GOVERNING LAW, ETC.
(I)
THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO
INTERPRETATION, SUBSTANTIVE EFFECT AND ENFORCEABILITY, BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF
THAT WOULD REQUIRE APPLICATION TO THE LAWS OF ANOTHER JURISDICTION OTHER THAN
THOSE THAT ARE MANDATORILY APPLICABLE.
(II)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 12(B).
(III)
IN THE EVENT THE EXECUTIVE PREVAILS IN ANY CONTEST BY EXECUTIVE
TO ENFORCE HIS RIGHTS UNDER THIS AGREEMENT OR ANOTHER DISPUTE PERTAINING TO THE
TERMS OF THIS AGREEMENT COMMENCED BY EITHER PARTY, THE COMPANY SHALL PAY, TO THE
FULL EXTENT PERMITTED BY LAW, ALL LEGAL FEES AND EXPENSES WHICH THE EXECUTIVE
MAY REASONABLY INCUR AS A RESULT.
(IV)
IN THE EVENT THAT THE COMPANY REFUSES OR OTHERWISE FAILS TO MAKE A
PAYMENT WHEN DUE AND IT IS ULTIMATELY DECIDED BY A COURT OF COMPETENT
JURISDICTION THAT THE EXECUTIVE IS ENTITLED TO SUCH PAYMENT, SUCH PAYMENT SHALL
BE INCREASED TO REFLECT AN INTEREST EQUIVALENT FOR THE PERIOD OF DELAY,
COMPOUNDED
15
ANNUALLY, EQUAL TO THE RATE OF THE COMPANY'S REVOLVING CREDIT IN EFFECT DURING
THE PERIOD OF NON-PAYMENT.
(C)
TAXES.
THE COMPANY SHALL HAVE THE POWER TO WITHHOLD, OR REQUIRE
EXECUTIVE TO REMIT TO THE COMPANY PROMPTLY UPON NOTIFICATION OF THE AMOUNT DUE,
AN AMOUNT SUFFICIENT TO SATISFY THE STATUTORY MINIMUM AMOUNT OF ALL FEDERAL,
STATE, LOCAL AND FOREIGN WITHHOLDING TAX REQUIREMENTS WITH RESPECT TO ANY
PAYMENT OF CASH, OR ISSUANCE OR DELIVERY OF ANY OTHER PROPERTY HEREUNDER TO
EXECUTIVE OR ANY THIRD PARTY, AND THE COMPANY MAY DEFER ANY SUCH PAYMENT OF CASH
OR ISSUANCE OR DELIVERY OF SUCH OTHER PROPERTY UNTIL SUCH REQUIREMENTS ARE
SATISFIED.
(D)
AMENDMENTS; WAIVER.
NO PROVISION OF THIS AGREEMENT MAY BE
MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH MODIFICATION, WAIVER OR DISCHARGE IS
APPROVED BY THE BOARD OR A PERSON AUTHORIZED THEREBY AND IS AGREED TO IN WRITING
BY EXECUTIVE AND, IN THE CASE OF ANY SUCH MODIFICATION, WAIVER OR DISCHARGE
AFFECTING THE RIGHTS OR OBLIGATIONS OF THE COMPANY, IS APPROVED BY THE BOARD OR
A PERSON AUTHORIZED THEREBY.