AND HEIRS. THE COMPANY
MAY ASSIGN THIS AGREEMENT TO ANY DIRECT OR INDIRECT
3
SUBSIDIARY OF COMPANY, OR ANY SUCCESSOR TO ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS AND BUSINESS BY MEANS OF LIQUIDATION, DISSOLUTION, MERGER, CONSOLIDATION,
TRANSFER OF ASSETS, SALE OF STOCK OR OTHERWISE. THE RIGHTS AND OBLIGATIONS OF
EXECUTIVE HEREUNDER ARE PERSONAL TO EXECUTIVE AND MAY NOT BE ASSIGNED BY HIM.
3.4.
NOTICE. ANY NOTICE OR COMMUNICATION REQUIRED
OR PERMITTED UNDER THIS AGREEMENT SHALL BE MADE IN WRITING AND (A) SENT BY
OVERNIGHT COURIER, (B) MAILED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED OR (C) SENT BY TELECOPIER, ADDRESSED AS FOLLOWS:
If to Executive, to the address set forth in his personnel file.
If to Company:
Real Mex Restaurants, Inc.
5660 Katella Avenue
Suite 100
Cypress, CA 90630
Attention: Chairman of the Board
Facsimile No.: (562) 346-1465
or to such other address as either party may from time to time specify by notice
given to the other party in the manner described above.
3.5.
ENTIRE AGREEMENT; AMENDMENTS. THIS AGREEMENT
CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES HERETO RELATING
TO THE SUBJECT MATTER HEREOF, AND MERGES AND SUPERSEDES ALL PRIOR AND
CONTEMPORANEOUS DISCUSSIONS, AGREEMENTS AND UNDERSTANDINGS OF EVERY NATURE
RELATING TO THE SUBJECT MATTER HEREOF, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
FOR HEREIN. THIS AGREEMENT MAY NOT BE CHANGED OR MODIFIED, EXCEPT BY AN
AGREEMENT IN WRITING SIGNED BY EACH OF THE PARTIES HERETO.
3.6.
WAIVER. ANY WAIVER BY EITHER PARTY OF ANY
BREACH OF ANY TERM OR CONDITION IN THIS AGREEMENT SHALL NOT OPERATE AS A WAIVER
OF ANY OTHER BREACH OF SUCH TERM OR CONDITION OR OF ANY OTHER TERM OR CONDITION,
NOR SHALL ANY FAILURE TO ENFORCE ANY PROVISION HEREOF OPERATE AS A WAIVER OF
SUCH PROVISION OR OF ANY OTHER PROVISION HEREOF OR CONSTITUTE OR BE DEEMED A
WAIVER OR RELEASE OF ANY OTHER RIGHTS, IN LAW OR IN EQUITY.
3.7.
GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO THE APPLICATION OF THE PRINCIPLES OF CONFLICTS OF
LAWS.
3.8.
SEVERABILITY. WHENEVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT WILL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW. HOWEVER, IF ANY PROVISION OF THIS
AGREEMENT IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, SUCH
INVALIDITY, ILLEGALITY OR UNENFORCEABILITY WILL NOT AFFECT ANY OTHER PROVISION,
AND THIS AGREEMENT WILL BE REFORMED, CONSTRUED AND ENFORCED AS THOUGH THE
INVALID, ILLEGAL OR UNENFORCEABLE PROVISION HAD NEVER BEEN HEREIN CONTAINED.
4
3.9.
SECTION HEADINGS. THE SECTION HEADINGS IN THIS
AGREEMENT ARE FOR CONVENIENCE ONLY; THEY FORM NO PART OF THIS AGREEMENT AND
SHALL NOT AFFECT ITS INTERPRETATION.
3.10.
WITHHOLDING. ANY PAYMENTS DUE TO EXECUTIVE
HEREUNDER WILL BE SUBJECT TO WITHHOLDING FOR ALL TAXES OR OTHER AMOUNTS REQUIRED
TO BE WITHHELD PURSUANT TO APPLICABLE LAW.
3.11.
COMPLIANCE WITH SECTION 409A. NOTWITHSTANDING ANY
OTHER PROVISION OF THIS AGREEMENT, ALL PAYMENTS TO BE MADE HEREUNDER SHALL