5
BENEFITS OTHERWISE PAYABLE HEREUNDER AS A RESULT OF SUCH TERMINATION OF
EMPLOYMENT IS NECESSARY IN ORDER TO PREVENT ANY ACCELERATED OR ADDITIONAL TAX
UNDER SECTION 409A OF THE CODE, THEN THE EMPLOYER WILL DEFER THE COMMENCEMENT OF
THE PAYMENT OF ANY SUCH PAYMENTS OR BENEFITS HEREUNDER (WITHOUT ANY REDUCTION IN
SUCH PAYMENTS OR BENEFITS ULTIMATELY PAID OR PROVIDED TO EXECUTIVE) UNTIL THE
DATE THAT IS SIX MONTHS FOLLOWING EXECUTIVE'S TERMINATION OF EMPLOYMENT WITH THE
EMPLOYER OR ANY OF ITS AFFILIATES (OR THE EARLIEST DATE AS IS PERMITTED UNDER
SECTION 409A OF THE CODE).
7.
MISCELLANEOUS.
A.
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK FOR AGREEMENTS
FULLY PERFORMED WITHIN THE STATE.
B.
ENTIRE AGREEMENT/AMENDMENTS.
THIS
AGREEMENT CONTAINS THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER CONTAINED HEREIN, AND DURING THE TERM SUPERSEDES ALL PRIOR
AGREEMENTS, PROMISES, WARRANTIES, COVENANTS OR UNDERTAKINGS BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREIN.
THIS AGREEMENT MAY NOT BE ALTERED,
MODIFIED, OR AMENDED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE PARTIES HERETO.
C.
NO WAIVER; SEVERABILITY.
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.
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 AND SHALL
REMAIN IN FULL FORCE AND EFFECT.
D.
SUCCESSOR; BINDING AGREEMENT.
THIS
AGREEMENT SHALL INURE TO AND BE BINDING UPON ANY SUCCESSOR OR ASSIGN OF THE
COMPANY OR THE EMPLOYER (AND SUCH SUCCESSOR OR ASSIGN SHALL HEREAFTER BE DEEMED
THE "COMPANY" OR "EMPLOYER" AS THE CASE MAY BE).
THE COMPANY AND THE EMPLOYER
SHALL ASSIGN THIS AGREEMENT AND ITS RESPECTIVE OBLIGATIONS HEREUNDER TO ANY
SUCCESSOR OR ASSIGN THEREOF, WHETHER BY MERGER, CONSOLIDATION, SALE OF
SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS OR CAPITAL STOCK OR OTHERWISE, AND THE
COMPANY AND THE EMPLOYER SHALL REQUIRE ANY SUCCESSOR OR ASSIGN TO EXPRESSLY
ASSUME AND AGREE TO PERFORM THE RESPECTIVE OBLIGATIONS OF THE COMPANY AND THE
EMPLOYER HEREUNDER IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY
AND THE EMPLOYER WOULD BE REQUIRED TO PERFORM IT IF NO SUCH TRANSFER OR
ASSIGNMENT HAD TAKEN PLACE.
ANY ASSIGNMENT OR TRANSFER OF THIS AGREEMENT NOT IN
COMPLIANCE WITH THE FOREGOING SHALL BE VOID AND OF NO FORCE AND EFFECT. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EXECUTIVE AND
EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS,
SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES.
IF EXECUTIVE SHOULD DIE
WHILE ANY AMOUNT WOULD STILL BE PAYABLE TO EXECUTIVE HEREUNDER HAD EXECUTIVE
CONTINUED TO LIVE, ALL SUCH AMOUNTS, UNLESS OTHERWISE