To the Executive:
Gordon R. Cooke
400 East 57th Street
New York, New York 10022
11.
MISCELLANEOUS.
NO PROVISION OF THIS
AGREEMENT MAY BE MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH WAIVER, MODIFICATION
OR DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY THE EXECUTIVE AND SUCH
OFFICER AS MAY BE SPECIFICALLY DESIGNATED BY THE BOARD.
NO WAIVER BY EITHER
PARTY HERETO AT ANY TIME OF ANY BREACH BY THE OTHER PARTY HERETO OF, OR
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT TO BE PERFORMED BY
SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF SIMILAR OR DISSIMILAR PROVISIONS OR
CONDITIONS AT THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
NO AGREEMENTS OR
REPRESENTATIONS, ORAL OR OTHERWISE, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SUBJECT MATTER HEREOF HAVE BEEN MADE BY EITHER PARTY WHICH ARE NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT.
THIS AGREEMENT SUPERSEDES THE PRIOR AGREEMENT IN ITS
ENTIRETY.
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
ALL REFERENCES TO
SECTIONS OF THE EXCHANGE ACT SHALL BE DEEMED ALSO TO REFER TO ANY SUCCESSOR
PROVISIONS TO SUCH SECTIONS. ANY PAYMENTS PROVIDED FOR HEREUNDER SHALL BE PAID
NET OF ANY APPLICABLE WITHHOLDING REQUIRED UNDER FEDERAL, STATE OR LOCAL LAW AND
ANY ADDITIONAL WITHHOLDING TO WHICH THE EXECUTIVE HAS AGREED. THE OBLIGATIONS OF
THE COMPANY AND THE EXECUTIVE UNDER SECTIONS 6 AND 7 HEREOF SHALL SURVIVE THE
EXPIRATION OF THE TERM OF THIS AGREEMENT.
12.
VALIDITY. THE INVALIDITY OR UNENFORCEABILITY
OR ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH SHALL REMAIN IN
FULL FORCE AND EFFECT.
13.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED
IN SEVERAL COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL BUT ALL
OF WHICH TOGETHER WILL CONSTITUTE ONE AND THE SAME INSTRUMENT.
14.
SETTLEMENT OF DISPUTES; ARBITRATION. ALL
CLAIMS BY THE EXECUTIVE FOR BENEFITS UNDER THIS AGREEMENT SHALL BE DIRECTED TO
AND DETERMINED BY THE BOARD AND SHALL BE IN WRITING. ANY DENIAL BY THE BOARD OF
A CLAIM FOR BENEFITS UNDER THIS AGREEMENT SHALL BE DELIVERED TO THE EXECUTIVE IN
WRITING AND SHALL SET FORTH THE SPECIFIC REASONS FOR THE DENIAL AND THE SPECIFIC
PROVISIONS OF THIS AGREEMENT RELIED UPON. THE BOARD SHALL AFFORD A REASONABLE
OPPORTUNITY TO THE EXECUTIVE FOR A REVIEW OF THE DECISION DENYING A CLAIM AND
SHALL FURTHER ALLOW THE EXECUTIVE TO APPEAL TO THE BOARD A DECISION OF THE BOARD
WITHIN SIXTY (60) DAYS AFTER NOTIFICATION BY THE BOARD
8
THAT THE EXECUTIVE'S CLAIM HAS BEEN DENIED. ANY FURTHER DISPUTE OR CONTROVERSY
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE SETTLED EXCLUSIVELY
BY ARBITRATION IN BOSTON, MASSACHUSETTS, IN ACCORDANCE WITH THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT.
JUDGMENT MAY BE ENTERED ON THE
ARBITRATOR'S AWARD IN ANY COURT HAVING JURISDICTION; PROVIDED, HOWEVER, THAT THE
EXECUTIVE SHALL BE