AGREEMENT, BOTH PARTIES
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THE AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION (EXCEPT AS PROVIDED IN
SECTION 10(C) ABOVE, AND THAT THE ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT
LIMITED TO, DISCRIMINATION CLAIMS.
(E)
EXECUTIVE UNDERSTANDS THAT NOTHING IN THIS SECTION MODIFIES EXECUTIVE'S
AT-WILL EMPLOYMENT STATUS.
EITHER EXECUTIVE OR THE COMPANY CAN TERMINATE THE
EMPLOYMENT RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.
11.
CODE SECTION 409A.
THE PARTIES AGREE TO AMEND THIS AGREEMENT TO THE
EXTENT NECESSARY TO AVOID IMPOSITION OF ANY ADDITIONAL TAX OR INCOME RECOGNITION
PRIOR TO ACTUAL PAYMENT TO EXECUTIVE UNDER CODE SECTION 409A AND ANY TEMPORARY
OR FINAL TREASURY REGULATIONS AND IRS GUIDANCE THEREUNDER.
12.
MISCELLANEOUS PROVISIONS.
(A)
NO DUTY TO MITIGATE.
THE EXECUTIVE SHALL NOT BE REQUIRED TO MITIGATE THE
AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS AGREEMENT, NOR SHALL ANY SUCH PAYMENT
BE REDUCED BY ANY EARNINGS THAT THE EXECUTIVE MAY RECEIVE FROM ANY OTHER SOURCE.
(B)
WAIVER.
NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED, WAIVED OR
DISCHARGED UNLESS THE MODIFICATION, WAIVER OR DISCHARGE IS AGREED TO IN WRITING
AND SIGNED BY THE EXECUTIVE AND BY AN AUTHORIZED OFFICER OF THE COMPANY (OTHER
THAN THE EXECUTIVE).
NO WAIVER BY EITHER PARTY OF ANY BREACH OF, OR OF
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT BY THE OTHER PARTY
SHALL BE CONSIDERED A WAIVER OF ANY OTHER CONDITION OR PROVISION OR OF THE SAME
CONDITION OR PROVISION AT ANOTHER TIME.
(C)
INTEGRATION.
THIS AGREEMENT AND ANY OUTSTANDING STOCK OPTION AGREEMENTS
AND RESTRICTED STOCK PURCHASE AGREEMENTS REPRESENT THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREIN AND SUPERSEDE
ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, WHETHER WRITTEN OR ORAL, WITH RESPECT
TO ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY STOCK OPTION AGREEMENT OR
RESTRICTED STOCK PURCHASE AGREEMENT THIS AGREEMENT SHALL PREVAIL.
9
(D)
CHOICE OF LAW.
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL SUBSTANTIVE LAWS, BUT NOT
THE CONFLICTS OF LAW RULES, OF THE STATE OF CALIFORNIA.
(E)
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OR
PROVISIONS OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION HEREOF, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
(F)
EMPLOYMENT TAXES.
ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT SHALL BE
SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND EMPLOYMENT TAXES.
(G)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN SEPARATE COUNTERPARTS,
ANY ONE OF WHICH NEED NOT CONTAIN SIGNATURES OF MORE THAN ONE PARTY, BUT ALL OF
WHICH TAKEN TOGETHER WILL CONSTITUTE ONE AND THE SAME AGREEMENT.
(H)
HEADINGS.
THE HEADINGS OF THE ARTICLES AND SECTIONS HEREOF ARE INSERTED
FOR CONVENIENCE ONLY AND SHALL NOT BE DEEMED TO CONSTITUTE A PART HEREOF NOR TO
AFFECT