NECESSARY OR APPROPRIATE TO RESTRAIN EXECUTIVE FROM COMMITTING ANY VIOLATION OF
THE COVENANTS AND OBLIGATIONS CONTAINED IN SECTIONS 7, 8 AND 10.
THESE
INJUNCTIVE REMEDIES ARE CUMULATIVE AND IN ADDITION TO ANY OTHER RIGHTS AND
REMEDIES THE COMPANY, ASBURY OR ANY SUCH AFFILIATE MAY HAVE AT LAW OR IN
EQUITY.
FURTHER, EXECUTIVE REPRESENTS THAT HIS EXPERIENCE AND CAPABILITIES ARE
SUCH THAT THE PROVISIONS OF SECTIONS 7, 8 AND 10 WILL NOT PREVENT HIM FROM
EARNING HIS LIVELIHOOD.
IF A JUDICIAL DETERMINATION IS MADE THAT ANY OF THE
PROVISIONS OF SECTIONS 7, 8 OR 10 CONSTITUTE AN UNREASONABLE OR OTHERWISE
UNENFORCEABLE RESTRICTION AGAINST EXECUTIVE, THE PROVISIONS OF SUCH SECTION
SHALL BE RENDERED VOID ONLY TO THE EXTENT THAT SUCH JUDICIAL DETERMINATION FINDS
SUCH PROVISIONS TO BE UNREASONABLE OR OTHERWISE UNENFORCEABLE.
MOREOVER,
NOTWITHSTANDING THE FACT THAT ANY PROVISION OF SUCH SECTIONS IS DETERMINED NOT
TO BE SPECIFICALLY ENFORCEABLE, THE COMPANY SHALL NEVERTHELESS BE ENTITLED TO
RECOVER MONETARY DAMAGES AS A RESULT OF EXECUTIVE'S BREACH OF SUCH PROVISION.
12.
ASSUMPTION OF AGREEMENT.
THE COMPANY WILL REQUIRE ANY SUCCESSOR
(BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF
THE BUSINESS AND/OR ASSETS OF THE COMPANY, 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 THE COMPANY WOULD
BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. FAILURE OF THE
COMPANY 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 THE COMPANY IN THE SAME AMOUNT AND ON THE SAME TERMS AS
EXECUTIVE WOULD BE ENTITLED HEREUNDER IF THE COMPANY TERMINATED HIS EMPLOYMENT
WITHOUT CAUSE AS CONTEMPLATED BY SECTION 6, EXCEPT THAT FOR PURPOSES OF
IMPLEMENTING THE FOREGOING, THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES
EFFECTIVE SHALL BE DEEMED THE DATE OF TERMINATION.
AS USED IN THIS AGREEMENT,
"COMPANY" SHALL MEAN THE COMPANY AS HEREIN BEFORE DEFINED AND ANY SUCCESSOR TO
ITS BUSINESS AND/OR ASSETS AS AFORESAID WHICH EXECUTES AND DELIVERS THE
AGREEMENT PROVIDED FOR IN THIS SECTION 12 OR WHICH OTHERWISE BECOMES BOUND BY
ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT BY OPERATION OF LAW.
13.
ENTIRE AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND ALL PROMISES, REPRESENTATIONS,
UNDERSTANDINGS, ARRANGEMENTS AND PRIOR AGREEMENTS RELATING TO SUCH SUBJECT
MATTER (INCLUDING THOSE MADE TO OR WITH EXECUTIVE BY ANY OTHER PERSON OR ENTITY)
ARE MERGED HEREIN AND SUPERSEDED HEREBY.
14.
INDEMNIFICATION.
THE COMPANY AGREES THAT IT SHALL INDEMNIFY AND
HOLD HARMLESS EXECUTIVE TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW
AND THE CERTIFICATE OF FORMATION AND LIMITED PARTNERSHIP AGREEMENT OF THE
COMPANY 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