5
BENEFITS OTHERWISE PAYABLE HEREUNDER AS A RESULT OF SUCH TERMINATION OF
EMPLOYMENT IS NECESSARY IN ORDER TO PREVENT ANY ACCELERATED OR ADDITIONAL TAX
UNDER SECTION 409A OF THE CODE, THEN THE EMPLOYER WILL DEFER THE COMMENCEMENT OF
THE PAYMENT OF ANY SUCH PAYMENTS OR BENEFITS HEREUNDER (WITHOUT ANY REDUCTION IN
SUCH PAYMENTS OR BENEFITS ULTIMATELY PAID OR PROVIDED TO EXECUTIVE) UNTIL THE
DATE THAT IS SIX MONTHS FOLLOWING EXECUTIVE'S TERMINATION OF EMPLOYMENT WITH THE
EMPLOYER OR ANY OF ITS AFFILIATES (OR THE EARLIEST DATE AS IS PERMITTED UNDER
SECTION 409A OF THE CODE).
7.
MISCELLANEOUS.
A.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK FOR AGREEMENTS FULLY PERFORMED WITHIN
THE STATE.
B.
ENTIRE AGREEMENT/AMENDMENTS.
THIS AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER CONTAINED
HEREIN, AND DURING THE TERM SUPERSEDES ALL PRIOR AGREEMENTS, PROMISES,
WARRANTIES, COVENANTS OR UNDERTAKINGS BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREIN.
THIS AGREEMENT MAY NOT BE ALTERED, MODIFIED, OR AMENDED
EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE PARTIES HERETO.
C.
NO WAIVER; SEVERABILITY.
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.
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 AND SHALL REMAIN IN FULL FORCE AND
EFFECT.
D.
SUCCESSOR; BINDING AGREEMENT.
THIS AGREEMENT SHALL INURE TO AND
BE BINDING UPON ANY SUCCESSOR OR ASSIGN OF THE COMPANY OR THE EMPLOYER (AND SUCH
SUCCESSOR OR ASSIGN SHALL HEREAFTER BE DEEMED THE "COMPANY" OR "EMPLOYER" AS THE
CASE MAY BE).
THE COMPANY AND THE EMPLOYER SHALL ASSIGN THIS AGREEMENT AND ITS
RESPECTIVE OBLIGATIONS HEREUNDER TO ANY SUCCESSOR OR ASSIGN THEREOF, WHETHER BY
MERGER, CONSOLIDATION, SALE OF SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS OR
CAPITAL STOCK OR OTHERWISE, AND THE COMPANY AND THE EMPLOYER SHALL REQUIRE ANY
SUCCESSOR OR ASSIGN TO EXPRESSLY ASSUME AND AGREE TO PERFORM THE RESPECTIVE
OBLIGATIONS OF THE COMPANY AND THE EMPLOYER HEREUNDER IN THE SAME MANNER AND TO
THE SAME EXTENT THAT THE COMPANY AND THE EMPLOYER WOULD BE REQUIRED TO PERFORM
IT IF NO SUCH TRANSFER OR ASSIGNMENT HAD TAKEN PLACE.
ANY ASSIGNMENT OR
TRANSFER OF THIS AGREEMENT NOT IN COMPLIANCE WITH THE FOREGOING SHALL BE VOID
AND OF NO FORCE AND EFFECT. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
ENFORCEABLE BY EXECUTIVE AND EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
IF EXECUTIVE SHOULD DIE WHILE ANY AMOUNT WOULD STILL BE PAYABLE TO
EXECUTIVE HEREUNDER HAD EXECUTIVE CONTINUED TO LIVE, ALL SUCH AMOUNTS, UNLESS
OTHERWISE