exv10w48







EXHIBIT 10.48




PRIVATE & CONFIDENTIAL



December 27, 2010




Russell Hammer

4478 Wellington Drive

Long Grove, IL 60047



Dear Russ:



On behalf of Orbitz Worldwide, Inc. (together with its subsidiaries, collectively, the “Company”),
I am pleased to confirm our offer to you of a position on the Orbitz Worldwide Senior Leadership
Team as Senior Vice President, Chief Financial Officer, leading the finance organization and
reporting to Barney Harford, President and Chief Executive Officer. January 1, 2011 will be your
start date, and your base salary will be $425,000 annually with a bi-weekly pay rate of $16,346.16.




Cash Sign-on Bonus



You will receive a cash sign-on bonus of up to $531,000, less applicable taxes, payable within
thirty (30) days of your start date; provided, however, if you voluntarily resign from your
position or your employment is terminated by the Company for “Cause” (as defined in this letter),
you will be responsible for repaying the gross amount of the sign-on bonus back to the Company on
or prior to your last day of employment with the Company in accordance with the following schedule:




	 	 	 	 	 
	Number of Years from Start Date you	 	 
	Voluntarily Resign or are terminated for Cause:	 	Sign-on Bonus Repayment Obligation:
	1 year or less
	 	 	100	%
	More than 1 year but less than 2 years
	 	 	50	%
	2 years or more
	 	 	0	%





Notwithstanding the foregoing, upon a “Change in Control” (as defined in the 2007 Equity and
Incentive Plan), the repayment obligation under this agreement shall be null and void.



You are receiving this cash sign-on bonus in light of the possibility you may be foregoing all or
part of your 2010 Bonus from Crocs Incorporated (“Crocs”), which you have informed us will be
$531,000. Any 2010 Bonus amounts paid to you by Crocs will be deducted from the cash sign-on bonus
amount that the Company pays you.




Equity Awards



In addition, effective on your first day of employment, you will receive a sign-on equity award
consisting of 200,000 restricted stock units and 200,000 stock options granted under the Orbitz
Worldwide, Inc. 2007 Equity and Incentive Plan, subject, in each case, to approval of the
Compensation Committee of the Orbitz Worldwide, Inc. Board of Directors (the “Committee”) and the
terms and/or conditions of the grant established by the Compensation Committee. Each restricted
stock unit represents the right to receive one share of our common stock (or cash equal to the fair
market value of one share of our common stock) on the applicable vesting date. Each stock option
represents the right to purchase one share of our common stock at the specified exercise price,
which is the fair market value (as defined in the plan) of




 









 








Russell Hammer

December 27, 2010

Page 2



our common stock on the date the stock
option is granted. The restricted stock units will vest monthly
over a four year period and stock options will vest annually over a four year period and will be
subject to such other terms and conditions as are contained in the respective agreements evidencing
the awards.




Perquisites



While you are employed by the Company, you will be entitled to Company-paid perquisites such as
financial planning assistance, and a parking space in or near our offices located at 500 W. Madison
Street, Chicago, IL, 60661. Additionally, the Company will reimburse you for reasonable legal
expenses not exceeding $10,000, in connection with the negotiation of this agreement. All
perquisites will be paid on your behalf by the Company and will be included in your W-2 taxable
income on an annual basis subject to applicable withholdings, which shall be your sole
responsibility.




Bonus Plan



Beginning January 1, 2011, you will be eligible to participate in the Company’s incentive bonus
plan (currently, the Orbitz Worldwide, Inc. Performance-Based Annual Incentive Plan, as amended
from time to time) (the “Bonus Plan”), provided that you are actively employed by and in good
standing with the Company on the payment date (except as otherwise provided under “Severance”
below) and subject to the other terms, conditions and eligibility requirements of the Bonus Plan.
Notwithstanding the foregoing, your target bonus for purposes of the Bonus Plan will be no less
than 75% of your eligible base salary for 2011 and 2012. Payments under the Bonus Plan are
determined based on your target bonus percentage and eligible earnings at the beginning of the
relevant plan period, as well as the achievement of Company financial and strategic objectives,
individual performance and the discretion of the Committee, and are made subject to such other
terms, conditions and criteria as the Committee may determine in its sole discretion.




Severance



Should your employment be involuntarily terminated by the Company other than for “Cause” (as
defined below) within two (2) years of the date of this letter, you will be eligible to receive the
following severance benefits:




     Termination without Cause:




	 	•	 	Lump sum cash payment equal to your annual base salary in effect on the date of
termination; and
	 
	 	•	 	Lump sum cash payment equal to the product of: (i) your annual target bonus (in
effect on the date of termination) and (ii) the actual funding percentage, based on the
achievement of Company financial and strategic factors, used in calculating awards for
executive officers under the Bonus Plan for the year of termination, prorated based on
the date of termination, payable no later than when annual bonuses, if any, are paid to
executive officers of the Company; and
	 
	 	•	 	COBRA subsidy for the first twelve (12) months following the month of termination;
provided that such benefits shall be taxable to you to the extent advisable under
Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”).






Termination without Cause or resignation due to a “Constructive Termination” (as defined
below), within one (1) year following a Change in Control:




	 	•	 	Lump sum cash payment equal to your annual base salary in effect on the date of
termination; and




 









 











Russell Hammer

December 27, 2010

Page 3





	 	•	 	Lump sum cash payment equal to your annual target bonus in effect on the date of
termination; and
	 
	 	•	 	Lump sum cash payment equal to your annual target bonus in effect on the date of
termination, prorated based on the date of termination; and
	 
	 	•	 	COBRA subsidy for the first twelve (12) months following the month of your
termination; provided that such benefits shall be taxable to you to the extent
advisable under Section 105(h) of the Code.




To be entitled to the benefits under this agreement, you must agree to be bound by the terms and
conditions outlined herein, including all restrictions applicable to you which includes the
execution of a general release waiving all claims against the Company, which release will be
provided to you in sufficient time to allow you to review and execute the release, and for any
revocation period to expire, so that such benefits (other than the COBRA subsidy) can be paid to
you by the short-term deferral deadline referred to in the following paragraph. Following the
completion of your second year of employment, you will be subject to the terms and conditions of
any executive Company severance policy in place for its most senior officers (other than the CEO)
at that time and not by the above provisions of this letter pertaining to severance; except that
for purposes of any such severance policy the terms “Cause” and “Constructive Termination” shall
continue to have the meanings contained in this letter.



Notwithstanding anything to the contrary set forth herein, all payments and benefits described in
this agreement that are not otherwise exempt from Section 409A of the Code (“Section 409A”) shall
be fully paid no later than the short-term deferral deadline set forth in Treasury Regulation
Section 1.409A-1(b)(4). Notwithstanding anything to the contrary set forth herein, in the event
that any change to this agreement or any additional terms are required to comply with Section 409A
(or an exemption therefrom), you hereby agree that the Company may make such change or incorporate
such terms (by reference or otherwise) without your consent; provided that you are promptly
notified of the adoption of any such change or additional terms, and, if you object in writing to
the adoption of any such change or additional terms, such change or additional terms will not
apply. To the extent (i) any payments to which you become entitled under this agreement, or any
agreement or plan referenced herein, in connection with your termination of employment with the
Company constitute deferred compensation subject to Section 409A and (ii) you are deemed at the
time of such termination of employment to be a “specified” employee under Section 409A, then such
payment or payments shall not be made or commence until the earlier of: (i) the expiration of the
six (6)-month period measured from the date of your “separation from service” (as such term is at
the time defined in Treasury Regulations under Section 409A) with the Company and (ii) the date of
your death following such separation from service; provided, however, that such deferral shall only
be effected to the extent required to avoid adverse tax treatment to you, including (without
limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under
Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the
applicable deferral period, any payments which would have otherwise been made during that period
(whether in a single sum or in installments) in the absence of this paragraph shall be paid to you
or your beneficiary, as applicable, in one lump sum. For purposes of this agreement, no payment
that is subject to (and not exempt from Section 409A) will be made to you upon termination of your
employment unless such termination constitutes a “separation from service” within the meaning of
Section 409A and Section 1.409A-1(h) of the Treasury Regulations thereunder. The payments under
this letter are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations under Section 409A.




Cause



For purposes of this agreement, “Cause” shall mean: (A) your failure to substantially perform your
duties to the Company as determined by the Board of Directors (other than as a result of total or
partial incapacity due to disability) for a period of ten (10) days following receipt of written
notice from the Company by you of such failure, provided that it is understood that this clause (A)
shall not apply if the




 









 








Russell Hammer

December 27, 2010

Page 4



Company terminates your employment because of dissatisfaction with actions
taken by you in the good faith performance of your duties to the Company; (B) theft or embezzlement
of property of the Company
or dishonesty in the performance of your duties to the Company; (C) an act or acts on your part
constituting (i) a felony under the laws of the United States or any state thereof or (ii) a crime
involving moral turpitude; (D) your willful malfeasance or willful misconduct in connection with
your duties or any act or omission that is materially injurious to the financial condition or
business reputation of the Company; or (E) your breach of the provisions of any non-compete,
non-solicitation or confidentiality agreements agreed to with the Company.




Constructive Termination



For purposes of this agreement, “Constructive Termination” shall be deemed to have occurred upon
(A) any material reduction in your base salary or target bonus (excluding any change in value of
equity incentives resulting solely from a change in the value of the Company’s equity or a
reduction affecting all similarly situated executives) to the same extent; (B) the failure of the
Company to pay compensation or benefits when due; (C) the primary business office for you being
relocated by more than 50 miles; or (D) a material and sustained diminution to your duties and
responsibilities (as defined below); provided that any of the events described in clauses (A)-(D)
of this definition shall constitute a Constructive Termination only if the Company fails to cure
such event within 30 days after receipt by the Company’s Board of Directors from you of written
notice of the event which constitutes a Constructive Termination; provided, further, that a
“Constructive Termination” shall cease to exist for an event on the 60th day following the later of
its occurrence or your knowledge of such occurrence, unless you have given the Company written
notice of such occurrence prior to the 60th day.




Diminution of Duties and Responsibilities



For purposes of this agreement, a “Diminution of Duties and Responsibilities” shall be deemed to
have occurred upon (A) a significant diminution in the nature or scope of your authority, title,
function or duties and responsibilities from your authority, title, function or duties and
responsibilities in effect immediately preceding any Change in Control; (B) any material breach of
the terms of this agreement by the Company; or (C) failure of any successor or assignee to the
Company to assume this agreement.



The Company expects that you will hold and maintain in strictest confidence the terms and
conditions of this agreement, and that you will not disclose the terms and conditions contained
herein to any person, group, media or other entity (other than appropriate advisors, including
legal and tax advisors), unless legally compelled to do so. In addition, by signing this
agreement, you hereby acknowledge that this agreement sets forth the entire agreement between you
and the Company concerning the subject matter contained herein and supersedes any and all prior
agreements or understandings, whether written or oral. You also represent and affirm that you do
not have any non-competition, non-solicitation, restrictive covenant or other similar agreement or
contract (other than the disclosed non-compete with Crocs) that will or may restrict or limit in
any way your ability to perform the duties of the position you have been offered with the Company,
and that the Company’s offer of employment is contingent upon this representation by you. In
addition, the Company requires that you comply with any confidentiality obligations you have to
your current and any former employers.



Additionally, due to the nature of your position, you will have access to certain proprietary
and/or confidential information related to the affairs, business, results of operations, accounting
methods, practices and procedures, potential acquisitions, financial condition, clients, customers
and other relationships of the Company. By signing below, you agree to comply with the covenants
contained in the 2007 Equity and Incentive Plan (attached) concerning non-competition,
non-solicitation, confidentiality and other matters, including following the termination of your
employment with the Company.






 









 








Russell Hammer

December 27, 2010

Page 5



Per the Company’s standard policy, this agreement is not intended as, nor should it be considered,
an employment contract for a definite or indefinite period of time. Employment with the Company is
at will, and either you or the Company may terminate your employment at any time, with or without
cause.



Prior to beginning employment with Orbitz Worldwide, you will need to establish your U.S.
employment eligibility as well as your identity. Examples of proper identification include a
passport, or a valid driver’s license and social security card; alternate acceptable documents are
stated on the enclosed list. You will need to bring this identification with you on your first day
of employment.



This agreement shall be governed by and construed in accordance with the laws of the State of
Illinois, without regard to conflicts of laws principles thereof.



Health and welfare benefits will begin on the first of the month following your date of hire. You
will also receive a brief tour of the facilities, and we will obtain your signature indicating your
agreement to comply with Orbitz Worldwide’s core policies.



If these terms are acceptable to you, please sign this letter in the space provided below and
return a signed copy of it to me. Your signature below will indicate your understanding and
acceptance of the foregoing terms and your obligations contained in the attached Addendum.



We are excited that you are joining our organization and look forward to having you as part of the
Orbitz Worldwide team. If there is anything further I can do to assist you, please do not hesitate
to contact me at 312-894-4850.



Regards,






Paul E. Wolfe

Group Vice President, Global Human Resources

Orbitz Worldwide



Accepted and agreed this 30th day of December, 2010:




	 	 	 	 	 
	 	 	 
	/s/ Russell Hammer
 	 	 
	Russell Hammer 	 	 
	 	 	 



 









 






	 	 	 	 	 



Addendum to Letter Agreement

Page | 6




1. Restrictive Covenants





     (a) Non-Competition



          (i) From the date hereof while employed by the Company and for a two (2) year period
following the date you cease to be employed by the Company (the “Restricted Period”),
irrespective of the cause, manner or time of any termination, you shall not use your status with
any Company to obtain loans, goods or services from another organization on terms that would not be
available to you in the absence of your relationship to the Company .




          (ii) During the Restricted Period, you shall not make any statements or perform any acts
intended to advance the interests of any Competitors of the Company or in any way injuring the
interests of the Company and the Company shall not make or authorize any person to make any
statement that would in any way injure the personal or business reputation or interests of you;
provided however, that, nothing herein shall preclude the Company or you from giving truthful
testimony under oath in response to a subpoena or other lawful process or truthful answers in
response to questions from a government investigation; provided, further, however, that nothing
herein shall prohibit the Company from disclosing the fact of any termination of your employment or
the circumstances for such a termination. For purposes of this agreement, the term
“Competitor” means any enterprise or business that you have knowledge is engaged in, or has
plans to engage in, at any time during the Restricted Period, any activity that competes with the
businesses conducted during or at the termination of your employment, or then proposed to be
conducted, by the Company in a manner that is or would be material in relation to the businesses of
the Company or the prospects for the businesses of the Company (in each case, within 100 miles of
the Company’s United States, European or Asian headquarters). During the Restricted Period, you,
without prior express written approval by the Company’s Board of Directors, shall not (A) engage
in, or directly or indirectly (whether for compensation or otherwise) manage, operate, or control,
or join or participate in the management, operation or control of a Competitor, in any capacity
(whether as an employee, officer, director, partner, consultant, agent, advisor, or otherwise) or
(B) develop, expand or promote, or assist in the development, expansion or promotion of, any
division of an enterprise or the business intended to become a Competitor at any time after the end
of the Restricted Period or (C) own or hold a Proprietary Interest in, or directly furnish any
capital to, any Competitor of the Company. You acknowledge that the Company’s businesses are
conducted nationally and internationally and agree that the provisions in the foregoing sentence
shall operate throughout the United States and the world (subject to the definition of
“Competitor”).




          (iii) During the Restricted Period, you, without express prior written approval from the
Company’s Board of Directors, shall not solicit any members or the then current Clients of the
Company or any potential Clients of the Company with who you have had dealings or learned
confidential information within the six (6) months prior to the date you cease to be employed by
the Company for any existing business of the Company or discuss with any employee of the Company
information or operations of any business intended to compete with the Company. For purposes of
this Section, the term “Clients” means suppliers and corporate clients including but not
limited to airlines, hotels and companies with corporate accounts with the Company, but shall not
include individual “end-users” or ultimate individual consumers of the Company’s services.




          (iv) During the Restricted Period, you shall not interfere with the employees or affairs of
the Company or solicit or induce any person who is an employee of the Company to terminate any
relationship such person may have with the Company, nor shall you during such period directly or
indirectly engage, employ or compensate, or cause or permit any Person with which you may be
affiliated, to engage, employ or compensate, any employee of the Company.




          (v) For the purposes of this agreement, “Proprietary Interest” means any legal,
equitable or other ownership, whether through stock holding or otherwise, of an interest in a
business, firm or entity;



 









 







Addendum to Letter Agreement

Page | 7



provided that ownership of less than 5% of any class of equity interest
in a publicly held company shall not be deemed a Proprietary Interest.




          (vi) From the date hereof while employed by the Company and thereafter, you shall not make
any disparaging or defamatory comments regarding the Company or, after termination of the
employment relationship with the Company, make any comments concerning any aspect of the
termination of the
relationship. Your obligations under this paragraph shall not apply to disclosures required
by applicable law, regulation or order of any court or governmental agency.




          (vii) The period of time during which the provisions of this Section shall be in effect shall
be extended by the length of time during which you are in breach of the terms hereof as determined
by any court of competent jurisdiction on the Company’s application for injunctive relief.




          (viii) You agree that the restrictions contained in this Section are an essential element of
the compensation you are granted hereunder and but for your agreement to comply with such
restrictions, the Company would not have entered into this agreement.




          (ix) It is expressly understood and agreed that although you and the Company consider the
restrictions contained in this Section to be reasonable, if a final judicial determination is made
by a court of competent jurisdiction that the time or territory or any other restriction contained
in this agreement is an unenforceable restriction against you, the provisions of this agreement
shall not be rendered void but shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the other restrictions
contained herein.




     (b) Confidentiality



          (i) You will not at any time (whether during or after your employment with the Company) (x)
retain or use for the benefit, purposes or account of you or any other Person; or (y) disclose,
divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company
(other than its professional advisers who are bound by confidentiality obligations), any
non-public, proprietary or confidential information (including without limitation trade secrets,
know-how, research and development, software, databases, inventions, processes, formulae,
technology, designs and other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing, promotions,
government and regulatory activities and approvals) concerning the past, current or future
business, activities and operations of the Company and/or any third party that has disclosed or
provided any of same to the Company on a confidential basis (“Confidential Information”)
without the prior written authorization of the Company’s Board of Directors.




          (ii) “Confidential Information” shall not include any information that is (i)
generally known to the industry or the public other than as a result of your breach of this
covenant or any breach of other confidentiality obligations by third parties; (ii) made
legitimately available to you by a third party without breach of any confidentiality obligation; or
(iii) required by law to be disclosed; provided that you shall give prompt written notice to the
Company of such requirement, disclose no more information than is so required, and cooperate, at
the Company’s cost, with any attempts by the Company to obtain a protective order or similar
treatment.




          (iii) Except as required by law, you will not disclose to anyone, other than your immediate
family and legal or financial advisors, the existence or contents of this agreement (unless this
agreement shall be publicly available as a result of a regulatory filing made by the Company);
provided that you may disclose to any prospective future employer the provisions of this Section
provided they agree to maintain the confidentiality of such terms.






 









 








Addendum to Letter Agreement

Page | 8




          (iv) Upon termination of your employment with the Company for any reason, you shall (x) cease
and not thereafter commence use of any Confidential Information or intellectual property (including
without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the Company; (y) immediately destroy,
delete, or return to the Company, at the Company’s option, all originals and copies in any form or
medium (including memoranda, books, papers, plans, computer files, letters and other data) in your
possession or control (including any of the foregoing stored or located in your office, home,
laptop or other computer, whether or not Company property) that contain Confidential Information or
otherwise relate to the business of the Company, except that you may retain only those portions of
any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z)
notify and fully cooperate with the Company regarding the delivery or destruction of any other
Confidential Information of which you are or becomes aware.




     (c) Intellectual Property 



          (i) If you have created, invented, designed, developed, contributed to or improved any works
of authorship, inventions, intellectual property, materials, documents or other work product
(including without limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) (“Works”), either alone or
with third parties, prior to your employment by the Company, that are relevant to or implicated by
such employment (“Prior Works”), you hereby grant the Company a perpetual, non-exclusive,
royalty-free, worldwide, assignable, sublicensable license under all rights and intellectual
property rights (including rights under patent, industrial property, copyright, trademark, trade
secret, unfair competition and related laws) therein for all purposes in connection with the
Company’s current and future business.




          (ii) If you create, invent, design, develop, contribute to or improve any Works, either alone
or with third parties, at any time during your employment by the Company and within the scope of
such employment and/or with the use of any the Company resources (“Company Works”), you
shall promptly and fully disclose same to the Company and hereby irrevocably assign, transfer and
convey, to the maximum extent permitted by applicable law, all rights and intellectual property
rights therein (including rights under patent, industrial property, copyright, trademark, trade
secret, unfair competition and related laws) to the Company to the extent ownership of any such
rights does not vest originally in the Company.




          (iii) You agree to keep and maintain adequate and current written records (in the form of
notes, sketches, drawings, and any other form or media requested by the Company) of all Company
Works. The records will be available to and remain the sole property and intellectual property of
the Company at all times.




          (iv) You shall take all requested actions and execute all requested documents (including any
licenses or assignments required by a government contract) at the Company’s expense (but without
further remuneration) to assist the Company in validating, maintaining, protecting, enforcing,
perfecting, recording, patenting or registering any of the Company’s rights in the Prior Works and
Company Works. If the Company is unable for any other reason to secure your signature on any
document for this purpose, then you hereby irrevocably designate and appoint the Company and its
duly authorized officers and agents as your agent and attorney in fact, to act for and in your
behalf and stead to execute any documents and to do all other lawfully permitted acts in connection
with the foregoing.




          (v) You shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with the Company any
confidential, proprietary or non-public information or intellectual property relating to a former
employer or other third party without the prior written permission of such third party. You shall
comply with all relevant policies and guidelines of the Company, including regarding the protection
of confidential information and intellectual property and potential conflicts of interest. You
acknowledge that the Company may amend any



 









 







Addendum to Letter Agreement

Page | 9



such policies and guidelines from time to time, and that
you remain at all times bound by their most current version.




     (d) Specific Performance



     You acknowledge and agree that the Company’s remedies at law for a breach or threatened breach
of any of the provisions of this Section would be inadequate and the Company would suffer
irreparable damages as a result of such breach or threatened breach. In recognition of this fact,
you agree that, in the event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to cease making any payments or
providing any benefit otherwise required by this agreement and obtain equitable relief in the form
of specific performance, temporary restraining order, temporary or permanent injunction or any
other equitable remedy which may then be available. Without limiting the generality of the
foregoing, neither party shall oppose any motion the other party may make for any expedited
discovery or hearing in connection with any alleged breach of this Section 1.



     (e) Cooperation with Litigation



     You agree to cooperate with and make yourself readily available to the Company and its General
Counsel, as the Company may reasonably request, to assist it in any matter regarding the Company
and/or its affiliates, subsidiaries, and their predecessors, including giving truthful testimony in
any litigation or potential
litigation involving the Company and/or its affiliates, subsidiaries, and their predecessors,
over which you have knowledge or information. The Company will reimburse you for any and all
reasonable expenses reasonably incurred in connection with such cooperation by you.



     (f) Survival



     The provisions of this Section 1 shall survive the termination of your employment for any
reason.



2. Miscellaneous




     (a) Governing Law This agreement shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to conflicts of laws principles thereof.



     (b) Amendments This agreement may not be altered, modified, or amended except by
written instrument signed by the parties hereto.



     (c) No Waiver The failure of a party to insist upon strict adherence to any term of
this agreement on any occasion shall not be considered a waiver of such party’s rights or deprive
such party of the right thereafter to insist upon strict adherence to that term or any other term
of this agreement.



     (d) Severability In the event that any one or more of the provisions of this
agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this agreement shall not be affected
thereby.



     (e) Assignment This agreement, and all of your rights and duties hereunder, shall
not be assignable or delegable by you. Any purported assignment or delegation by you in violation
of the foregoing shall be null and void ab initio and of no force and effect. This
agreement may be assigned by the Company to a person or entity which is an affiliate or a successor
in interest to substantially all of the business operations of the Company. Upon such assignment,
the rights and obligations of the Company hereunder shall become the rights and obligations of such
affiliate or successor person or entity.



     (f) Set Off; No Mitigation The Company’s obligation to pay you the amounts provided
and to make the arrangements provided hereunder shall be subject to set-off, counterclaim or
recoupment of amounts owed by you to the Company. You shall not be required to mitigate the amount
of any payment provided for pursuant to this agreement by seeking other employment, taking into
account the post-employment restrictive covenants set forth above.