West
155 Seaport Boulevard
Boston, Massachusetts 02210-2600
To the Executive:
Gordon R. Cooke
400 East 57th Street
New York, New York 10022
11.
MISCELLANEOUS.
NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED,
WAIVED OR DISCHARGED UNLESS SUCH WAIVER, MODIFICATION OR DISCHARGE IS AGREED TO
IN WRITING AND SIGNED BY THE EXECUTIVE AND SUCH OFFICER AS MAY BE SPECIFICALLY
DESIGNATED BY THE BOARD.
NO WAIVER BY EITHER PARTY HERETO AT ANY TIME OF ANY
BREACH BY THE OTHER PARTY HERETO OF, OR COMPLIANCE WITH, ANY CONDITION OR
PROVISION OF THIS AGREEMENT TO BE PERFORMED BY SUCH OTHER PARTY SHALL BE DEEMED
A WAIVER OF 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
EITHER PARTY WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
THIS
AGREEMENT SUPERSEDES THE PRIOR AGREEMENT IN ITS ENTIRETY.
THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
ALL REFERENCES TO SECTIONS OF THE EXCHANGE ACT
SHALL BE DEEMED ALSO TO REFER TO ANY SUCCESSOR PROVISIONS TO SUCH SECTIONS. ANY
PAYMENTS PROVIDED FOR HEREUNDER SHALL BE PAID NET OF ANY APPLICABLE WITHHOLDING
REQUIRED UNDER FEDERAL, STATE OR LOCAL LAW AND ANY ADDITIONAL WITHHOLDING TO
WHICH THE EXECUTIVE HAS AGREED. THE OBLIGATIONS OF THE COMPANY AND THE EXECUTIVE
UNDER SECTIONS 6 AND 7 HEREOF SHALL SURVIVE THE EXPIRATION OF THE TERM OF THIS
AGREEMENT.
12.
VALIDITY. THE INVALIDITY OR UNENFORCEABILITY OR ANY PROVISION OF
THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER
PROVISION OF THIS AGREEMENT, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
13.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL BUT ALL OF WHICH
TOGETHER WILL CONSTITUTE ONE AND THE SAME INSTRUMENT.
14.
SETTLEMENT OF DISPUTES; ARBITRATION. ALL CLAIMS BY THE EXECUTIVE
FOR BENEFITS UNDER THIS AGREEMENT SHALL BE DIRECTED TO AND DETERMINED BY THE
BOARD AND SHALL BE IN WRITING. ANY DENIAL BY THE BOARD OF A CLAIM FOR BENEFITS
UNDER THIS AGREEMENT SHALL BE DELIVERED TO THE EXECUTIVE IN WRITING AND SHALL
SET FORTH THE SPECIFIC REASONS FOR THE DENIAL AND THE SPECIFIC PROVISIONS OF
THIS AGREEMENT RELIED UPON. THE BOARD SHALL AFFORD A REASONABLE OPPORTUNITY TO
THE EXECUTIVE FOR A REVIEW OF THE DECISION DENYING A CLAIM AND SHALL FURTHER
ALLOW THE EXECUTIVE TO APPEAL TO THE BOARD A DECISION OF THE BOARD WITHIN SIXTY
(60) DAYS AFTER NOTIFICATION BY THE BOARD
8
THAT THE EXECUTIVE'S CLAIM HAS BEEN DENIED. ANY FURTHER DISPUTE OR CONTROVERSY
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE SETTLED EXCLUSIVELY
BY ARBITRATION IN BOSTON, MASSACHUSETTS, IN ACCORDANCE WITH THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT.
JUDGMENT MAY BE ENTERED ON THE
ARBITRATOR'S AWARD IN ANY COURT HAVING JURISDICTION;