AGREE NOT TO ASSERT BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION, OR PROCEEDING,
ANY CLAIM THAT HE OR IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER, OR THAT THE PROVISIONS OF THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY
SUCH COURTS.
IN ADDITION, THE PARTIES AGREE TO THE WAIVER OF A JURY TRIAL.
10.6
ASSIGNABILITY BY THE COMPANY AND THE EXECUTIVE.
THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS HEREUNDER, MAY NOT BE ASSIGNED BY
THE COMPANY OR THE EXECUTIVE WITHOUT WRITTEN CONSENT SIGNED BY THE OTHER PARTY;
PROVIDED THAT THE COMPANY MAY ASSIGN THE AGREEMENT TO ANY SUCCESSOR THAT
CONTINUES THE BUSINESS OF THE COMPANY.
10.7
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL BUT BOTH OF WHICH SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
10.8
HEADINGS.
THE HEADINGS IN THIS AGREEMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE
MEANING OF TERMS CONTAINED HEREIN.
10.9
SEVERABILITY.
IF ANY TERM, PROVISION, COVENANT
OR RESTRICTION OF THIS AGREEMENT, OR ANY PART THEREOF, IS HELD BY A COURT OF
COMPETENT JURISDICTION OF ANY FOREIGN, FEDERAL, STATE, COUNTY OR LOCAL
GOVERNMENT OR ANY OTHER GOVERNMENTAL, REGULATORY OR ADMINISTRATIVE AGENCY OR
AUTHORITY TO BE INVALID, VOID, UNENFORCEABLE OR AGAINST PUBLIC POLICY FOR ANY
REASON, THE REMAINDER OF THE TERMS, PROVISIONS, COVENANTS AND RESTRICTIONS OF
THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL IN NO WAY BE
AFFECTED OR IMPAIRED OR INVALIDATED.
16
THE EXECUTIVE ACKNOWLEDGES THAT THE RESTRICTIVE COVENANTS CONTAINED IN SECTION 6
ARE A CONDITION OF THIS AGREEMENT AND ARE REASONABLE AND VALID IN TEMPORAL SCOPE
AND IN ALL OTHER RESPECTS.
10.10
JUDICIAL MODIFICATION.
IF ANY COURT DETERMINES THAT
ANY OF THE COVENANTS IN SECTION 6, OR ANY PART OF ANY OF THEM, IS INVALID OR
UNENFORCEABLE, THE REMAINDER OF SUCH COVENANTS AND PARTS THEREOF SHALL NOT
THEREBY BE AFFECTED AND SHALL BE GIVEN FULL EFFECT, WITHOUT REGARD TO THE
INVALID PORTION.
IF ANY COURT DETERMINES THAT ANY OF SUCH COVENANTS, OR ANY
PART THEREOF, IS INVALID OR UNENFORCEABLE BECAUSE OF THE GEOGRAPHIC OR TEMPORAL
SCOPE OF SUCH PROVISION, SUCH COURT SHALL REDUCE SUCH SCOPE TO THE MINIMUM
EXTENT NECESSARY TO MAKE SUCH COVENANTS VALID AND ENFORCEABLE.
10.11
LEGAL FEES.
THE COMPANY WILL PAY FOR OR REIMBURSE THE
EXECUTIVE FOR HIS COSTS REASONABLY INCURRED IN RETAINING LEGAL COUNSEL TO REVIEW
THIS AGREEMENT AND ADVISE HIM IN CONNECTION THEREWITH PRIOR TO EXECUTION TO A
MAXIMUM AMOUNT OF FIFTEEN THOUSAND DOLLARS ($15,000), SUBJECT TO THE EXECUTIVE'S
SUBMISSION OF APPROPRIATE DOCUMENTATION OF SUCH EXPENSES.
10.12
ACKNOWLEDGEMENT.
THE EXECUTIVE REPRESENTS AND
ACKNOWLEDGES THE FOLLOWING:
(A)
HE HAS CAREFULLY READ THIS AGREEMENT IN ITS
ENTIRETY;
(B)
HE UNDERSTANDS THE TERMS AND CONDITIONS
CONTAINED HEREIN;
(C)
HE HAS REVIEWED THIS AGREEMENT WITH LEGAL
COUNSEL OF HIS