OR ANY OBLIGATIONS OWED BY HIM TO
THIRD PARTIES WHICH ARE REASONABLY LIKELY, IN ANY WAY, TO DETRACT FROM OR
ADVERSELY AFFECT HIS PERFORMANCE HEREUNDER.
SECTION 12.
MISCELLANEOUS.
(A)
SEPARATE AGREEMENTS. THE COVENANTS OF EXECUTIVE CONTAINED IN THIS
AGREEMENT SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND SHALL BE CONSTRUED
AS SEPARATE AGREEMENTS INDEPENDENT OF ANY OTHER AGREEMENT, CLAIM, OR CAUSE OF
ACTION OF EXECUTIVE AGAINST THE COMPANY, WHETHER PREDICATED ON THIS AGREEMENT OR
OTHERWISE. THE COVENANTS CONTAINED IN THIS AGREEMENT ARE NECESSARY TO PROTECT
THE LEGITIMATE BUSINESS INTERESTS OF THE COMPANY.
(B)
ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT
THIS AGREEMENT SUPERSEDES ALL PREVIOUS CONTRACTS AND AGREEMENTS BETWEEN THE
COMPANY AND EXECUTIVE RELATING TO THE SUBJECT MATTER HEREOF AND THAT ANY SUCH
PREVIOUS CONTRACTS OR
9
AGREEMENTS, INCLUDING WITHOUT LIMITATION, THE ORIGINAL EMPLOYMENT AGREEMENT,
SHALL BECOME NULL AND VOID UPON EXECUTION OF THIS AGREEMENT. THIS AGREEMENT
CONSTITUTES THE COMPLETE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND NO PARTY HAS MADE OR IS RELYING ON ANY PROMISES BY ANY
OTHER PARTY OR THEIR RESPECTIVE REPRESENTATIVES NOT CONTAINED IN THIS AGREEMENT.
(C)
SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE
ILLEGAL, INVALID OR UNENFORCEABLE UNDER PRESENT OR FUTURE LAWS, SUCH PROVISION
SHALL BE FULLY SEVERABLE, THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED AS IF
SUCH ILLEGAL, INVALID OR UNENFORCEABLE PROVISION HAD NEVER COMPRISED A PART OF
THIS AGREEMENT, AND THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT AND SHALL NOT BE AFFECTED BY THE ILLEGAL, INVALID OR
UNENFORCEABLE PROVISION OR BY ITS SEVERANCE FROM THIS AGREEMENT. IF ANY
PROVISION OF THIS AGREEMENT IS HELD TO BE UNENFORCEABLE BECAUSE OF THE DURATION
OF SUCH PROVISION, THE AREA COVERED THEREBY OR THE SCOPE OF THE ACTIVITY
RESTRAINED, THE PARTIES HEREBY EXPRESSLY AGREE THAT THE COURT MAKING SUCH
DETERMINATION SHALL HAVE THE POWER TO REDUCE THE DURATION AND/OR AREAS OF SUCH
PROVISION AND/OR THE SCOPE OF THE ACTIVITY TO BE RESTRAINED CONTAINED IN SUCH
PROVISION AND, IN ITS REDUCED FORM, SUCH PROVISION SHALL THEN BE ENFORCEABLE.
(D)
SUCCESSOR AND ASSIGNS.
(I)
THIS AGREEMENT IS PERSONAL IN NATURE AND NEITHER THIS AGREEMENT
NOR ANY RIGHTS OR OBLIGATIONS ARISING HEREUNDER MAY BE ASSIGNED, TRANSFERRED OR
PLEDGED BY EXECUTIVE. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
ENFORCEABLE BY EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES.
(II)
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF
THE COMPANY AND THEIR SUCCESSORS. THE RIGHTS AND OBLIGATIONS OF THE COMPANY
PURSUANT TO THIS AGREEMENT ARE FREELY ASSIGNABLE AND TRANSFERABLE BY COMPANY
WITHOUT THE CONSENT OF EXECUTIVE WITHOUT HIS BEING RELIEVED OF ANY OBLIGATIONS
HEREUNDER, INCLUDING, WITHOUT LIMITATION, AN ASSIGNMENT OR TRANSFER IN
CONNECTION WITH A MERGER OR CONSOLIDATION OF THE COMPANY, OR A SALE OR TRANSFER
OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY; PROVIDED, THE
PROVISIONS OF THIS AGREEMENT SHALL BE BINDING ON AND SHALL INURE TO