AND THE EXECUTIVE (INCLUDING, BUT NOT LIMITED TO, UNDER OR WITH RESPECT
TO THIS AGREEMENT OR THE MANAGEMENT EQUITY AGREEMENTS), THE COMPANY WILL ADVANCE
TO THE EXECUTIVE ALL ATTORNEYS FEES AND OTHER LITIGATION COSTS INCURRED BY THE
EXECUTIVE IN CONNECTION WITH SUCH DISPUTE; PROVIDED, EXECUTIVE SHALL BE
OBLIGATED TO REFUND TO THE COMPANY ALL SUCH ADVANCES UNLESS HE PREVAILS ON AT
LEAST ONE MATERIAL CLAIM OR ISSUE ASSERTED IN SUCH DISPUTE.
(II)
WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OR ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT.
EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 16(B)(II).
(C)
TAXES.
THE COMPANY MAY WITHHOLD FROM ANY PAYMENTS MADE UNDER THE
AGREEMENT ALL FEDERAL, STATE, CITY OR OTHER APPLICABLE TAXES AS SHALL BE
REQUIRED PURSUANT TO ANY LAW, GOVERNMENTAL REGULATION OR RULING.
(D)
AMENDMENTS.
NO PROVISIONS OF THIS AGREEMENT MAY BE MODIFIED,
WAIVED OR DISCHARGED UNLESS SUCH MODIFICATION, WAIVER OR DISCHARGE IS APPROVED
BY THE BOARD OR A PERSON AUTHORIZED THEREBY AND IS AGREED TO IN WRITING BY THE
EXECUTIVE AND SUCH OFFICER AS MAY BE SPECIFICALLY DIRECTED BY THE BOARD.
NO
WAIVER BY ANY PARTY HERETO AT ANY TIME OF ANY BREACH BY ANY 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
PROVISIONS OR CONDITIONS AT THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
NO
WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE IMPLIED FROM ANY COURSE OF
DEALING BETWEEN OR AMONG THE PARTIES HERETO OR FROM ANY FAILURE BY ANY PARTY
HERETO TO ASSERT ITS RIGHTS HEREUNDER ON ANY OCCASION OR SERIES OF OCCASIONS.
(E)
SEVERABILITY.
IT IS THE DESIRE OF THE PARTIES THAT THE PROVISIONS
OF THIS AGREEMENT SHALL BE ENFORCED TO THE FULLEST EXTENT PERMISSIBLE UNDER
APPLICABLE LAW.
IN THE EVENT THAT ANY ONE OR MORE OF THE PROVISIONS OF THIS
AGREEMENT SHALL BE OR BECOME INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT,
THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS CONTAINED
HEREIN SHALL NOT BE AFFECTED
17
THEREBY.
IN THE EVENT THAT ANY OF SECTIONS 6, 7, 8, 9, 10 OR 11 IS INVALID,
ILLEGAL OR UNENFORCEABLE IN ACCORDANCE WITH ITS TERMS, THE