ORIGINAL SENIOR MANAGEMENT AGREEMENT
AND ANY PROVISION SO BREACHED SHALL NOT BE SUPERSEDED BY THIS AGREEMENT FOR
PURPOSES OF ACTIONS TAKEN IN CONNECTION WITH SUCH BREACH AND LIABILITIES RELATED
THERETO AND THE RIGHTS OF THE PARTIES HERETO UNDER SECTION 1(E) OF EACH OF THE
RESTATED SENIOR MANAGEMENT AGREEMENT AND THE ORIGINAL SENIOR MANAGEMENT
AGREEMENT SHALL SURVIVE THIS AMENDMENT AND RESTATEMENT.
THIS AGREEMENT, THE RSU
GRANT AGREEMENT AND THOSE DOCUMENTS EXPRESSLY REFERRED TO HEREIN EMBODY THE
COMPLETE AGREEMENT AND UNDERSTANDING AMONG THE PARTIES AND SUPERSEDE AND PREEMPT
ANY PRIOR UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG THE PARTIES,
WRITTEN OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER HEREOF IN ANY WAY.
(D)
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT SHALL BE
DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULE OF STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY PARTY.
21
(E)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN SEPARATE COUNTERPARTS
(INCLUDING BY MEANS OF FACSIMILE), EACH OF WHICH IS DEEMED TO BE AN ORIGINAL AND
ALL OF WHICH TAKEN TOGETHER CONSTITUTE ONE AND THE SAME AGREEMENT.
(F)
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS
AGREEMENT SHALL BIND AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY
EXECUTIVE, EXECUTIVE TRUST, AQUILA, AQUILA TRUST, THE COMPANY, EMPLOYER, THE
INVESTORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (INCLUDING SUBSEQUENT
HOLDERS OF EXECUTIVE SECURITIES); PROVIDED THAT THE RIGHTS AND OBLIGATIONS OF
EXECUTIVE UNDER THIS AGREEMENT SHALL NOT BE ASSIGNABLE EXCEPT IN CONNECTION WITH
A PERMITTED TRANSFER OF EXECUTIVE SECURITIES HEREUNDER.
(G)
CHOICE OF LAW.
THE LAW OF THE STATE OF DELAWARE WILL GOVERN ALL QUESTIONS
CONCERNING THE RELATIVE RIGHTS OF THE COMPANY, EMPLOYER AND ITS
SECURITYHOLDERS.
ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(H)
MUTUAL WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP
ESTABLISHED AMONG THE PARTIES HEREUNDER.
(I)
EXECUTIVE'S COOPERATION.
DURING