IS ULTIMATELY
DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION (FROM WHOSE
DECISION NO APPEALS MAY BE TAKEN, OR THE TIME FOR APPEAL HAVING LAPSED) THAT THE
EXECUTIVE WAS NOT ENTITLED TO INDEMNITY HEREUNDER, THEN THE EXECUTIVE SHALL
REPAY
FORTHWITH ALL AMOUNTS SO ADVANCED.
THE COMPANY MAY NOT AGREE TO ANY SETTLEMENT
OR COMPROMISE OF ANY CLAIM AGAINST THE EXECUTIVE, OTHER THAN A SETTLEMENT OR
COMPROMISE SOLELY FOR MONETARY DAMAGES FOR WHICH THE COMPANY SHALL BE SOLELY
RESPONSIBLE, WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD.
THIS RIGHT TO INDEMNIFICATION SHALL BE IN
ADDITION TO, AND NOT IN LIEU OF, ANY OTHER RIGHT TO INDEMNIFICATION TO WHICH THE
EXECUTIVE SHALL BE ENTITLED PURSUANT TO THE COMPANY'S CERTIFICATE OF
INCORPORATION OR BYLAWS OR OTHERWISE.
10.
MISCELLANEOUS.
(A)
NON-WAIVER OF RIGHTS.
THE FAILURE TO
ENFORCE AT ANY TIME THE PROVISIONS OF THIS AGREEMENT OR TO REQUIRE AT ANY TIME
PERFORMANCE BY THE OTHER PARTY OF ANY OF THE PROVISIONS HEREOF SHALL IN NO WAY
BE CONSTRUED TO BE A WAIVER OF SUCH PROVISIONS OR TO AFFECT EITHER THE VALIDITY
OF THIS AGREEMENT OR ANY PART HEREOF, OR THE RIGHT OF EITHER PARTY TO ENFORCE
EACH AND EVERY PROVISION IN ACCORDANCE WITH ITS TERMS.
NO WAIVER BY EITHER
PARTY HERETO AT ANY TIME OF ANY BREACH BY THE OTHER PARTY HERETO OF, OR
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT TO BE PERFORMED BY
SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF SIMILAR OR DISSIMILAR CONDITIONS OR
PROVISIONS AT THAT TIME OR AT ANY PRIOR OR SUBSEQUENT TIME.
(B)
NOTICES.
ALL NOTICES REQUIRED OR PERMITTED
HEREUNDER WILL BE GIVEN IN WRITING, BY PERSONAL DELIVERY, BY CONFIRMED FACSIMILE
TRANSMISSION (WITH A COPY SENT BY EXPRESS DELIVERY) OR BY EXPRESS NEXT-DAY
DELIVERY VIA EXPRESS MAIL OR ANY REPUTABLE COURIER SERVICE, IN EACH CASE
ADDRESSED AS FOLLOWS (OR TO SUCH OTHER ADDRESS AS MAY BE DESIGNATED):
If to the Company:
909 Third Avenue, Suite 2863
New York, NY 10022
United States
Attention: General Counsel
Fax: (212) 906-8497
If to the Executive:
Charles K. Gallagher
[ADDRESS INTENTIONALLY REMOVED]
With a copy to the Executive's address on file with the Company's payroll
department.
Notices that are delivered personally, by confirmed facsimile transmission, or
by courier as aforesaid, shall be effective on the date of delivery.
(C)
BINDING EFFECT: ASSIGNMENT.
THIS AGREEMENT
SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE PARTIES HERETO AND THEIR
RESPECTIVE HEIRS, EXECUTORS, PERSONAL REPRESENTATIVES, ESTATES, SUCCESSORS
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION, REORGANIZATION
OR OTHERWISE) AND ASSIGNS. NOTWITHSTANDING THE PROVISIONS OF THE IMMEDIATELY
PRECEDING SENTENCE, THE EXECUTIVE SHALL NOT ASSIGN ALL OR ANY PORTION OF THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(D)
WITHHOLDING: SOCIAL SECURITY.
THE COMPANY
SHALL HAVE THE RIGHT TO WITHHOLD OR CAUSE TO BE WITHHELD FROM ANY PAYMENTS MADE
PURSUANT TO THIS AGREEMENT ALL FEDERAL, STATE, CITY, FOREIGN OR OTHER TAXES AND
SOCIAL SECURITY OR SIMILAR PAYMENTS