THE EXECUTIVE, THE COMPANY WILL BEAR SOLE RESPONSIBILITY FOR THE FEES OR
(II) IF THE EXECUTIVE SUBMITS A DISPUTE TO THE ARBITRATOR AND (A) THE ARBITRATOR
FINDS IN FAVOR OF THE EXECUTIVE, THE COMPANY WILL BEAR SOLE RESPONSIBILITY FOR
THE FEES, (B) THE ARBITRATOR FINDS IN FAVOR OF THE COMPANY, THE EXECUTIVE WILL
BEAR SOLE RESPONSIBILITY FOR THE FEES.
12.
SEVERABILITY:
IF A COURT OF COMPETENT
JURISDICTION DETERMINES THAT ANY PROVISION OF THIS AGREEMENT IS INVALID OR
UNENFORCEABLE, THEN THE INVALIDITY OR UNENFORCEABILITY OF ANY OTHER PROVISION OF
THIS AGREEMENT, AND ALL OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
13.
WITHHOLDING OF TAXES:
THE COMPANY MAY
WITHHOLD FROM ANY BENEFITS PAYABLE UNDER THIS AGREEMENT ALL FEDERAL, STATE, CITY
OR OTHER TAXES AS MAY BE REQUIRED PURSUANT TO ANY LAW OR GOVERNMENTAL REGULATION
OR RULING.
14.
NO ASSIGNMENT; SUCCESSORS:
EXECUTIVE'S
RIGHT TO RECEIVE PAYMENTS OR BENEFITS HEREUNDER SHALL NOT BE ASSIGNABLE OR
TRANSFERABLE, WHETHER BY PLEDGE, CREATION, OR A SECURITY INTEREST OR OTHERWISE,
WHETHER VOLUNTARY, INVOLUNTARY, BY OPERATION OF LAW OR OTHERWISE, OTHER THAN A
TRANSFER BY SHALL OR BY THE LAWS OF DESCENT OR DISTRIBUTION, AND IN THE EVENT OF
ANY ATTEMPTED ASSIGNMENT OR TRANSFER CONTRARY TO THIS SECTION 14, THE COMPANY
SHALL HAVE NO LIABILITY TO PAY ANY AMOUNT SO ATTEMPTED TO BE ASSIGNED OR
TRANSFERRED.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY
EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS,
SUCCESSORS, HEIRS, DISTRIBUTES, DEVISES AND LEGATEES.
The Company may assign its rights and obligations under this Agreement to any
Affiliate.
This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns (including, without limitation, any company
into or with which the Company may merge or consolidate).
15.
EFFECT OF PRIOR AGREEMENTS: THIS AGREEMENT
CONTAINS THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES HERETO AND SUPERSEDES ANY
PRIOR EMPLOYMENT AGREEMENT, SEVERANCE, EQUITY OR SIMILAR BENEFIT AGREEMENT
BETWEEN THE COMPANY OR ANY PREDECESSOR OF THE COMPANY AND EXECUTIVE.
16.
RELEASE OF CLAIMS:
IN CONSIDERATION FOR THE
COMPENSATION AND OTHER BENEFITS PROVIDED PURSUANT TO THIS AGREEMENT, EXECUTIVE
AGREES TO EXECUTE A "WAIVER AND RELEASE," A FORM OF WHICH IS ATTACHED HERETO AS
EXHIBIT A.
EXECUTIVE ACKNOWLEDGES THAT HE WAS GIVEN COPIES OF THIS AGREEMENT
AND THE WAIVER AND RELEASE ON OCTOBER 22, 2008, AND WAS GIVEN AT LEAST 21 DAYS
TO CONSIDER WHETHER TO SIGN THIS AGREEMENT AND THE WAIVER
8
and Release.
The Company's obligations under this Agreement are expressly
conditioned on the execution of the Waiver and Release contemporaneously with
the execution of this Agreement, and Executive's failure to execute and deliver
such Waiver and Release, or Executive's revocation of the Waiver and Release
within the seven day period provided in the Release, shall void the Company's
obligations hereunder.
17.
SECTION 409A.
ALL REIMBURSEMENTS AND IN
KIND BENEFITS PROVIDED UNDER THIS AGREEMENT SHALL BE MADE OR PROVIDED IN
ACCORDANCE WITH SECTION 409A, INCLUDING, WHERE APPLICABLE, THE REQUIREMENT THAT
THE AMOUNT OF EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN