COVENANTS OR UNDERTAKINGS BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREIN OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
THIS
AGREEMENT MAY NOT BE ALTERED, MODIFIED, OR AMENDED EXCEPT BY WRITTEN INSTRUMENT
SIGNED BY THE PARTIES HERETO.
D.
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.
E.
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.
F.
ASSIGNMENT.
THIS AGREEMENT, AND ALL
OF EXECUTIVE'S RIGHTS AND DUTIES HEREUNDER, SHALL NOT BE ASSIGNABLE OR DELEGABLE
BY EXECUTIVE; PROVIDED, HOWEVER, THAT IF EXECUTIVE SHALL DIE, ALL AMOUNTS THEN
PAYABLE TO EXECUTIVE HEREUNDER SHALL BE PAID IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT TO EXECUTIVE' S DEVISEE, LEGATEE OR OTHER DESIGNEE OR, IF THERE
BE NO SUCH DEVISEE, LEGATEE OR DESIGNEE, TO EXECUTIVE'S ESTATE.
ANY PURPORTED
ASSIGNMENT OR DELEGATION BY EXECUTIVE 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 EMPLOYER TO A PERSON OR ENTITY WHICH IS AN AFFILIATE, AND SHALL
BE ASSIGNED TO ANY SUCCESSOR IN INTEREST TO SUBSTANTIALLY ALL OF THE BUSINESS
OPERATIONS OF THE EMPLOYER.
UPON SUCH ASSIGNMENT, THE RIGHTS AND OBLIGATIONS OF
THE EMPLOYER HEREUNDER SHALL BECOME THE RIGHTS AND OBLIGATIONS OF SUCH AFFILIATE
OR SUCCESSOR PERSON OR ENTITY.
G.
SET OFF; MITIGATION.
THE EMPLOYER'S
OBLIGATION TO PAY EXECUTIVE THE AMOUNTS PROVIDED AND TO MAKE THE ARRANGEMENTS
PROVIDED HEREUNDER SHALL NOT BE SUBJECT TO SET-OFF, COUNTERCLAIM OR RECOUPMENT,
OTHER THAN AMOUNTS LOANED OR ADVANCED TO EXECUTIVE BY THE COMPANY OR ITS
AFFILIATES.
EXECUTIVE SHALL NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY
PAYMENT PROVIDED FOR PURSUANT TO THIS AGREEMENT BY SEEKING OTHER EMPLOYMENT OR
OTHERWISE AND THE AMOUNT OF ANY PAYMENT PROVIDED FOR PURSUANT TO THIS AGREEMENT
SHALL NOT BE REDUCED BY ANY COMPENSATION EARNED AS A RESULT OF EXECUTIVE'S OTHER
EMPLOYMENT OR OTHERWISE.
H.
SUCCESSORS; BINDING AGREEMENT.
THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE COMPANY, ITS
SUBSIDIARIES, SUBSIDIARIES, AND THE EXECUTIVE AND ANY PERSONAL OR LEGAL
REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS, ASSIGNS, HEIRS,
10
DISTRIBUTEES, DEVISEES AND LEGATEES.
FURTHER, THE COMPANY WILL REQUIRE ANY
SUCCESSOR (WHETHER, DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION, OR
OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME
MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT
IF NO SUCH SUCCESSION HAD TAKEN PLACE.
AS USED IN THIS AGREEMENT, "COMPANY"
SHALL MEAN THE COMPANY