EXHIBIT 10.6
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0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
609.449.1000
xxxxxxxxxxxx.xxx
XXXXX
ENTERTAINMENT RESORT
September 22, 0000
Xxxxxxxx XxXxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Dear Virginia:
This letter agreement (the "Agreement") will confirm your employment
with Xxxxx Entertainment Resorts Holdings, L.P. ("TERH") and/or its affiliates
(collectively "Xxxxx").
Position: Executive Vice President, Chief Information Officer
(or such other position at TERH as TERH may
reasonably request and for which you are qualified by
training and experience).
Base Salary: Annual Salary of $350,000 (reviewed annually and
adjusted in accordance with current TERH policy).
Travel: Reimbursement of all reasonable travel expenses at
appropriate coach rates including costs associated
with any tax consequences incurred by you for you to
travel to and from your home in Missouri at a
frequency to be approved by the President and CEO.
Annual Incentive Percentage of base salary upon achievement of
Bonus: financial parameters as approved by the Compensation
Committee of TERH.
Long Term Grants of equity compensation awards or options under
Incentive: any long term incentive program adopted by the
Compensation Committee of TERH. In the event of a
Change of Control, or a Change of Control with
Special Circumstances, all equity awards shall be
fully vested and any restrictions lifted.
Benefits: Benefits and perquisites which Xxxxx provides to its
employees generally as determined by Xxxxx at the
level of other similarly situated executives.
Office Space: Reimbursement of direct payment of any costs
associated with the rental or lease of office space,
including equipment, furniture and other reasonable
supplies as pre-approved by the president and CEO.
Terms of Your continued employment and severance rights shall
Employment/ be subject to the terms and conditions set forth in
Severance: Annex A hereto.
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Change of You may terminate your employment on your own
Control: initiative upon a Change of Control (as defined in
Annex A ) and in such event you shall be entitled to
the severance and other rights and obligations set
forth in Annex A.
Non-compete: a. You agree that if you terminate your
employment on your own initiative without
Good Reason or if it is terminated for Cause
you will not accept employment, either as an
employee, consultant or independent
contractor, with or on behalf of any casino
licensee or casino license applicant in any
market where Xxxxx operates a casino
facility or within 200 miles of such casino
facility for the remaining months of the
first year of employment;
b. You agree that for a period of twelve (12)
months after the termination of your
employment with Xxxxx you shall not solicit
or contact, directly or through any other
company, any customers whom you have met,
serviced, developed or continued to develop
during your tenure with Xxxxx;
c. You agree that a period of twelve (12)
months after the termination of your
employment with Xxxxx you shall not solicit
or otherwise discuss employment, directly or
through any other company, any employees of
Xxxxx, or any of its related or affiliated
companies.
d. You acknowledge and agree that the
restrictive covenants set forth herein are
reasonable as to duration, terms and
geographical area and that the same are
necessary to protect the legitimate
interests of Xxxxx, impose no undue hardship
on you and are not injurious to the public.
You acknowledge that upon your breach of this
Agreement, Xxxxx would sustain irreparable harm from
such breach, and, therefore, you agree that in
addition to any other remedies which Xxxxx may have
under this Agreement or otherwise, Trump's
obligations to provide severance benefits to you
shall immediately terminate, you shall have no claim
to receive such benefits from Xxxxx, the release
document referred to above shall remain in all
respects valid and binding, and Xxxxx shall be
entitled to obtain equitable relief, including
specific performance and injunctions, restraining you
from committing or continuing any such violation of
this section.
Indemnification: Xxxxx shall cover you under directors and officers
liability insurance both during, and while potential
liability exists, after your employment with Xxxxx in
commercially reasonable amounts. Xxxxx shall during
and after your employment indemnify and hold you
harmless to the fullest extent permitted by
applicable law with regard to your actions or
inactions in the performance of your duties as an
officer, director and/or employee of Xxxxx and its
affiliates or as a fiduciary of any benefit plan of
Xxxxx and its affiliates.
Attorney's Fees: TERH shall promptly reimburse you for the reasonable
legal fees and expenses incurred in negotiating this
Agreement.
Representation: You acknowledge that your entering into this
Agreement does not violate any other agreement to
which you or anyone on your behalf is a party.
Entire Agreement: This Agreement constitutes the entire understanding
of the parties with respect to the subject matter
hereof and supersedes and voids any and all prior
agreements or understandings, written or oral,
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regarding the subject matter hereof.
GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey.
Your employment is contingent upon the following:
o Obtaining or possessing a New Jersey Key license or such
equivalent qualification required by New Jersey law,
o Satisfactory completion of a background and reference check,
o Your signing this Agreement, the Xxxxx Code of Business Conduct
and the Xxxxx Employee Handbook,
o Compliance with all employment policies including the successful
completion of a drug test; and
o Your submission of appropriate documentation of employment
eligibility in the United States.
Very truly yours,
/s/ XXXXX X. XXXXX
XXXXX X. XXXXX
President and CEO
JBP/ams
I agree and accept the terms of this Agreement.
/s/ Xxxxxxxx XxXxxxxx
--------------------------------------- ---------------------
Xxxxxxxx XxXxxxxx Date
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ANNEX A
TO XXXXXXXX XXXXXXXX
LETTER AGREEMENT
1. Separation of Employment.
(a) Death. The death of Xxxxxxxx XxXxxxxx ("Executive") shall
automatically terminate Xxxxx Entertainment Resorts, Inc. ("TER") and Xxxxx
Entertainment Resorts Holdings, LP (hereinafter, together with TER,
collectively, referred to as the "Company") obligations hereunder, except as set
forth in 2(a) below.
(b) Total Disability. If Executive is disabled so that in the
Company's opinion he would qualify for disability under the Company's Long Term
Disability Plan if he applied for it or, if there is no plan, Executive is
unable to perform the services required of him due to physical or mental injury
or illness for six consecutive months or for six months in any period of twelve
months, (a "Total Disability"), the Company shall be entitled to separate
Executive's employment with Executive reserving his rights to apply for
disability benefits based on becoming disabled during active employment. This
separation will terminate the Employer's obligations to Executive, except as set
forth in Section 2(b).
(c) Separation for Cause. At any time during the term of this
Agreement, the Company may separate Executive's employment for cause, in which
event Executive's employment will immediately terminate. For the purpose of this
Agreement, the Company shall have "Cause" to separate Executive's employment for
any of the following reasons: (1) dishonesty or fraud, (2) disclosure of
confidential information regarding the Company, (3) aiding a competitor (as
defined in the Non-compete provisions of the Letter Agreement) of the Company or
other material breach of the Non-compete provisions of the Letter Agreement, (4)
the use by Executive of controlled substances (not legally prescribed by a
physician) or the use of alcohol that interferes, in the sole but good faith
discretion of the Company, with the performance of Executive duties, (5) willful
misconduct, acts of moral turpitude, malfeasance or gross negligence in the
performance of his duties hereunder, or (6) the failure to obtain and maintain
all licenses, qualifications and credentials required by any state or Federal
agency or authority having jurisdiction over the Company, or its employees or
properties, in any case under clauses (1) through (6) that are materially
injurious to the business or reputation of the Company or any of it affiliates,
as determined in good faith by the Board or the CEO. Separation for Cause must
be approved by the CEO or the Board but only after reasonable notice to
Executive and a reasonable opportunity to explain and cure the conduct, unless
under the circumstances there is no cure or the time required for a cure would
materially harm the Company or any of its affiliates. The failure of Executive
to meet financial projections, budgets or target performance objectives shall
not be deemed willful misconduct or gross negligence for the purposes of this
Agreement.
(d) Separation Without Cause, or For Good Reason. Notwithstanding
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anything to the contrary contained in this Agreement, the Company may in its
sole discretion, at any time, separate Executive from employment with the
Company Without Cause upon sixty (60) days' prior written notice, and Executive
may initiate a separation for Good Reason upon thirty (30) days' prior written
notice (hereinafter, any such separation by the Company or Executive shall be
called a "Separation Without Cause").
(e) Separation by Executive Without Good Reason. Executive may
terminate his employment at any time Without Good Reason upon thirty (30) days
prior written notice.
(f) Notice of Separation. Any purported separation of Executive's
employment hereunder by the Company or Executive (other than separation by
reason of the death of Executive) shall be effective when communicated to the
other party by a Notice of Separation. For the purposes of this Agreement, a
"Notice of Separation" shall be a written notice indicating the specific
separation provision in this Agreement relied upon and the Separation Date. If
Executive vacates or abandons his job and does not give Notice of Separation,
the Separation Date will be the last day worked or such other date as the
Company may reasonably select.
2. Payments Upon Separation.
(a) Payments Upon Death. If Executive's employment hereunder is
separated by reason of Death during his active employment, the Company shall pay
to Executive's estate his Base Salary and accrued PTO through the Separation
Date at the rate in effect on the Separation Date and a pro rata bonus for
current year based on performance of the Company, paid in the following year
when bonuses are normally distributed. His estate and beneficiary(ies) will
receive the benefits to which they are entitled under the terms of the
applicable benefit plans and programs by reason of a participant's death during
active employment. If Executive dies during the Salary Continuation Period, as
defined below, the remaining Salary Continuation will be paid in a lump sum to
Executive's estate and his estate and/or beneficiary(ies) will receive the
benefits applicable to an employee who dies during employment.
(b) Payments Upon Total Disability. If Executive incurs a
Separation for Total Disability, then the terms and provisions of the Company
benefit plans and the programs (including the Company's Long Term Compensation
Plan) that are applicable in the event of such disability of an employee shall
apply in lieu of the salary and benefits under this Agreement except that
Executive shall receive a pro rata bonus for current year based on performance
of the Company, paid in the following year when bonuses are normally
distributed. If Executive becomes disabled during the Salary Continuation
Period, he will not be eligible for benefits under the Company's Long Term
Disability Plan and will be entitled only to the salary and benefits described
in Paragraph 2(c) below for the periods set forth in those respective
paragraphs.
(c) Payments Upon Separation for Cause or Without Good Reason. If
Executive's employment hereunder is separated by the Company for Cause pursuant
to Section 1(c) or by Executive Without Good Reason pursuant to Section 1(e),
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then the Company shall pay Executive his Base Salary and accrued PTO through the
Separation Date at the rate in effect at the time notice of separation is given
and the Company shall have no further obligation to Executive other than COBRA
rights, if any, and other normal rights offered to terminated employees under
benefit programs, if any.
(d) Payments Upon Separation By the Company Without Cause or by
Executive With Good Reason. If Executive's employment is separated by the
Company Without Cause or by Executive with Good Reason pursuant to Section 1(d),
then the Company shall, as severance pay, provide to Executive the payment and
benefits set forth in this Section; provided, however, that Executive's
entitlement to any such payments or benefits shall be expressly subject to the
Company receiving a release prepared by the Company and executed by Executive,
in the form then used by the Company for employees generally, waiving and
releasing the Company, its subsidiaries and their officers, directors, agents,
benefit plan trustees and employees from any and all claims (except stockholder
rights, rights under this Agreement, rights to indemnification and rights to
employee benefits then accrued and vested), whether known or unknown, and
regardless of type, cause or nature, including but not limited to claims arising
under all salary, bonus, stock, vacation (PTO), insurance and other benefit
plans and all state and federal anti-discrimination, civil rights and human
rights laws, ordinances and statutes, including Title VII of the Civil Rights
Act of 1964 and 1991, the Age Discrimination in Employment Act as amended by the
Older Worker's Benefit Protection Act of 1990, and the American's with
Disabilities Act covering Executive's employment with the Company, its
subsidiaries and affiliates, and the cessation of that employment (the
"Release"). Pursuant to this Section 2(d), Executive will receive the following:
(i) The Company shall pay Executive over the next fifty-two
(52) weeks, Salary Continuation, plus PTO earned and unused through the
Separation Date (PTO paid in a lump sum) and Executive shall receive a
pro rata bonus for current year based on performance of the Company,
paid in the following year when bonuses are normally distributed.
Executive shall also be entitled to health and dental participation,
but not eligibility for the Company's Long Term Disability Plan, if
any, and no further PTO will accrue with the Company beginning the day
following the Separation Date (the "Salary Continuation Period").
Salary Continuation will be paid on a weekly basis. If Executive dies
during the Salary Continuation Period, the Company, within ten (10)
days of becoming aware of such event, will pay, by check, to his estate
the lump sum amount equal to the salary and bonus he would have been
paid during the remainder of the Salary Continuation Period (The date
of the check for the lump sum is herein referred to as the "Termination
Date"). During the Salary Continuation Period, Executive shall remain
an employee of the Company and, solely for stock option
exerciseability, group health and life insurance purposes, shall
receive service credit during that period. Executive will be
responsible for the employee portion of the cost of such insurance
during the Salary Continuation Period similar to other employees. COBRA
rights will commence at the end of the Salary Continuation Period.
(ii) Executive will be entitled, at the Company's expense, to
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Executive outplacement services being provided at that time to
terminated executives at his grade level.
(iii) All vested option grants (and those that become vested)
may be exercised during the Salary Continuation Period and may be
exercisable thereafter for a period of one year.
(iv) Executive shall receive a release from the Company except
for matters violative of law or outside the scope of his employment. If
the Company does not provide the release required pursuant to this
subsection (iv), Executive's Release shall be null, void and without
effect, and Executive shall still receive all of the payments and
benefits described in subsections (i) through (iii) above in any event.
(v) To the extent that any payment under this Agreement is
deemed to be deferred compensation subject to the requirements of
Section 409A of the Internal Revenue Code, the Company and Executive
shall amend this Agreement so that such payments will be made in
accordance with the requirements of Section 409A of the Code; provided,
however, that, if any payment due to Executive is delayed as a result
of Section 409A of the Code, Executive shall be entitled to be paid
interest on such amount at an annual rate equal to the prime rate, as
published in the Wall Street Journal, plus 2%, in effect as of
Executive's Date of Termination. Amendment of the Agreement to comply
with Section 409A of the Code will not result in Executive being
entitled to receive any reduced or enhanced benefit under this
Agreement. Notwithstanding the foregoing, in the event Executive is
subjected to income or excise taxes or other penalties under Section
409A of the Code by virtue of any amount due to him, the Company will
pay an additional amount to Executive to make Executive whole for such
taxes. Such additional amount will be paid to Executive not later than
the due date of Executive's tax return for the year in which the tax or
penalty is imposed.
(e) For the purposes of this agreement, "Good Reason" means the
occurrence, without Executive's express prior written consent (which may be
withheld for any reason or no reason), of any of the events or conditions
described in the following subsections (i) through (v), provided that Executive
shall have given notice of Good Reason to the Company and the Company shall not
have fully corrected the situation within twenty (20) days after such notice of
Good Reason.
(i) failure by the Company to pay or provide to Executive any
compensation or benefits to which Executive is entitled;
(ii) A change in Executive's status, reporting relationships,
positions, titles, offices or responsibilities that constitutes a
material change (any change following a Change in Control, as defined
below) from Executive's status, reporting relationships, positions,
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titles, offices or responsibilities as in effect immediately before
such change; or the assignment to Executive of any duties or
responsibilities that are substantially inconsistent with Executive's
status, positions, titles, offices or responsibilities as in effect
immediately before such assignment;
(iii) changing the location of Executive's principal duties to
a location outside of Atlantic City, NJ; provided that the Company may
require Executive to travel on business as long as such travel is
reasonable;
(iv) Any material uncured breach by the Company of this
Agreement or any other agreement between the Company and Executive
following notice and the cure period set forth above; or
(v) The failure by the Company to obtain, before completion of
a Change in Control, an agreement in writing from any successors and
assigns, to assume and agree to perform this Agreement.
(f) Notwithstanding the foregoing, in the event payment is due to
Executive under subsection (d) following a Change of Control, then, conditioned
upon Executive's execution and non-revocation of the Release, and in lieu of the
Salary Continuation in subsection (d)(i) above, Executive shall receive, in a
lump sum within 30 days after the Separation Date, an amount equal to the sum of
two (2) times Executive's Base Salary (or the Base Salary in effect prior to the
Change in Control, if higher) plus actual annual incentive plan bonus paid to
Executive in the prior calendar year. In such case, the COBRA reimbursement
rights provided in the Letter Agreement shall be extended to twelve (12) months
following the Separation Date. In addition, all equity awards (stock, stock
options, restricted stock or otherwise) shall immediately be fully vested and
any restrictions lifted.
(g) Notwithstanding the foregoing, in the event of a Change of
Control with Special Circumstances and the termination of Executive's employment
in accordance with Section 1 (d) above within six (6) months from such Change of
Control with Special Circumstances, then, conditioned upon Executive's execution
and non-revocation of the Release, Executive shall receive, in a lump sum within
30 days after the Separation Date, an amount equal to the sum of two (2) times
Executive's Base Salary (or the Base Salary in effect prior to the Change in
Control with Special Circumstances, if higher) plus actual annual incentive plan
bonus paid to Executive in the prior calendar year. In such case, the COBRA
reimbursement rights provided in the Letter Agreement shall be extended to
twelve (12) months following the Separation Date. All equity awards (stock,
stock options, restricted stock or otherwise) shall immediately be fully vested
and any restrictions lifted upon any Change of Control with Special
Circumstances.
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3. Change of Control Definition and Payments.
(a) For the purpose of this Employment Agreement, (i) a "Change of
Control" shall mean:
(i) The acquisition, other than a Change of Control with
Special Circumstances, by any person, entity or group, within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934 (the "Exchange Act"), (excluding, for this purpose, (A) the
Company or its subsidiaries, or any employee benefit plan of the
Company or its subsidiaries which acquires beneficial ownership of
voting securities of the Company or (B) Xxxxxx X. Xxxxx or any entity
wholly-owned by him), of beneficial ownership, (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either
the then outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors;
(ii) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of
the Directors of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board;
(iii) Consummation of (A) a reorganization, merger or
consolidation, in each case, with respect to which persons who were the
stockholders of the Company immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities, or (B) a liquidation or
dissolution of the Company or (C) the sale of all or substantially all
of the assets of the Company; or
(iv) If employed by only one operating affiliate of TERH, the
sale or transfer of control over (whether by merger or otherwise) the
TERH affiliate owned casino hotel at which Executive is employed.
and, (ii) A "Change of Control with Special Circumstances"
shall mean the acquisition by Xxxxxx X. Xxxxx or any entity
wholly-owned by him of 50% or more of either the then
outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors.
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(b) Anything in this Agreement to the contrary notwithstanding, in
the event that it shall be determined that any payment or distribution by the
Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Payment"), would constitute an "excess parachute payment" within
the meaning of Section 280G of the Code, Executive shall be paid an additional
amount (the "Gross-Up Payment") such that the net amount retained by Executive
after deduction of any excise tax imposed under Section 4999 of the Code, and
any federal, state and local income and employment tax and excise tax imposed
upon the Gross-Up Payment shall be equal to the Payment. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal rate of federal
income and employment taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest marginal
rate of taxation in the state and locality of Executive's residence on the
Termination Date, net of the maximum reduction in federal income taxes that may
be obtained from the deduction of such state and local taxes.
(c) All determinations to be made under this Section 3 shall be
made, upon the request of either party, by an independent public accountant
immediately prior to the Change of Control (the "Accounting Firm"), which firm
shall provide its determinations and any supporting calculations both to the
Company and Executive within 10 days of the Termination Date. Any such
determination by the Accounting Firm shall be binding upon the Company and
Executive. Within five days after the Accounting Firm's determination, the
Company shall pay (or cause to be paid) or distribute (or cause to be
distributed) to or for the benefit of Executive such amounts as are then due to
Executive under this Employment Agreement.
(d) Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive knows of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the thirty day period following the date on which it
gives such notice to the Company (or such shorter period ending on the date that
any payment of taxes with respect to such claim is due). If the Company notifies
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting claim as
the Company shall reasonably request in from time to time, including,
without limitation, accepting legal representation with to such claim
by an attorney reasonably selected by the company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
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(iv) permit the Company to participate in any relating to such
claim; provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
Executive harmless, on an after-tax basis, for any Excise Tax, income
tax or employment tax, including interest and penalties, with respect
thereto, imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing provisions of
this Section 3, the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings, hearing and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and
Executive agrees to prosecute such contest to a termination before any
administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Company shall determine; provided
further, however, that if the Company directs Executive to pay such
claim and xxx for a refund the Company shall advance the amount of such
payment to Executive, on an interest-free basis and shall indemnify and
hold Executive harmless, on an after-tax basis, from any Excise Tax,
income tax or employment tax, including interest or penalties with
respect thereto, imposed with respect to income with respect to such
advance; and provided further that any extension of the statute of
limitations relating to payment of taxes for the taxable year of
Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other
taxing authority.
(e) If, after the receipt by Executive of an amount advanced by
the Company pursuant to this Section, Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of subsection (c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to this Section, a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
(f) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (b) and (c) above shall
be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations pursuant to
subsections (b) and (c) above, except for claims, damages or expenses resulting
from the gross negligence or willful misconduct of the Accounting Firm.
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