SHALL ASSIGN
THIS AGREEMENT AND SUCH RIGHTS AND OBLIGATIONS, TO ANY SUCCESSOR (AS HEREINAFTER
DEFINED) WHICH, BY OPERATION OF LAW OR OTHERWISE, CONTINUES
16
TO CARRY ON SUBSTANTIALLY THE BUSINESS OF THE COMPANY (OR A BUSINESS UNIT OF THE
COMPANY FOR WHICH EXECUTIVE PROVIDED SERVICES) PRIOR TO THE EVENT OF SUCCESSION,
AND THE COMPANY SHALL, AS A CONDITION OF THE SUCCESSION, REQUIRE SUCH SUCCESSOR
TO AGREE IN WRITING TO ASSUME THE COMPANY'S OBLIGATIONS AND BE BOUND BY THIS
AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT, "SUCCESSOR" SHALL MEAN ANY PERSON
THAT SUCCEEDS TO, OR HAS THE PRACTICAL ABILITY TO CONTROL, THE COMPANY'S
BUSINESS DIRECTLY OR INDIRECTLY, BY MERGER OR CONSOLIDATION, BY PURCHASE OR
OWNERSHIP OF VOTING SECURITIES OF THE COMPANY OR ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS OR THOSE RELATING TO A PARTICULAR BUSINESS UNIT OF THE COMPANY TO WHICH
EXECUTIVE PROVIDES SERVICES, OR OTHERWISE.
THE COMPANY MAY ALSO ASSIGN THIS
AGREEMENT AND THE COMPANY'S RIGHTS AND OBLIGATIONS HEREUNDER TO ANY AFFILIATE OF
THE COMPANY, PROVIDED THAT UPON ANY SUCH ASSIGNMENT THE COMPANY SHALL REMAIN
LIABLE FOR THE OBLIGATIONS TO EXECUTIVE HEREUNDER.
THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF EXECUTIVE, EXECUTIVE'S HEIRS,
EXECUTORS, ADMINISTRATORS, AND BENEFICIARIES, AND SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
11.
COMPLETE UNDERSTANDING; AMENDMENT; WAIVER.
THIS AGREEMENT CONSTITUTES THE COMPLETE UNDERSTANDING BETWEEN THE PARTIES WITH
RESPECT TO THE EMPLOYMENT OF EXECUTIVE AND SUPERSEDES ALL OTHER PRIOR AGREEMENTS
AND UNDERSTANDINGS, BOTH WRITTEN AND ORAL, BETWEEN THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF, AND NO STATEMENT, REPRESENTATION, WARRANTY OR
COVENANT HAS BEEN MADE BY EITHER PARTY WITH RESPECT THERETO EXCEPT AS EXPRESSLY
SET FORTH HEREIN. EXHIBIT B LISTS ALL EXISTING AGREEMENTS AND UNDERSTANDINGS
WHICH SHALL BE TERMINATED AS OF THE EFFECTIVE DATE.
THIS AGREEMENT SHALL NOT BE
MODIFIED, AMENDED OR TERMINATED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY EACH OF
THE PARTIES.
ANY WAIVER OF ANY TERM OR PROVISION HEREOF, OR OF THE APPLICATION
OF ANY SUCH TERM OR PROVISION TO ANY CIRCUMSTANCES, SHALL BE IN WRITING SIGNED
BY THE PARTY CHARGED WITH GIVING SUCH WAIVER.
WAIVER BY EITHER PARTY OF ANY
BREACH HEREUNDER BY THE OTHER PARTY SHALL NOT OPERATE AS A WAIVER OF ANY OTHER
BREACH, WHETHER SIMILAR TO OR DIFFERENT FROM THE BREACH WAIVED.
NO DELAY BY
EITHER PARTY IN THE EXERCISE OF ANY RIGHTS OR REMEDIES SHALL OPERATE AS A WAIVER
THEREOF, AND NO SINGLE OR PARTIAL EXERCISE BY EITHER PARTY OF ANY SUCH RIGHT OR
REMEDY SHALL PRECLUDE OTHER OR FURTHER EXERCISE THEREOF.
12.
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT OR THE APPLICATION OF ANY SUCH PROVISION TO ANY PERSON OR
CIRCUMSTANCES SHALL BE DETERMINED BY ANY COURT OF COMPETENT JURISDICTION TO BE
INVALID OR UNENFORCEABLE TO ANY EXTENT, THE REMAINDER OF THIS AGREEMENT, OR THE
APPLICATION OF SUCH PROVISION TO SUCH PERSON OR CIRCUMSTANCES OTHER THAN THOSE
TO WHICH IT IS SO DETERMINED TO BE INVALID OR UNENFORCEABLE, SHALL NOT BE
AFFECTED THEREBY,