TO THE FULLEST EXTENT THAT SUCH COURT DEEMS REASONABLE,
AND THE AGREEMENT SHALL THEREBY BE REFORMED TO REFLECT THE SAME.
(G)
ALL OF THE COVENANTS IN THIS SECTION 9 SHALL BE CONSTRUED AS AN
AGREEMENT INDEPENDENT OF ANY OTHER PROVISION IN THIS AGREEMENT, AND THE
EXISTENCE OF ANY CLAIM OR CAUSE OF ACTION OF EXECUTIVE AGAINST THE COMPANY
WHETHER PREDICATED ON THIS AGREEMENT OR OTHERWISE SHALL NOT CONSTITUTE A DEFENSE
TO THE ENFORCEMENT BY THE COMPANY OF SUCH COVENANTS.
IT IS SPECIFICALLY AGREED
THAT THE DURATION OF THE PERIOD DURING WHICH THE AGREEMENTS AND COVENANTS OF
EXECUTIVE MADE IN THIS SECTION 9 SHALL BE EFFECTIVE SHALL BE COMPUTED BY
EXCLUDING FROM SUCH COMPUTATION ANY TIME DURING WHICH EXECUTIVE IS IN VIOLATION
OF ANY PROVISION OF THIS SECTION 9.
(H)
NOTWITHSTANDING ANY OF THE FOREGOING, IF ANY APPLICABLE LAW,
JUDICIAL RULING OR ORDER SHALL REDUCE THE TIME PERIOD DURING WHICH EXECUTIVE
SHALL BE PROHIBITED FROM ENGAGING IN ANY COMPETITIVE ACTIVITY DESCRIBED IN
SECTION 9 HEREOF, THE PERIOD OF TIME FOR WHICH EXECUTIVE SHALL BE PROHIBITED
PURSUANT TO SECTION 9 HEREOF SHALL BE THE MAXIMUM TIME PERMITTED BY LAW.
10.
SUCCESSORS; BINDING AGREEMENT.
THIS AGREEMENT SHALL BE BINDING
UPON AND INURE TO THE BENEFIT OF SUCCESSORS AND PERMITTED ASSIGNS OF THE
PARTIES.
THIS AGREEMENT MAY NOT BE ASSIGNED, NOR MAY PERFORMANCE OF ANY DUTY
HEREUNDER BE DELEGATED, BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER; PROVIDED, HOWEVER, THE COMPANY MAY ASSIGN THIS AGREEMENT TO ANY SUCCESSOR
TO ITS BUSINESS, INCLUDING BUT NOT LIMITED TO IN CONNECTION WITH ANY SUBSEQUENT
MERGER, CONSOLIDATION, SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OR STOCK
OF THE COMPANY OR SIMILAR TRANSACTION INVOLVING THE COMPANY OR A SUCCESSOR
CORPORATION.
11.
ADDITIONAL PAYMENTS BY THE COMPANY.
(A)
IF IT IS DETERMINED (AS HEREAFTER PROVIDED) THAT ANY PAYMENT OR
DISTRIBUTION BY THE COMPANY TO OR FOR THE BENEFIT OF THE EXECUTIVE, WHETHER PAID
OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO THE TERMS OF THIS
AGREEMENT OR OTHERWISE PURSUANT TO OR BY REASON OF ANY OTHER AGREEMENT, POLICY,
PLAN, PROGRAM OR ARRANGEMENT, INCLUDING WITHOUT LIMITATION ANY OPTION, SHARE
APPRECIATION RIGHT OR SIMILAR RIGHT, OR THE LAPSE OR TERMINATION OF ANY
RESTRICTION ON OR THE VESTING OR EXERCISABILITY OF ANY OF THE FOREGOING (A
"PAYMENT"), WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE (OR ANY SUCCESSOR PROVISION THERETO) OR TO ANY SIMILAR TAX IMPOSED BY STATE
OR LOCAL LAW, OR ANY INTEREST OR PENALTIES WITH RESPECT TO SUCH EXCISE TAX (SUCH
TAX OR TAXES, TOGETHER WITH ANY SUCH INTEREST AND PENALTIES, ARE HEREAFTER
COLLECTIVELY REFERRED TO AS THE "EXCISE TAX"), THEN EXECUTIVE WILL BE ENTITLED
TO RECEIVE AN ADDITIONAL PAYMENT OR PAYMENTS (A "GROSS-UP PAYMENT") IN AN AMOUNT
SUCH THAT, AFTER PAYMENT BY EXECUTIVE OF ALL TAXES (INCLUDING ANY INTEREST OR
PENALTIES IMPOSED WITH RESPECT TO SUCH TAXES), INCLUDING ANY EXCISE TAX, IMPOSED
UPON THE GROSS-UP PAYMENT, EXECUTIVE RETAINS AN AMOUNT OF THE GROSS-UP PAYMENT
EQUAL TO THE EXCISE TAX