AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL PERSONAL REPRESENTATIVE.
13.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. ANY ACTION BROUGHT BY ANY
PARTY TO THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED IN A COURT OF COMPETENT
JURISDICTION IN THE STATE OF DELAWARE.
14.
SEVERABILITY.
THE PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED
SEVERABLE AND THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY OF THE OTHER PROVISIONS HEREOF.
15.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO, AND SUPERSEDES ALL PRIOR AGREEMENTS, IF ANY,
UNDERSTANDINGS
7
AND ARRANGEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES HERETO, WITH RESPECT TO
THE SUBJECT MATTER HEREOF.
16.
DEFINITIONS.
16.1
ACCRUED COMPENSATION. FOR PURPOSES OF THIS AGREEMENT, "ACCRUED
COMPENSATION" SHALL MEAN ALL AMOUNTS OF COMPENSATION FOR SERVICES RENDERED TO
THE COMPANY OR AN EMPLOYING AFFILIATE THAT HAVE BEEN EARNED OR ACCRUED THROUGH
THE TERMINATION DATE BUT THAT HAVE NOT BEEN PAID AS OF THE TERMINATION DATE,
INCLUDING (A) BASE SALARY, (B) REIMBURSEMENT FOR REASONABLE AND NECESSARY
BUSINESS EXPENSES INCURRED BY THE EXECUTIVE ON BEHALF OF THE COMPANY OR AN
EMPLOYING AFFILIATE DURING THE PERIOD ENDING ON THE TERMINATION DATE AND (C)
VACATION PAY; PROVIDED, HOWEVER, THAT ACCRUED COMPENSATION SHALL NOT INCLUDE ANY
AMOUNTS DESCRIBED IN CLAUSE (A) THAT HAVE BEEN DEFERRED PURSUANT TO ANY SALARY
REDUCTION OR DEFERRED COMPENSATION ELECTIONS MADE BY THE EXECUTIVE.
16.2
AFFILIATE. FOR PURPOSES OF THIS AGREEMENT, "AFFILIATE" MEANS, WITH
RESPECT TO ANY PERSON, ANY ENTITY, DIRECTLY OR INDIRECTLY, CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH SUCH PERSON.
16.3
BASE AMOUNT. FOR PURPOSES OF THIS AGREEMENT, "BASE AMOUNT" SHALL
MEAN, WITH RESPECT TO A CHANGE IN CONTROL, THE EXECUTIVE'S "BASE AMOUNT" AS
DETERMINED UNDER SECTION 280G OF THE CODE AND THE REGULATIONS PROPOSED
THEREUNDER.
16.4
CAUSE. FOR PURPOSES OF THIS AGREEMENT, A TERMINATION OF EMPLOYMENT
IS FOR "CAUSE" IF THE EXECUTIVE
(a)
has been
convicted of a felony
(including a plea of nolo
contendere);
(b)
intentionally and continually failed substantially to perform his
reasonably assigned duties with the Company or an Employing Affiliate (other
than a failure resulting from the Executive's incapacity due to physical or
mental illness or from the assignment to the Executive of duties that would
constitute Good Reason) which failure continued for a period of at least thirty
days after a written notice of demand for substantial performance, signed by a
duly authorized officer of the Company, has been delivered to the Executive
specifying the manner in which the Executive has failed substantially to perform
such duties; or
(c)
intentionally engaged in illegal conduct or willful misconduct
which is demonstrably and materially injurious to the Company or an Employing
Affiliate.
For purposes of this Agreement, no act, or failure to act, on the Executive's
part shall be considered "intentional" unless the Executive has acted,