RESTATES. THIS AGREEMENT MAY BE MODIFIED
ONLY BY A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF
THE PARTIES HERETO. NO WAIVER OF THIS AGREEMENT OR ANY PROVISION HEREOF SHALL BE
BINDING UPON THE PARTY AGAINST WHOM ENFORCEMENT OF SUCH WAIVER IS SOUGHT UNLESS
IT IS MADE IN WRITING AND SIGNED BY OR ON BEHALF OF SUCH PARTY.
10.
SECTION 409A.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN
THIS AGREEMENT, TO THE EXTENT THAT ANY OF THE PAYMENTS THAT MAY BE MADE
HEREUNDER CONSTITUTE "NONQUALIFIED DEFERRED COMPENSATION", WITHIN THE MEANING OF
SECTION 409A AND YOU ARE A "SPECIFIED EMPLOYEE" UPON YOUR SEPARATION (AS DEFINED
UNDER SECTION 409A), THE TIMING OF ANY SUCH PAYMENT FOLLOWING THE SEPARATION
DATE SHALL BE MODIFIED IF, ABSENT SUCH MODIFICATION, SUCH PAYMENT WOULD
OTHERWISE BE SUBJECT TO PENALTY UNDER SECTION 409A. IN ANY EVENT, THE COMPANY
MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO LIABILITY TO YOU OR TO ANY
OTHER PERSON IF ANY PROVISIONS OF THIS AGREEMENT ARE DETERMINED TO CONSTITUTE
"NONQUALIFIED DEFERRED COMPENSATION" SUBJECT TO SECTION 409A BUT DO NOT SATISFY
THE REQUIREMENTS OF THAT SECTION.
11.
FURTHER ASSURANCES. THE PARTIES AGREE TO EXECUTE, ACKNOWLEDGE (IF
REASONABLY REQUESTED), AND DELIVER SUCH DOCUMENTS, CERTIFICATES OR OTHER
INSTRUMENTS AND TAKE SUCH OTHER ACTIONS AS MAY BE REASONABLY REQUIRED FROM TIME
TO TIME TO CARRY OUT THE INTENTS AND PURPOSES OF
3
THIS AGREEMENT, PROVIDED THEY DO NOT IMPOSE ANY MATERIAL ADDITIONAL OBLIGATIONS
UPON EITHER PARTY.
12.
ACKNOWLEDGMENTS AND OTHER TERMS. O'SHEA AGREES THAT HE HAS
CAREFULLY READ AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT, THAT HE
HAS BEEN ADVISED TO CONSULT WITH AND HAS CONSULTED WITH AN ATTORNEY, AND THAT HE
IS VOLUNTARILY ENTERING THIS AGREEMENT. O'SHEA FURTHER REPRESENTS AND
ACKNOWLEDGES THAT IN EXECUTING THIS AGREEMENT, HE IS NOT RELYING AND HAS NOT
RELIED UPON ANY REPRESENTATION OR STATEMENT MADE BY THE COMPANY WITH REGARD TO
THE SUBJECT MATTER, BASIS OR EFFECT OF THIS AGREEMENT.
13.
INTERPRETATION. THE LANGUAGE OF ALL PARTS OF THIS AGREEMENT SHALL
IN ALL CASES BE CONSTRUED AS A WHOLE, ACCORDING TO ITS FAIR MEANING, AND NOT
STRICTLY FOR OR AGAINST ANY OF THE PARTIES. THIS AGREEMENT SHALL BE INTERPRETED
IN SUCH A MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION HEREOF SHALL BE PROHIBITED OR INVALID UNDER ANY SUCH LAW, SUCH
PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY
WITHOUT INVALIDATING OR NULLIFYING THE REMAINDER OF SUCH PROVISION OR ANY OTHER
PROVISIONS OF THIS AGREEMENT. THE CAPTIONS OF THE SECTIONS OF THIS AGREEMENT ARE
FOR CONVENIENCE OF REFERENCE ONLY, AND IN NO WAY DEFINE, LIMIT OR AFFECT THE
SCOPE OR SUBSTANCE OF ANY SECTION OF THIS AGREEMENT.
14.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND MAY BE DELIVERED BY FACSIMILE, EACH OF WHICH SHALL BE DEEMED TO
BE AN ORIGINAL BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
15.
GOVERNING LAW; PREVAILING PARTY. THIS AGREEMENT SHALL