HE/SHE IS NOT SUBJECT TO ANY NONCOMPETITION, CONFIDENTIALITY OR SIMILAR
AGREEMENT WITH ANY PRIOR EMPLOYER WHICH WOULD CONFLICT WITH THE PERFORMANCE OF
HIS/HER DUTIES AS CONTEMPLATED BY THIS AGREEMENT.
15.
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES CONCERNING THE SUBJECT MATTER
HEREOF.
THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS, UNDERSTANDINGS,
DISCUSSIONS, NEGOTIATIONS AND UNDERTAKINGS, WHETHER WRITTEN OR ORAL, BETWEEN THE
PARTIES WITH RESPECT THERETO, INCLUDING THE PRIOR AGREEMENTS.
16.
AMENDMENT OR WAIVER.
NO PROVISION IN THIS AGREEMENT MAY BE
AMENDED UNLESS SUCH AMENDMENT IS AGREED TO IN WRITING AND SIGNED BY THE
EXECUTIVE AND AN AUTHORIZED OFFICER OR DIRECTOR OF THE COMPANY.
NO WAIVER BY
EITHER PARTY OF ANY BREACH BY THE OTHER PARTY OF ANY CONDITION OR PROVISION
CONTAINED IN THIS AGREEMENT TO BE PERFORMED BY SUCH OTHER PARTY SHALL BE DEEMED
A WAIVER OF A SIMILAR OR DISSIMILAR CONDITION OR PROVISION AT THE SAME OR ANY
PRIOR OR SUBSEQUENT TIME.
ANY WAIVER MUST BE IN WRITING AND SIGNED BY THE
EXECUTIVE OR AN AUTHORIZED OFFICER OR DIRECTOR OF THE COMPANY, AS THE CASE MAY
BE.
17.
SEVERABILITY.
IN THE EVENT THAT ANY PROVISION OR PORTION OF THIS
AGREEMENT SHALL BE DETERMINED TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, IN
WHOLE OR IN PART, THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL BE UNAFFECTED
THEREBY AND SHALL REMAIN IN FULL FORCE AND EFFECT TO THE FULLEST EXTENT
PERMITTED BY LAW.
18.
SURVIVAL.
THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL SURVIVE ANY TERMINATION OF THE EXECUTIVE'S EMPLOYMENT TO THE
EXTENT NECESSARY TO THE INTENDED PRESERVATION OF SUCH RIGHTS AND OBLIGATIONS.
19.
NO MITIGATION.
WITHOUT LIMITING ANY OTHER PROVISION HEREOF AND
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY AGREES THAT ANY INCOME AND
OTHER EMPLOYMENT BENEFITS RECEIVED BY THE EXECUTIVE FROM ANY AND ALL SOURCES
OTHER THAN THE COMPANY BEFORE, DURING OR AFTER THE TERM SHALL IN NO WAY REDUCE
OR OTHERWISE AFFECT THE COMPANY'S OBLIGATION TO MAKE PAYMENTS AND AFFORD
BENEFITS HEREUNDER.
20.
GOVERNING LAW/JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF COLORADO APPLICABLE TO
9
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO
ITS CONFLICT OF LAWS RULES TO THE EXTENT SUCH LAWS ARE NOT PREEMPTED BY FEDERAL
BANKRUPTCY LAW.
The parties hereby (i) submit to the exclusive jurisdiction of the courts of the
State of Colorado and the U.S. federal courts (sitting in Colorado), provided
that until the consummation of the Plan, the United States Bankruptcy Court for
the Southern District of New York ("Bankruptcy Court") shall have exclusive
jurisdiction for any action or proceeding relating to this Agreement,
(ii) consent that any such action or proceeding may be brought in any such
venue, (iii) waive any objection that any such action or proceeding, if brought
in any such venue, was brought in any inconvenient forum and agree not to claim
the same, (iv) agree that any judgment in any such action or