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.
(B)
NOTICES.
ALL NOTICES, REQUESTS, DEMANDS AND OTHER COMMUNICATIONS
UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED DULY GIVEN (I) ON
THE DATE OF DELIVERY IF DELIVERED PERSONALLY, OR BY FACSIMILE, UPON CONFIRMATION
OF RECEIPT, (II) ON THE FIRST BUSINESS DAY FOLLOWING THE DATE OF DISPATCH IF
DELIVERED BY A RECOGNIZED NEXT-DAY COURIER SERVICE OR (III) ON THE THIRD
BUSINESS DAY FOLLOWING THE DATE OF MAILING IF DELIVERED BY DOMESTIC REGISTERED
OR CERTIFIED MAIL, PROPERLY ADDRESSED, OR ON THE FIFTH BUSINESS DAY FOLLOWING
THE DATE OF MAILING IF SENT BY AIRMAIL FROM A COUNTRY OUTSIDE OF NORTH AMERICA,
TO INDEMNITEE AS SHOWN ON THE SIGNATURE PAGE OF THIS AGREEMENT, TO THE COMPANY
AT THE ADDRESS SHOWN ON THE SIGNATURE PAGE OF THIS AGREEMENT, OR IN EITHER CASE
AS SUBSEQUENTLY MODIFIED BY WRITTEN NOTICE.
(C)
AMENDMENT AND TERMINATION.
NO AMENDMENT, MODIFICATION,
TERMINATION OR CANCELLATION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IT IS IN
WRITING SIGNED BY ALL THE PARTIES HERETO.
NO WAIVER OF ANY OF THE PROVISIONS OF
THIS AGREEMENT SHALL BE DEEMED OR SHALL CONSTITUTE A WAIVER OF ANY OTHER
PROVISIONS HEREOF (WHETHER OR NOT SIMILAR), NOR SHALL SUCH WAIVER CONSTITUTE
A CONTINUING WAIVER.
(D)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON THE
COMPANY AND ITS SUCCESSORS AND ASSIGNS, INCLUDING WITHOUT LIMITATION ANY
ACQUIROR OF ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS OR BUSINESS, ANY
PERSON (AS SUCH TERM IS USED IN SECTIONS 13(D) AND 14(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED) THAT ACQUIRES BENEFICIAL OWNERSHIP OF
SECURITIES OF THE COMPANY REPRESENTING MORE THAN 20% OF THE TOTAL VOTING POWER
REPRESENTED BY THE COMPANY'S THEN OUTSTANDING VOTING SECURITIES AND ANY SURVIVOR
OF ANY MERGER OR CONSOLIDATION TO WHICH THE COMPANY IS PARTY, AND SHALL INURE TO
THE BENEFIT OF INDEMNITEE AND INDEMNITEE'S ESTATE, SPOUSES, HEIRS,
10
EXECUTORS, PERSONAL OR LEGAL REPRESENTATIVES, ADMINISTRATORS AND ASSIGNS.
THE
COMPANY SHALL REQUIRE AND CAUSE ANY SUCH SUCCESSOR, AS APPLICABLE, BY WRITTEN
AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO INDEMNITEE, EXPRESSLY TO ASSUME
AND AGREE TO PERFORM THIS AGREEMENT AS IF IT WERE NAMED AS THE COMPANY HEREIN,
AND THE COMPANY SHALL NOT PERMIT ANY SUCH PURCHASE OF ASSETS OR BUSINESS,
ACQUISITION OF SECURITIES OR MERGER OR CONSOLIDATION TO OCCUR UNTIL SUCH WRITTEN
AGREEMENT HAS BEEN EXECUTED AND DELIVERED.
NO SUCH ASSUMPTION AND AGREEMENT
SHALL RELIEVE THE COMPANY OF ANY OF ITS OBLIGATIONS HEREUNDER, AND THIS
AGREEMENT SHALL NOT OTHERWISE BE ASSIGNABLE BY THE COMPANY.
(E)
CHOICE OF LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT SHALL BE
GOVERNED BY AND ITS PROVISIONS CONSTRUED 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 DELAWARE, WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
EACH OF THE COMPANY AND INDEMNITEE HEREBY
IRREVOCABLY CONSENTS