BY THIS AGREEMENT MAY RESULT IN THE APPLICATION OF SECTION 409A OF THE
CODE, THE COMPANY (OR FOLLOWING THE CLOSING DATE, HDS) SHALL TAKE ANY ACTIONS IT
DEEMS NECESSARY, INCLUDING MODIFYING THE AGREEMENT, IN ORDER TO EXCLUDE SUCH
COMPENSATION FROM THE DEFINITION OF "DEFERRED COMPENSATION" WITHIN THE MEANING
OF SUCH SECTION 409A OF THE CODE OR
TO COMPLY WITH THE PROVISIONS OF SECTION 409A OF THE CODE, BUT SHALL TO THE
EXTENT POSSIBLE MAINTAIN THE SAME ECONOMIC INTENT.
13.
SEVERABILITY OF PROVISIONS.
IN THE EVENT THAT ANY PROVISION IN
THIS AGREEMENT IS DETERMINED TO BE LEGALLY INVALID OR UNENFORCEABLE BY ANY COURT
OF COMPETENT JURISDICTION, AND CANNOT BE MODIFIED TO BE ENFORCEABLE, THE
AFFECTED PROVISION SHALL BE STRICKEN FROM THE AGREEMENT, AND THE REMAINING TERMS
OF THE AGREEMENT AND ITS ENFORCEABILITY SHALL REMAIN UNAFFECTED.
14.
SUCCESSORS AND ASSIGNS.
HDS WILL REQUIRE ANY SUCCESSOR (WHETHER
DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF HDS (INCLUDING TO
SUBSTANTIALLY ALL OF THE HDS BUSINESS SEGMENT) TO ASSUME AND AGREE IN A WRITING
DELIVERED TO YOU TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THAT HDS WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN
PLACE (BUT WITHOUT DUPLICATION OF PAYMENTS), AND YOU HEREBY CONSENT TO ANY SUCH
ASSUMPTION.
AS USED IN THIS AGREEMENT, "HDS" SHALL MEAN HDS AS HEREINBEFORE
DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS (INCLUDING TO
SUBSTANTIALLY ALL OF THE HDS BUSINESS SEGMENT).
THE COMPANY MAY AT ANY TIME
AND FROM TIME TO TIME ASSIGN ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANY OF ITS
SUBSIDIARIES OR AFFILIATES, PROVIDED THAT NO SUCH ASSIGNMENT SHALL RELIEVE THE
COMPANY FROM ITS SPECIFIC OBLIGATIONS HEREUNDER OR IMPAIR THE COMPANY'S RIGHT TO
ENFORCE THIS AGREEMENT AGAINST YOU.
THE OBLIGATIONS OF THE COMPANY AND HDS
UNDER THIS AGREEMENT ARE SEVERAL, NOT JOINT.
15.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE
UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERTAKINGS, EXCEPT THAT, AS SET FORTH ABOVE, THE CURRENT AGREEMENT SHALL
REMAIN IN EFFECT UNTIL THE CLOSING DATE OF A SALE.
THE PARTIES HAVE NOT RELIED
ON ANY ORAL STATEMENTS THAT ARE NOT INCLUDED IN THIS AGREEMENT.
ANY AMENDMENT
TO THIS AGREEMENT MUST BE IN WRITING.
16.
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND
APPLIED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF.
17.
ARBITRATION.
SUBJECT TO SECTION 10(D), ANY DISPUTE, CONTROVERSY
OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED
TO, A CLAIM FOR BREACH OR AN ACTION FOR DECLARATORY JUDGMENT REGARDING THE
VALIDITY OF THIS AGREEMENT OR ANY PROVISION HEREOF (A "CLAIM"), SHALL BE SETTLED
BY FINAL AND BINDING ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION.
ANY SUCH ARBITRATION SHALL BE CONDUCTED BY ONE
ARBITRATOR MUTUALLY ACCEPTABLE TO THE PARTIES, WHO HAS SUBSTANTIAL EXPERIENCE IN
THE MATTERS COVERED BY THIS