secrets concerning the worldwide business and operations of Holding and
the Subsidiaries that could be used to compete unfairly with Holding and the
Subsidiaries; (ii) the covenants and restrictions contained in Sections 8
through 13, inclusive, are intended to protect the legitimate interests of
Employer and Holding to protect their respective goodwill, trade secrets and
other confidential information and (iii) Executive desires to agree to be bound
by such covenants and restrictions and to enter into the Agreement;
14.
ASSUMPTION OF AGREEMENT.
EMPLOYER WILL
REQUIRE ANY SUCCESSOR (BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL
OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF EMPLOYER, BY AGREEMENT IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO EXECUTIVE, TO EXPRESSLY ASSUME AND
AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT
EMPLOYER WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE.
FAILURE OF EMPLOYER TO OBTAIN SUCH AGREEMENT PRIOR TO THE EFFECTIVENESS OF ANY
SUCH SUCCESSION SHALL BE A BREACH OF THIS AGREEMENT AND SHALL ENTITLE EXECUTIVE
TO COMPENSATION FROM EMPLOYER IN THE SAME AMOUNT AND ON THE SAME TERMS AS
EXECUTIVE WOULD BE ENTITLED HEREUNDER IF EMPLOYER TERMINATED HIS EMPLOYMENT
WITHOUT CAUSE AS CONTEMPLATED BY SECTION 7, EXCEPT THAT FOR PURPOSES OF
IMPLEMENTING THE FOREGOING, THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES
EFFECTIVE SHALL BE DEEMED THE DATE OF TERMINATION.
15.
ENTIRE AGREEMENT.
THIS AGREEMENT
(INCLUDING THE EXHIBIT HERETO) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND ALL PROMISES,
REPRESENTATIONS, UNDERSTANDINGS, ARRANGEMENTS.
ALL PRIOR CORRESPONDENCE AND
PROPOSALS (INCLUDING SUMMARIES OF PROPOSED TERMS) AND ALL PRIOR PROMISES,
REPRESENTATIONS, UNDERSTANDINGS, ARRANGEMENTS AND AGREEMENTS RELATING TO SUCH
SUBJECT MATTER (INCLUDING BUT NOT LIMITED TO THOSE MADE TO OR WITH EXECUTIVE BY
ANY OTHER PERSON OR ENTITY) ARE MERGED HEREIN AND SUPERSEDED HEREBY.
16.
INDEMNIFICATION.
EMPLOYER AGREES THAT IT
SHALL INDEMNIFY AND HOLD HARMLESS EXECUTIVE TO THE FULLEST EXTENT PERMITTED BY
DELAWARE LAW FROM AND AGAINST ANY AND ALL LIABILITIES, COSTS, CLAIMS AND
EXPENSES INCLUDING WITHOUT LIMITATION ALL COSTS AND EXPENSES INCURRED IN DEFENSE
OF LITIGATION, INCLUDING ATTORNEYS' FEES, ARISING OUT OF THE EMPLOYMENT OF
EXECUTIVE HEREUNDER, EXCEPT TO THE EXTENT ARISING OUT OF OR BASED UPON THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF EXECUTIVE.
COSTS AND EXPENSES INCURRED BY
EXECUTIVE IN DEFENSE OF LITIGATION, INCLUDING ATTORNEYS' FEES, SHALL BE PAID BY
EMPLOYER IN ADVANCE OF THE FINAL DISPOSITION OF SUCH LITIGATION UPON RECEIPT OF
AN UNDERTAKING ADEQUATE UNDER DELAWARE LAW MADE BY OR ON BEHALF OF EXECUTIVE TO
REPAY SUCH AMOUNT IF IT SHALL ULTIMATELY BE DETERMINED THAT EXECUTIVE IS NOT
ENTITLED TO BE INDEMNIFIED BY EMPLOYER UNDER THIS AGREEMENT.
17.
MISCELLANEOUS.
(A)
BINDING EFFECT; ASSIGNMENT.
THIS AGREEMENT
SHALL BE BINDING ON AND INURE TO THE BENEFIT OF EMPLOYER AND ITS SUCCESSORS AND
PERMITTED ASSIGNS.
THIS
12
Agreement shall also be binding on and inure to the benefit of Executive and his
heirs, executors, administrators and legal representatives.
This Agreement
shall not be assignable by