TO THE COMPANY, THE COMPANY WILL REQUIRE ANY
SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR
OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY, TO EXPRESSLY ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME
MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT
IF NO SUCH SUCCESSION HAD TAKEN PLACE.
AS USED IN THIS AGREEMENT, "COMPANY"
SHALL MEAN THE COMPANY AS HEREIN BEFORE DEFINED AND ANY SUCH SUCCESSOR THAT
EXPRESSLY ASSUMES THIS AGREEMENT OR OTHERWISE BECOMES BOUND BY ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT BY OPERATION OF LAW.
24.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF
WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
25.
ATTORNEYS' FEES.
IF ANY PARTY FINDS IT
NECESSARY TO EMPLOY LEGAL COUNSEL OR TO BRING AN ACTION AT LAW OR OTHER
PROCEEDINGS AGAINST THE OTHER PARTY TO INTERPRET OR ENFORCE ANY OF THE TERMS
HEREOF, THE PARTY PREVAILING IN ANY SUCH ACTION OR OTHER PROCEEDING SHALL BE
PAID BY THE OTHER PARTY ITS REASONABLE LEGAL FEES, COURT COSTS, LITIGATION
EXPENSES, ALL AS DETERMINED BY THE COURT AND NOT A JURY; PROVIDED, HOWEVER, THAT
ON OR AFTER A CHANGE IN CONTROL, IF ANY PARTY FINDS IT NECESSARY TO EMPLOY LEGAL
COUNSEL OR TO BRING AN ACTION AT LAW OR OTHER PROCEEDINGS AGAINST THE OTHER
PARTY TO INTERPRET OR ENFORCE ANY OF THE TERMS HEREOF, THE COMPANY SHALL PAY (ON
AN ONGOING BASIS) TO THE EMPLOYEE TO THE FULLEST EXTENT PERMITTED BY LAW, ALL
LEGAL FEES, COURT COSTS AND LITIGATION EXPENSES REASONABLY INCURRED BY THE
EMPLOYEE OR OTHERS ON HIS BEHALF (SUCH AMOUNTS COLLECTIVELY REFERRED TO AS THE
"REIMBURSED AMOUNTS"); PROVIDED, FURTHER, THAT THE EMPLOYEE SHALL REIMBURSE THE
COMPANY FOR THE REIMBURSED AMOUNTS IF IT IS DETERMINED THAT A MAJORITY OF THE
EMPLOYEE'S CLAIMS OR DEFENSES WERE FRIVOLOUS OR WITHOUT MERIT.
26.
SEVERABILITY.
IF ANY SECTION, SUBSECTION OR
PROVISION HEREOF IS FOUND FOR ANY REASON WHATSOEVER TO BE INVALID OR
INOPERATIVE, THAT SECTION, SUBSECTION OR PROVISION SHALL BE DEEMED SEVERABLE AND
SHALL NOT AFFECT THE FORCE AND VALIDITY OF ANY OTHER PROVISION OF THIS
AGREEMENT.
IF ANY COVENANT HEREIN IS DETERMINED BY A COURT TO BE OVERLY BROAD
THEREBY MAKING THE COVENANT UNENFORCEABLE, THE PARTIES AGREE AND IT IS THEIR
DESIRE THAT SUCH COURT SHALL SUBSTITUTE A REASONABLE JUDICIALLY ENFORCEABLE
LIMITATION IN PLACE OF THE OFFENSIVE PART OF THE COVENANT AND THAT AS SO
MODIFIED THE COVENANT SHALL BE AS FULLY ENFORCEABLE AS IF SET FORTH HEREIN BY
THE PARTIES THEMSELVES IN THE MODIFIED FORM.
THE COVENANTS OF THE EMPLOYEE IN
THIS AGREEMENT SHALL EACH BE CONSTRUED AS AN AGREEMENT INDEPENDENT OF ANY OTHER
PROVISION IN THIS AGREEMENT, AND THE EXISTENCE OF ANY CLAIM OR CAUSE OF ACTION
OF THE EMPLOYEE AGAINST THE COMPANY, WHETHER PREDICATED ON THIS AGREEMENT OR
OTHERWISE, SHALL NOT CONSTITUTE A DEFENSE TO THE ENFORCEMENT BY THE COMPANY OF
THE COVENANTS IN