SHALL CREATE A PRESUMPTION THAT THE EXECUTIVE HAS NOT MET
AN APPLICABLE STANDARD OF CONDUCT.
(C)
DURING THE TERM OF EMPLOYMENT AND FOR A
PERIOD OF SIX YEARS THEREAFTER, THE COMPANY SHALL KEEP IN PLACE A DIRECTORS AND
OFFICERS' LIABILITY INSURANCE POLICY (OR POLICIES) PROVIDING COMPREHENSIVE
COVERAGE TO THE EXECUTIVE EQUAL TO AT LEAST THE GREATER OF (I) $5,000,000 PER
YEAR AND (II) THE COVERAGE THAT THE COMPANY PROVIDES FOR ANY OTHER PRESENT OR
FORMER SENIOR EXECUTIVE OR DIRECTOR OF THE COMPANY.
(D)
THE COMPANY SHALL BE ENTITLED TO DEDUCT OR
WITHHOLD FROM ANY AMOUNTS OWING FROM THE COMPANY TO THE EXECUTIVE ANY FEDERAL,
STATE, LOCAL OR FOREIGN WITHHOLDING TAXES, EXCISE TAX, OR EMPLOYMENT TAXES
("TAXES") IMPOSED WITH RESPECT TO THE EXECUTIVE'S COMPENSATION OR OTHER PAYMENTS
FROM THE COMPANY OR THE EXECUTIVE'S OWNERSHIP INTEREST IN THE COMPANY
(INCLUDING, WITHOUT LIMITATION, WAGES, BONUSES, DIVIDENDS, THE RECEIPT OR
EXERCISE OF EQUITY OPTIONS AND/OR THE RECEIPT OR VESTING OF RESTRICTED EQUITY).
IN THE EVENT THE COMPANY ELECTS, AT THE EXECUTIVE'S REQUEST, TO NOT MAKE SUCH
DEDUCTIONS OR WITHHOLDINGS, THE EXECUTIVE SHALL INDEMNIFY THE COMPANY FOR ANY
AMOUNTS PAID WITH RESPECT TO ANY SUCH TAXES, TOGETHER WITH ANY INTEREST,
PENALTIES AND RELATED EXPENSES THERETO.
11.
ASSIGNABILITY; BINDING NATURE.
(A)
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS, HEIRS (IN
THE CASE OF THE EXECUTIVE), AND ASSIGNS.
(B)
NO RIGHTS OR OBLIGATIONS OF THE COMPANY
UNDER THIS AGREEMENT MAY BE ASSIGNED OR TRANSFERRED BY THE COMPANY EXCEPT THAT
SUCH RIGHTS OR OBLIGATIONS MAY BE ASSIGNED OR TRANSFERRED PURSUANT TO A MERGER
OR CONSOLIDATION IN WHICH THE COMPANY IS NOT THE CONTINUING ENTITY, OR A SALE OR
LIQUIDATION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE
COMPANY; PROVIDED, THAT THE ASSIGNEE OR TRANSFEREE IS THE SUCCESSOR TO ALL OR
SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE COMPANY AND SUCH ASSIGNEE OR
TRANSFEREE ASSUMES THE LIABILITIES, OBLIGATIONS, AND DUTIES OF THE COMPANY, AS
CONTAINED IN THIS AGREEMENT, EITHER CONTRACTUALLY OR AS A MATTER OF LAW.
IN THE
EVENT OF ANY SALE OF ASSETS AND BUSINESS OR LIQUIDATION AS DESCRIBED IN THE
PRECEDING SENTENCE, THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO
CAUSE SUCH ASSIGNEE OR TRANSFEREE TO EXPRESSLY ASSUME THE LIABILITIES,
OBLIGATIONS AND DUTIES OF THE COMPANY HEREUNDER.
(C)
NO RIGHTS OR OBLIGATIONS OF THE EXECUTIVE
UNDER THIS AGREEMENT MAY BE ASSIGNED OR TRANSFERRED BY THE EXECUTIVE OTHER THAN
HIS RIGHTS TO COMPENSATION AND BENEFITS, WHICH MAY BE TRANSFERRED ONLY BY WILL
OR OPERATION OF APPLICABLE LAW, EXCEPT AS PROVIDED IN SECTION 18(F).
11
12.
REPRESENTATIONS.
(A)
HOLDINGS AND FINANCIAL, JOINTLY AND
SEVERALLY, REPRESENT AND WARRANT THAT:
(I)
HOLDINGS AND FINANCIAL ARE DULY
AUTHORIZED TO ENTER INTO THIS AGREEMENT AND TO PERFORM THEIR RESPECTIVE
OBLIGATIONS HEREUNDER AND, UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY
THE PARTIES, THIS AGREEMENT SHALL BE THE VALID AND BINDING OBLIGATION OF
HOLDINGS AND FINANCIAL, ENFORCEABLE AGAINST HOLDINGS AND FINANCIAL IN ACCORDANCE
WITH