.
(A)
THE COMPANY SHALL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT,
BY PURCHASE, MERGER, CONSOLIDATION, REORGANIZATION OR OTHERWISE) TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY, BY AGREEMENT IN FORM
AND SUBSTANCE SATISFACTORY TO INDEMNITEE AND HIS OR HER COUNSEL, EXPRESSLY TO
ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD TAKEN
PLACE. 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 SUBSTANTIALLY ALL 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 24(A) AND (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
11
Indemnification Agreement
ANY ATTEMPTED ASSIGNMENT OR TRANSFER CONTRARY TO THIS SECTION 24(C), THE COMPANY
SHALL HAVE NO LIABILITY TO PAY ANY AMOUNT SO ATTEMPTED TO BE ASSIGNED OR
TRANSFERRED.
25.
ENTIRE AGREEMENT.
SUBJECT TO THE PROVISIONS OF SECTION 12
HEREOF, THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES
AND SUPERSEDES ALL PROPOSALS, COMMITMENTS, WRITINGS, NEGOTIATIONS AND
UNDERSTANDINGS, ORAL AND WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
THIS AGREEMENT MAY
NOT BE AMENDED OR OTHERWISE MODIFIED EXCEPT IN WRITING DULY EXECUTED