SUCH A
FAILURE BY THE EXECUTIVE WOULD CAUSE, THAT THE CONSIDERATION RECEIVED BY THE
EXECUTIVE FOR ENTERING INTO THESE COVENANTS AND AGREEMENTS IS FAIR, THAT THE
COVENANTS AND AGREEMENTS AND THEIR ENFORCEMENT WILL NOT DEPRIVE THE EXECUTIVE OF
AN ABILITY TO EARN A REASONABLE LIVING, AND THAT THE EXECUTIVE HAS ACQUIRED
KNOWLEDGE AND SKILLS IN THIS FIELD THAT WILL ALLOW THE EXECUTIVE TO OBTAIN
EMPLOYMENT WITHOUT VIOLATING THESE COVENANTS AND AGREEMENTS.
THE EXECUTIVE
FURTHER EXPRESSLY ACKNOWLEDGES THAT THE EXECUTIVE HAS HAD THE OPPORTUNITY TO
CONSULT WITH COUNSEL OR HAS CONSULTED COUNSEL BEFORE EXECUTING THIS AGREEMENT.
9.
INDEMNIFICATION.
(A)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL
INDEMNIFY THE EXECUTIVE AGAINST, AND SAVE AND HOLD THE EXECUTIVE HARMLESS FROM,
ANY DAMAGES, LIABILITIES, LOSSES, JUDGMENTS, PENALTIES, FINES, AMOUNTS PAID OR
TO BE PAID IN SETTLEMENT, COSTS AND REASONABLE EXPENSES (INCLUDING WITHOUT
LIMITATION ATTORNEYS' FEES AND EXPENSES), RESULTING FROM, ARISING OUT OF OR IN
CONNECTION WITH ANY THREATENED, PENDING OR COMPLETED CLAIM, ACTION, PROCEEDING
OR INVESTIGATION (WHETHER CIVIL OR CRIMINAL) AGAINST OR AFFECTING THE EXECUTIVE
BY REASON OF THE EXECUTIVE'S SERVICE FROM AND AFTER THE EFFECTIVE DATE AS AN
OFFICER, DIRECTOR OR EMPLOYEE OF, OR CONSULTANT TO, ANY MEMBER OF THE COMPANY
AFFILIATED GROUP, OR IN ANY CAPACITY AT THE REQUEST OF ANY MEMBER OF THE COMPANY
AFFILIATED GROUP, OR AN OFFICER, DIRECTOR OR EMPLOYEE THEREOF, IN OR WITH REGARD
TO ANY OTHER ENTITY, EMPLOYEE BENEFIT PLAN OR ENTERPRISE (OTHER THAN ARISING OUT
OF THE
EXECUTIVE'S ACTS OF MISAPPROPRIATION OF FUNDS OR ACTUAL FRAUD).
IN THE EVENT
THE COMPANY DOES NOT COMPROMISE OR ASSUME THE DEFENSE OF ANY INDEMNIFIABLE CLAIM
OR ACTION AGAINST THE EXECUTIVE, THE COMPANY SHALL PROMPTLY PAY TO THE EXECUTIVE
TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL COSTS AND EXPENSES INCURRED OR TO
BE INCURRED BY THE EXECUTIVE IN DEFENDING OR RESPONDING TO ANY CLAIM OR
INVESTIGATION IN ADVANCE OF THE FINAL DISPOSITION THEREOF; PROVIDED, HOWEVER,
THAT IF IT IS ULTIMATELY DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION (FROM WHOSE DECISION NO APPEALS MAY BE TAKEN, OR THE TIME FOR
APPEAL HAVING LAPSED) THAT THE EXECUTIVE WAS NOT ENTITLED TO INDEMNITY
HEREUNDER, THEN THE EXECUTIVE SHALL REPAY FORTHWITH ALL AMOUNTS SO ADVANCED.
THE COMPANY MAY NOT AGREE TO ANY SETTLEMENT OR COMPROMISE OF ANY CLAIM AGAINST
THE EXECUTIVE, OTHER THAN A SETTLEMENT OR COMPROMISE SOLELY FOR MONETARY DAMAGES
FOR WHICH THE COMPANY SHALL BE SOLELY RESPONSIBLE, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE EXECUTIVE, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
THIS RIGHT TO INDEMNIFICATION SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, ANY
OTHER RIGHT TO INDEMNIFICATION TO WHICH THE EXECUTIVE SHALL BE ENTITLED PURSUANT
TO THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS OR OTHERWISE.
10.
MISCELLANEOUS.
(A)
NON-WAIVER OF RIGHTS.
THE FAILURE TO ENFORCE AT ANY TIME THE
PROVISIONS OF THIS AGREEMENT OR TO REQUIRE AT ANY TIME PERFORMANCE BY THE OTHER
PARTY OF ANY OF THE PROVISIONS HEREOF SHALL IN NO WAY BE CONSTRUED TO BE A