Attention: Timothy Walsh
and
O'Melveny & Myers LLP
7 Times Square
New York, New York 10036
Telephone: (212) 408-2400
Telecopier: (212) 408-2420
Attention: Ilan S. Nissan, Esq.
and
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois
60603
Telephone: (312) 853-7000
Telecopier: (312) 853-7036
Attention:
Brian J. Gold;
16
or such other address as the recipient party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith.
Any such
communication shall deemed to have been delivered and received (i) in the case
of personal delivery, on the date of such delivery, (ii) in the case of delivery
by mail, on the date received, (iii) if telecopied, on the date telecopied as
evidenced by confirmed receipt, and (iv) in the case of delivery by nationally
recognized, overnight courier, on the date received.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE DOCUMENTS EXPRESSLY
REFERRED TO HEREIN EMBODY THE COMPLETE AGREEMENT AND UNDERSTANDING AMONG THE
PARTIES AND, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, SUPERSEDE AND
PREEMPT ANY PRIOR UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG THE
PARTIES, WRITTEN OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER HEREOF IN
ANY WAY.
(D)
COUNTERPARTS AND FACSIMILE EXECUTION.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND
THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN ONE OR MORE COUNTERPARTS HAVE
BEEN SIGNED BY EACH OF THE PARTIES AND DELIVERED (BY FACSIMILE OR OTHERWISE) TO
THE OTHER PARTY, IT BEING UNDERSTOOD THAT ALL PARTIES NEED NOT SIGN THE SAME
COUNTERPART.
ANY COUNTERPART OR OTHER SIGNATURE TO THIS AGREEMENT THAT IS
DELIVERED BY FACSIMILE SHALL BE DEEMED FOR ALL PURPOSES AS CONSTITUTING GOOD AND
VALID EXECUTION AND DELIVERY BY SUCH PARTY OF THIS AGREEMENT.
(E)
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS
AGREEMENT SHALL BIND AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
EXECUTIVE AND THE COMPANY AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS,
REPRESENTATIVES AND ESTATE, AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT THE
OBLIGATIONS OF THE EXECUTIVE UNDER THIS AGREEMENT SHALL NOT BE ASSIGNED WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE COMPANY WILL REQUEST ANY
SUCCESSOR TO ALL OR SUBSTANTIALLY ALL ASSETS OF THE COMPANY UPON A LIQUIDATION
EVENT OF THE TYPE SPECIFIED IN CLAUSE (A) THEREOF 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.
IF SUCH SUCCESSOR SHALL NOT SO ASSUME THE PERFORMANCE THEREOF OR IF THE
EXECUTIVE DOES NOT CONSENT TO SUCH ASSIGNMENT, THEN THE EXECUTIVE'S SOLE
RECOURSE UNDER THIS AGREEMENT WITH RESPECT TO SUCH EVENT SHALL BE TO EFFECT A
RESIGNATION FOR GOOD REASON, EFFECTIVE IMMEDIATELY PRIOR TO THE CONSUMMATION OF
SUCH LIQUIDATION EVENT; PROVIDED, HOWEVER, THAT SUCH RESIGNATION FOR GOOD REASON
SHALL NOT BE EFFECTIVE IF SUCH LIQUIDATION EVENT SHALL NOT BE CONSUMMATED.
ANY
SUCCESSOR TO