OR OWNERSHIP INTERESTS IN, THE COMPANY AND ITS SUBSIDIARIES.
3.8
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT IS INTENDED TO BIND AND
INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE COMPANY, THE EXECUTIVE, AND
THEIR RESPECTIVE HEIRS, SUCCESSORS AND PERMITTED ASSIGNS.
3.9
CHOICE OF LAW.
ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
3.10
REMEDIES.
SUBJECT TO THE PROVISIONS OF SECTION 3.2, EACH PARTY
WILL BE ENTITLED TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT SPECIFICALLY, TO
RECOVER DAMAGES AND COSTS CAUSED BY ANY BREACH OF ANY PROVISION OF THIS
AGREEMENT AND TO EXERCISE ALL OTHER RIGHTS EXISTING IN ITS FAVOR.
NOTHING
HEREIN SHALL PROHIBIT ANY ARBITRATOR OR JUDICIAL AUTHORITY FROM AWARDING
ATTORNEYS' FEES OR COSTS TO A PREVAILING PARTY IN ANY ARBITRATION OR OTHER
PROCEEDING TO THE EXTENT THAT SUCH ARBITRATOR OR AUTHORITY MAY LAWFULLY DO SO.
3.11
AMENDMENT AND WAIVER.
THE PROVISIONS OF THIS AGREEMENT MAY BE
AMENDED OR WAIVED ONLY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY AND THE
EXECUTIVE, AND NO COURSE OF CONDUCT OR FAILURE OR DELAY IN ENFORCING THE
PROVISIONS OF THIS AGREEMENT WILL AFFECT THE VALIDITY, BINDING EFFECT OR
ENFORCEABILITY OF THIS AGREEMENT.
3.12
THIRD PARTY BENEFICIARIES.
THIS AGREEMENT WILL NOT CONFER ANY
RIGHTS OR REMEDIES UPON ANY PERSON OTHER THAN THE PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS.
3.13
THE EXECUTIVE'S REPRESENTATIONS.
THE EXECUTIVE HEREBY REPRESENTS
AND WARRANTS TO THE COMPANY THAT (I) THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT BY THE EXECUTIVE DO NOT AND SHALL NOT CONFLICT WITH, BREACH,
VIOLATE OR CAUSE A DEFAULT UNDER ANY CONTRACT, AGREEMENT, INSTRUMENT, ORDER,
JUDGMENT OR DECREE TO WHICH THE EXECUTIVE IS A PARTY OR BY WHICH SHE IS BOUND,
(II) THE EXECUTIVE IS NOT AWARE OF ANY EMPLOYMENT AGREEMENT, NONCOMPETE
AGREEMENT OR CONFIDENTIALITY AGREEMENT WITH ANY OTHER PERSON THAT WOULD PRECLUDE
HER FROM ENTERING INTO THIS AGREEMENT, AND (III) UPON THE EXECUTION AND DELIVERY
OF THIS AGREEMENT BY THE COMPANY, THIS AGREEMENT SHALL BE THE VALID AND BINDING
OBLIGATION OF THE EXECUTIVE, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
3.14
AMENDMENT TO COMPLY WITH SECTION 409A OF THE CODE.
TO THE EXTENT
THAT THIS AGREEMENT OR ANY PART THEREOF IS DEEMED TO BE A NONQUALIFIED DEFERRED
COMPENSATION PLAN SUBJECT TO SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE," AND
14
SUCH SECTION, "SECTION 409A"), AND THE TREASURY REGULATIONS (INCLUDING PROPOSED
REGULATIONS) AND GUIDANCE PROMULGATED THEREUNDER, (I) THE PROVISIONS OF THIS
AGREEMENT SHALL BE INTERPRETED IN A MANNER TO THE MAXIMUM EXTENT POSSIBLE TO
COMPLY IN GOOD FAITH WITH SECTION 409A, AND (II) THE PARTIES HERETO AGREE TO
AMEND THIS AGREEMENT FOR