"INCLUDING"
MEANS AND SHALL BE READ AS "INCLUDING BUT NOT LIMITED TO" AND THE WORD "OR"
MEANS "OR" IN THE NONEXCLUSIVE SENSE, I.E., EITHER "AND" OR "OR."
(C)
SECTION AND SUBSECTION REFERENCES. EXCEPT
AS OTHERWISE SPECIFIED HEREIN, REFERENCES IN THIS AGREEMENT TO SECTIONS,
SUBSECTIONS, AND PARAGRAPHS ARE REFERENCES TO THE SECTIONS, SUBSECTIONS, AND
PARAGRAPHS OF THIS AGREEMENT.
(D)
HEADINGS. THE HEADINGS OF THE SECTIONS,
SUBSECTIONS, AND PARAGRAPHS OF THIS AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY
AND SHALL NOT BE DEEMED TO CONSTITUTE PART OF THIS AGREEMENT OR AFFECT THE
CONSTRUCTION HEREOF.
(E)
"HEREIN." WORDS SUCH AS "HEREIN,"
"HEREINAFTER," "HEREOF," AND "HEREUNDER" REFER TO THIS AGREEMENT AS A WHOLE AND
NOT MERELY TO A SUBDIVISION IN WHICH SUCH WORDS APPEAR UNLESS THE CONTEXT
OTHERWISE REQUIRES.
(F)
"PERSON." EXCEPT AS MAY BE EXPRESSLY
PROVIDED OTHERWISE HEREIN, THE WORD "PERSON" INCLUDES AN INDIVIDUAL,
CORPORATION, GENERAL OR LIMITED PARTNERSHIP, JOINT VENTURE, LIMITED LIABILITY
COMPANY, BUSINESS TRUST, FIRM, ASSOCIATION, OR OTHER FORM OF BUSINESS ENTITY.
(G)
JOINT DRAFTING. THE PARTIES HAVE
PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT. IN THE
EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THIS
AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES AND NO
PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING EITHER PARTY
BY VIRTUE OF THE AUTHORSHIP OF ANY OF THE PROVISIONS OF THIS AGREEMENT.
5.3.
SUCCESSORS; BINDING AGREEMENT.
(A)
THE COMPANY SHALL REQUIRE ANY SUCCESSOR
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY TO EXPRESSLY
ASSUME 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. FAILURE OF THE COMPANY TO OBTAIN SUCH ASSUMPTION AND AGREEMENT
BEFORE THE EFFECTIVENESS OF ANY SUCH SUCCESSION SHALL BE A BREACH OF THIS
AGREEMENT. UNLESS EXPRESSLY PROVIDED OTHERWISE, "COMPANY" AS USED HEREIN MEANS
THE COMPANY AS DEFINED IN THIS AGREEMENT AND ANY SUCCESSOR TO ITS BUSINESS OR
ASSETS AS AFORESAID.
9
(B)
THIS AGREEMENT MAY NOT BE ASSIGNED BY
EXECUTIVE BUT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EXECUTIVE AND
EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, HEIRS,
DISTRIBUTEES, DEVISEES AND LEGATEES. IF EXECUTIVE DIES WHILE ANY AMOUNTS REMAINS
PAYABLE TO EXECUTIVE HEREUNDER, ALL SUCH AMOUNTS, UNLESS OTHERWISE PROVIDED
HEREIN, SHALL BE PAID IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT TO
EXECUTIVE'S DEVISEE, LEGATEE, OR OTHER DESIGNEE OR, IF THERE IS NO SUCH
DESIGNEE, TO EXECUTIVE'S ESTATE.
5.4.
NO CONTRACT OF EMPLOYMENT. EXECUTIVE
ACKNOWLEDGES THAT EXECUTIVE'S EMPLOYMENT WITH THE COMPANY IS "AT WILL." THIS
AGREEMENT DOES NOT AND IS NOT INTENDED TO CONFER UPON EXECUTIVE ANY RIGHT OF
CONTINUED OR FUTURE EMPLOYMENT BY THE COMPANY OR ANY RIGHT TO COMPENSATION OR
BENEFITS FROM THE COMPANY EXCEPT THE RIGHTS SPECIFICALLY STATED HEREIN, AND
SHALL NOT LIMIT THE RIGHT OF THE COMPANY TO TERMINATE EXECUTIVE'S EMPLOYMENT AT
ANY TIME WITH OR WITHOUT