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 ANY PARTY WHICH ARE NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT.
12.
SUCCESSORS; BINDING AGREEMENT.
(A)
THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE
BENEFIT OF THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
THE COMPANY SHALL
REQUIRE ITS SUCCESSORS AND ASSIGNS TO EXPRESSLY ASSUME AND AGREE TO PERFORM THIS
AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE
REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION OR ASSIGNMENT HAD TAKEN PLACE.
(B)
NEITHER THIS AGREEMENT NOR ANY RIGHT OR INTEREST HEREUNDER SHALL
BE ASSIGNABLE OR TRANSFERABLE BY THE EXECUTIVE, HIS BENEFICIARIES OR LEGAL
REPRESENTATIVES, EXCEPT BY WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
EXECUTIVE'S LEGAL PERSONAL REPRESENTATIVE.
13.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
ANY ACTION BROUGHT BY ANY
PARTY TO THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED IN A COURT OF COMPETENT
JURISDICTION IN THE STATE OF DELAWARE.
14.
SEVERABILITY.
THE PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED
SEVERABLE AND THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY OF THE OTHER PROVISIONS HEREOF.
15.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO, AND SUPERSEDES ALL PRIOR AGREEMENTS, IF ANY,
UNDERSTANDINGS AND ARRANGEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES HERETO,
WITH RESPECT TO THE SUBJECT MATTER HEREOF.
16.
DEFINITIONS.
16.1
ACCRUED COMPENSATION.
FOR PURPOSES OF THIS AGREEMENT, "ACCRUED
COMPENSATION" SHALL MEAN ALL AMOUNTS OF COMPENSATION FOR SERVICES RENDERED TO
THE COMPANY OR
7
AN EMPLOYING AFFILIATE THAT HAVE BEEN EARNED OR ACCRUED THROUGH THE TERMINATION
DATE BUT THAT HAVE NOT BEEN PAID AS OF THE TERMINATION DATE, INCLUDING (A) BASE
SALARY, (B) REIMBURSEMENT FOR REASONABLE AND NECESSARY BUSINESS EXPENSES
INCURRED BY THE EXECUTIVE ON BEHALF OF THE COMPANY OR AN EMPLOYING AFFILIATE
DURING THE PERIOD ENDING ON THE TERMINATION DATE AND (C) VACATION PAY; PROVIDED,
HOWEVER, THAT ACCRUED COMPENSATION SHALL NOT INCLUDE ANY AMOUNTS DESCRIBED IN
CLAUSE (A) THAT HAVE BEEN DEFERRED PURSUANT TO ANY SALARY REDUCTION OR DEFERRED
COMPENSATION ELECTIONS MADE BY THE EXECUTIVE.
16.2
AFFILIATE.
FOR PURPOSES OF THIS AGREEMENT, "AFFILIATE," MEANS,
WITH RESPECT TO ANY PERSON, ANY ENTITY, DIRECTLY OR INDIRECTLY, CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH SUCH PERSON.
16.3
[INTENTIONALLY OMITTED.]
16.4
CAUSE.
FOR PURPOSES OF THIS AGREEMENT, A TERMINATION OF EMPLOYMENT
IS FOR "CAUSE" IF THE EXECUTIVE
(a)
has been convicted of a felony (including a plea of nolo
contendere);
(b)
intentionally and continually failed substantially to perform his
reasonably assigned duties with the Company or an Employing Affiliate (other
than a failure resulting from