A COBRA ELECTION, AND EXECUTIVE MAKES SUCH ELECTION, THEN THE
COMPANY SHALL PAY THE AMOUNT OF INCREASED PREMIUMS ARISING AS A RESULT OF SUCH
ELECTION.
IN NO EVENT SHALL THE COMPANY'S LIABILITY UNDER THIS
SECTION 9(C) EXCEED THE SUM OF APPLICABLE COBRA PREMIUMS FOR SUCH BENEFITS PLUS
$25,000.
(D)
FOR THE AVOIDANCE OF DOUBT, EXECUTIVE
EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL AMOUNTS PAYABLE OR DISTRIBUTABLE
UNDER THAT CERTAIN ESCROW AND SHAREHOLDER'S AGREEMENT BETWEEN EXECUTIVE AND
COMPANY AND THE ESCROW AGENT THEREUNDER, DATED AS OF AN EVEN DATE HEREWITH, DO
NOT CONSTITUTE COMPENSATION OR OTHER REMUNERATION TO EXECUTIVE FOR ANY PURPOSE
UNDER THIS AGREEMENT.
10.
LEGAL FEES; MITIGATION OF DAMAGES; SET OFF.
(A)
THE COMPANY SHALL REIMBURSE SUCH COSTS,
LEGAL FEES AND EXPENSES AS MAY BE REASONABLY INCURRED BY EXECUTIVE IN CONTESTING
OR DISPUTING ANY SUCH TERMINATION, OR IN SEEKING TO OBTAIN OR ENFORCE ANY RIGHT
OR BENEFIT PROVIDED BY THIS AGREEMENT IF EXECUTIVE IS SUCCESSFUL IN ANY MATERIAL
RESPECT IN CONNECTION WITH ENFORCING ANY OF EXECUTIVE'S RIGHTS OR THE COMPANY'S
OBLIGATIONS UNDER THIS AGREEMENT IN SUCH DISPUTE.
(B)
THE AMOUNT OF ANY PAYMENT BY THE COMPANY
PROVIDED FOR IN THIS AGREEMENT SHALL BE REDUCED BY ANY COMPENSATION EARNED BY
EXECUTIVE AS THE RESULT OF EMPLOYMENT BY ANOTHER EMPLOYER AFTER THE DATE OF
TERMINATION THROUGH DECEMBER 31, 2005 OR IF THE TERM OF THIS AGREEMENT IS
EXTENDED, THROUGH THE THEN CURRENT EXPIRATION DATE OF THIS AGREEMENT.
THE
COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL HAVE THE RIGHT TO SET OFF
PAYMENTS OWED TO EXECUTIVE UNDER THIS AGREEMENT AGAINST AMOUNTS OWED OR CLAIMED
TO BE OWED BY THE EXECUTIVE TO ANY OF SUCH PERSONS UNDER THIS AGREEMENT OR
OTHERWISE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11.
SUCCESSORS; BINDING AGREEMENT.
(A)
THE COMPANY WILL USE COMMERCIALLY
REASONABLE EFFORTS TO CAUSE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY
PURCHASER, MERGER, CONSOLIDATION OR OTHERWISE) TO 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.
FAILURE OF THE COMPANY TO OBTAIN SUCH
AGREEMENT SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT AND SHALL ENTITLE
EXECUTIVE TO COMPENSATION FROM THE COMPANY IN THE SAME AMOUNT AND ON THE SAME
TERMS AS EXECUTIVE WOULD BE ENTITLED HEREUNDER IF SUCH SUCCESSION HAD NOT
OCCURRED, EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE FOREGOING, THE DATE OF
WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE SHALL BE DEEMED THE DATE OF
TERMINATION.
AS USED IN THIS AGREEMENT, "COMPANY" SHALL MEAN THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID WHICH EXECUTES AND DELIVERS THE AGREEMENT PROVIDED FOR IN THIS
SECTION 11 OR WHICH OTHERWISE BECOMES BOUND BY ALL THE TERMS AND PROVISIONS OF
THIS AGREEMENT BY OPERATION OF LAW.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE ENFORCEABLE BY EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS, HEIRS,