OR WAS FRIVOLOUS.
13.
NOTICE.
ALL NOTICES AND OTHER COMMUNICATIONS
REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING, SHALL BE EFFECTIVE WHEN
GIVEN, AND SHALL IN ANY EVENT BE DEEMED TO BE GIVEN (A) FIVE (5) DAYS AFTER
DEPOSIT WITH THE U.S. POSTAL SERVICE OR OTHER APPLICABLE POSTAL SERVICE, IF
DELIVERED BY FIRST CLASS MAIL, POSTAGE PREPAID, (B) UPON DELIVERY, IF DELIVERED
BY HAND, (C) ONE BUSINESS DAY AFTER THE BUSINESS DAY OF DEPOSIT WITH FEDERAL
EXPRESS OR SIMILAR OVERNIGHT COURIER, FREIGHT PREPAID, OR (D) ONE DAY AFTER THE
BUSINESS DAY OF DELIVERY BY FACSIMILE TRANSMISSION, IF DELIVERED BY FACSIMILE
TRANSMISSION, WITH COPY BY FIRST CLASS MAIL, POSTAGE PREPAID, AND SHALL BE
ADDRESSED IF TO INDEMNITEE, AT THE INDEMNITEE ADDRESS AS SET FORTH BENEATH
INDEMNITEE SIGNATURES TO THIS AGREEMENT AND IF TO THE COMPANY AT THE ADDRESS OF
ITS PRINCIPAL CORPORATE OFFICES (ATTENTION:
SECRETARY) OR AT SUCH OTHER ADDRESS
AS SUCH PARTY MAY DESIGNATE BY TEN (10) DAYS' ADVANCE WRITTEN NOTICE TO THE
OTHER PARTY HERETO.
8
14.
CONSENT TO JURISDICTION.
THE COMPANY AND
INDEMNITEE HEREBY IRREVOCABLY AND UNCONDITIONALLY (I) AGREE THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT
ONLY IN THE CHANCERY COURT OF THE STATE OF DELAWARE (THE "DELAWARE COURT"), AND
NOT IN ANY OTHER STATE OR FEDERAL COURT IN THE UNITED STATES OF AMERICA OR ANY
COURT IN ANY OTHER COUNTRY, (II) CONSENT TO SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE DELAWARE COURT FOR PURPOSES OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, (III) WAIVE ANY OBJECTION TO THE LAYING OF
VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE DELAWARE COURT AND (IV) WAIVE, AND
AGREE NOT TO PLEAD OR TO MAKE, ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN THE DELAWARE COURT HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT
FORUM.
15.
SEVERABILITY.
THE PROVISIONS OF THIS
AGREEMENT SHALL BE SEVERABLE IN THE EVENT THAT ANY OF THE PROVISIONS HEREOF
(INCLUDING ANY PROVISION WITHIN A SINGLE SECTION, PARAGRAPH OR SENTENCE) ARE
HELD BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR OTHERWISE
UNENFORCEABLE, AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE TO THE
FULLEST EXTENT PERMITTED BY LAW.
FURTHERMORE, TO THE FULLEST EXTENT POSSIBLE,
THE PROVISIONS OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATIONS, EACH PORTION
OF THIS AGREEMENT CONTAINING ANY PROVISION HELD TO BE INVALID, VOID OR OTHERWISE
UNENFORCEABLE, THAT IS NOT ITSELF INVALID, VOID OR UNENFORCEABLE) SHALL BE
CONSTRUED SO AS TO GIVE EFFECT TO THE INTENT MANIFESTED BY THE PROVISION HELD
INVALID, ILLEGAL OR UNENFORCEABLE.
16.
CHOICE OF LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND ITS PROVISIONS CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS BETWEEN DELAWARE
RESIDENTS, ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF
DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
17.
SUBROGATION.
IN THE EVENT OF PAYMENT UNDER
THIS AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO