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
RECEIVED AN OPPORTUNITY TO CONSULT INDEPENDENT COUNSEL, BEFORE EXECUTING THIS
AGREEMENT BUT HAS CHOSEN NOT TO EXERCISE THAT RIGHT.
10.
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, BUT NOT LIMITED TO, 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
MARCH 31, 2003 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
16
DOES NOT COMPROMISE OR ASSUME THE DEFENSE OF ANY INDEMNIFIABLE CLAIM OR ACTION
AGAINST THE EXECUTIVE, THE COMPANY SHALL PROMPTLY CAUSE THE EXECUTIVE TO BE PAID
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 IS 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 BY-LAWS OR OTHERWISE.
(B)
DIRECTORS' AND OFFICERS' INSURANCE.
THE
COMPANY SHALL USE ITS BEST EFFORTS TO MAINTAIN COMMERCIALLY REASONABLE
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE IN RESPECT OF THE EXECUTIVE'S
APPOINTMENT AS A DIRECTOR OR OFFICER OF THE COMPANY.
11.
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