MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND
DEFAMATION.
(II)
ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL
STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF
1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT,
THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, ET
SEQ;
(III)
ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING
TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
12.
MISCELLANEOUS PROVISIONS.
(A)
NO DUTY TO MITIGATE. THE EMPLOYEE SHALL NOT BE REQUIRED TO MITIGATE THE
AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS AGREEMENT, NOR SHALL ANY SUCH PAYMENT
BE REDUCED BY ANY EARNINGS THAT THE EMPLOYEE MAY RECEIVE FROM ANY OTHER SOURCE.
(B)
WAIVER. NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED, WAIVED OR
DISCHARGED UNLESS THE MODIFICATION, WAIVER OR DISCHARGE IS AGREED TO IN WRITING
AND SIGNED BY THE EMPLOYEE AND BY AN AUTHORIZED OFFICER OF THE COMPANY (OTHER
THAN THE EMPLOYEE). NO WAIVER BY EITHER PARTY OF ANY BREACH OF, OR OF COMPLIANCE
WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT BY THE OTHER PARTY SHALL BE
CONSIDERED A WAIVER OF ANY OTHER CONDITION OR PROVISION OR OF THE SAME CONDITION
OR PROVISION AT ANOTHER TIME.
(C)
INTEGRATION. THIS AGREEMENT, TOGETHER WITH THE OFFER LETTER AGREEMENT
BETWEEN THE COMPANY AND THE EMPLOYEE DATED MAY 10, 2007, AND ANY OUTSTANDING
RESTRICTED CASH
8
AGREEMENTS AND EQUITY AWARD AGREEMENTS REFERENCED HEREIN REPRESENT THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREIN
AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, WHETHER WRITTEN OR ORAL,
WITH RESPECT TO THIS AGREEMENT, ANY RESTRICTED CASH AGREEMENT AND EQUITY AWARD
AGREEMENTS.
(D)
CHOICE OF LAW. THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL SUBSTANTIVE LAWS, BUT NOT
THE CONFLICTS OF LAW RULES, OF THE STATE OF CALIFORNIA.
(E)
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OR
PROVISIONS OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION HEREOF, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
(F)
EMPLOYMENT TAXES. ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT SHALL BE
SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND EMPLOYMENT TAXES.
(G)
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF
WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH TOGETHER WILL CONSTITUTE ONE
AND THE SAME INSTRUMENT.
(H)
NO REPRESENTATIONS. THE EMPLOYEE REPRESENTS THAT HE HAS HAD THE
OPPORTUNITY TO CONSULT WITH HIS ATTORNEYS AND TAX ADVISORS, AND HAS CAREFULLY
READ AND UNDERSTANDS THE SCOPE, EFFECT AND POTENTIAL TAX CONSEQUENCES OF THE
PROVISIONS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE POTENTIAL
CONSEQUENCES OF SECTION 409A OF THE CODE. THE EMPLOYEE REPRESENTS THAT HE IS NOT
RELYING ON THE COMPANY FOR ANY TAX ADVICE.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in