LITIGATION.
UNLESS PRECLUDED BY AN ACTUAL OR POTENTIAL CONFLICT
OF INTEREST, FIRST BUSEY WILL HAVE THE RIGHT TO RECOMMEND COUNSEL TO EXECUTIVE
TO REPRESENT EXECUTIVE IN CONNECTION WITH ANY CLAIM COVERED BY THIS SECTION 7.
FURTHER, EXECUTIVE'S CHOICE OF COUNSEL, EXECUTIVE'S DECISION TO CONTEST OR
SETTLE ANY SUCH CLAIM, AND THE TERMS AND AMOUNT OF THE SETTLEMENT OF ANY SUCH
CLAIM WILL BE SUBJECT TO FIRST BUSEY'S PRIOR WRITTEN APPROVAL, WHICH APPROVAL
SHALL NOT BE UNREASONABLY WITHHELD BY FIRST BUSEY.
SECTION 8.
GENERAL PROVISIONS.
(A)
SUCCESSORS; ASSIGNMENT.
THIS AGREEMENT WILL BE BINDING UPON AND
INURE TO THE BENEFIT OF EXECUTIVE, FIRST BUSEY AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
FOR THE PURPOSES OF THIS AGREEMENT,
ANY SUCCESSOR OR ASSIGN OF FIRST BUSEY SHALL BE DEEMED TO BE "FIRST BUSEY."
FIRST BUSEY WILL REQUIRE ANY SUCCESSOR OR ASSIGN OF FIRST BUSEY OR ANY DIRECT OR
INDIRECT PURCHASER OR ACQUIROR OF ALL OR SUBSTANTIALLY ALL OF THE BUSINESS,
ASSETS OR LIABILITIES OF FIRST BUSEY, WHETHER BY TRANSFER, PURCHASE, MERGER,
CONSOLIDATION, STOCK ACQUISITION OR OTHERWISE, TO ASSUME AND AGREE IN WRITING TO
PERFORM THIS AGREEMENT AND FIRST BUSEY'S OBLIGATIONS HEREUNDER IN THE SAME
MANNER AND TO THE SAME EXTENT AS FIRST BUSEY WOULD HAVE BEEN REQUIRED TO PERFORM
THEM IF NO SUCH TRANSACTION HAD OCCURRED.
(B)
ENTIRE AGREEMENT; SURVIVAL.
THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN EXECUTIVE AND FIRST BUSEY CONCERNING THE SUBJECT MATTER
HEREOF, AND SUPERSEDES ALL PRIOR NEGOTIATIONS, UNDERTAKINGS, AGREEMENTS AND
ARRANGEMENTS WITH RESPECT THERETO, WHETHER WRITTEN OR ORAL, SPECIFICALLY
INCLUDING THE PRIOR EMPLOYMENT AGREEMENT.
THE PROVISIONS OF THIS AGREEMENT WILL
BE REGARDED AS DIVISIBLE AND SEPARATE; IF ANY PROVISION IS EVER DECLARED INVALID
OR UNENFORCEABLE, THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS
WILL NOT BE AFFECTED.
IN THE EVENT ANY PROVISION OF THIS AGREEMENT (INCLUDING,
BUT NOT LIMITED TO, ANY PROVISION OF THE COVENANT NOT TO COMPETE SET FORTH IN
SECTION 6) IS HELD TO BE OVERBROAD AS WRITTEN, SUCH PROVISION SHALL BE DEEMED TO
BE AMENDED TO NARROW THE APPLICATION OF SUCH PROVISION TO THE EXTENT NECESSARY
TO MAKE SUCH PROVISION ENFORCEABLE ACCORDING TO APPLICABLE LAW.
THIS AGREEMENT
MAY NOT BE AMENDED OR MODIFIED EXCEPT BY A WRITING SIGNED BY EXECUTIVE
9
AND FIRST BUSEY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE OBLIGATIONS UNDER
SECTION 5 (CONFIDENTIALITY), SECTION 6 (NON-COMPETITION COVENANT) AND SECTION 7
(INDEMNITY; OTHER PROTECTIONS) SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
THE SUBJECT MATTER AND LANGUAGE OF THIS AGREEMENT HAS BEEN THE SUBJECT OF
NEGOTIATIONS BETWEEN THE PARTIES AND/OR THEIR RESPECTIVE COUNSEL, AND THIS
AGREEMENT HAS BEEN JOINTLY PREPARED BY THEIR RESPECTIVE COUNSEL.
ACCORDINGLY,
THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST EITHER PARTY ON THE BASIS THAT
THIS AGREEMENT WAS DRAFTED BY SUCH PARTY OR ITS COUNSEL.
(C)
GOVERNING LAW AND ENFORCEMENT.
THIS AGREEMENT WILL BE CONSTRUED
AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO THE LAW REGARDING
CONFLICTS OF LAW.
(D)
ARBITRATION.
ANY DISPUTE OR CONTROVERSY