UNDER SECTION
409A OF THE CODE, SUCH PAYMENTS OR OTHER BENEFITS SHALL BE DEFERRED IF DEFERRAL
WILL MAKE SUCH PAYMENT OR OTHER BENEFITS COMPLIANT UNDER SECTION 409A OF THE
CODE, OR OTHERWISE SUCH PAYMENT OR OTHER BENEFITS SHALL BE RESTRUCTURED, TO THE
EXTENT POSSIBLE, IN A MANNER, DETERMINED BY THE BOARD OF DIRECTORS OF THE
COMPANY, THAT DOES NOT CAUSE SUCH AN ACCELERATED OR ADDITIONAL TAX.
THE COMPANY
SHALL CONSULT WITH THE EXECUTIVE IN GOOD FAITH REGARDING THE IMPLEMENTATION OF
THE PROVISIONS OF THIS SECTION 9.9.
SECTION 9.10
NO MITIGATION.
THE EXECUTIVE SHALL NOT BE REQUIRED TO
MITIGATE THE AMOUNT OF ANY PAYMENT PROVIDED FOR PURSUANT TO THIS AGREEMENT BY
SEEKING OTHER EMPLOYMENT OR OTHERWISE.
SECTION 9.11
HEADINGS.
THE PARAGRAPH HEADINGS HAVE BEEN INSERTED FOR
PURPOSES OF CONVENIENCE AND SHALL NOT BE USED FOR INTERPRETIVE PURPOSES.
SECTION 9.12
AFFILIATE.
AS USED IN THIS AGREEMENT, "AFFILIATE" SHALL MEAN
ANY PERSON OR ENTITY WHICH DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE
INTERMEDIARIES OWNS OR CONTROLS, IS OWNED OR CONTROLLED BY, OR IS UNDER COMMON
OWNERSHIP OR CONTROL WITH, THE COMPANY.
SECTION 9.13
ASSIGNMENT.
THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER, ARE PERSONAL AND NEITHER THIS AGREEMENT, NOR ANY
RIGHT, BENEFIT OR OBLIGATION OF EITHER PARTY HERETO, SHALL BE SUBJECT TO
VOLUNTARY OR INVOLUNTARY ASSIGNMENT, ALIENATION OR TRANSFER, WHETHER BY
OPERATION OF LAW OR OTHERWISE, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTY EXCEPT THAT VESTED RIGHTS TO PAYMENT SHALL BE SUBJECT TO DEVISE, AND SHALL
DESCEND IN ACCORDANCE WITH APPLICABLE LAWS OF INHERITANCE.
SECTION 9.14
LEGAL FEES.
IF EITHER PARTY INSTITUTES ANY LEGAL ACTION TO
ENFORCE HIS OR ITS RIGHTS UNDER, OR TO RECOVER DAMAGES FOR BREACH OF THIS
AGREEMENT, THE COMPANY SHALL PAY UP TO AN AGGREGATE OF $25,000 OF EXECUTIVE'S
REASONABLE ACTUAL EXPENSES INCURRED IN PURSUIT OR DEFENSE OF SUCH LEGAL ACTION.
EXECUTIVE SHALL SUBMIT DOCUMENTATION SUBSTANTIATING SUCH EXPENSES TO THE
COMPANY.
THE COMPANY SHALL REIMBURSE EXECUTIVE FOR ANY ACTUAL EXPENSES FOR
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attorney's fees and disbursements incurred by him in respect of the negotiation
and execution of this Agreement.
Section 9.15 INDEPENDENT COUNSEL. The Executive acknowledges that he has
received a copy of this Agreement, that he has read and fully understands this
Agreement, and that he has been advised to seek legal counsel to aid in the
understanding hereof and that he has retained legal counsel of his own choosing.
SECTION 9.16
TERM.
TERMINATION OF THIS AGREEMENT PURSUANT TO THE
PROVISIONS OF SECTION 2.1 HEREOF SHALL NOT AFFECT ANY RIGHT OR OBLIGATION OF
EITHER PARTY HERETO WHICH IS ACCRUED OR VESTED PRIOR TO OR UPON SUCH TERMINATION
OR THE RIGHTS AND OBLIGATIONS SET FORTH IN ARTICLES IV THROUGH IX HEREOF.
SECTION 9.17
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTIES WITH REGARD TO THE SUBJECT MATTER HEREOF, AND CONTAINS
ALL THE COVENANTS, PROMISES, REPRESENTATIONS, WARRANTIES AND AGREEMENTS BETWEEN
THE PARTIES WITH RESPECT TO EMPLOYMENT OF EXECUTIVE BY THE COMPANY. EACH PARTY
TO THIS AGREEMENT ACKNOWLEDGES THAT NO REPRESENTATION, INDUCEMENT,