FOR SUCH BREACH, INCLUDING THE
RECOVERY OF MONEY DAMAGES. IF ANY OF THE PROVISIONS OF SECTION 2 ARE DETERMINED
TO BE WHOLLY OR PARTIALLY UNENFORCEABLE, THE EXECUTIVE HEREBY AGREES THAT THIS
AGREEMENT OR ANY PROVISION HEREOF MAY BE REFORMED SO THAT IT IS ENFORCEABLE TO
THE MAXIMUM EXTENT PERMITTED BY LAW; AND IN THE CASE WHEN SUCH PROVISION IS NOT
CAPABLE OF BEING REFORMED, IT SHALL BE SEVERED AND ALL REMAINING PROVISIONS OF
THIS AGREEMENT SHALL BE ENFORCED. IF ANY OF THE PROVISIONS OF THIS SECTION 2 ARE
DETERMINED TO BE WHOLLY OR PARTIALLY UNENFORCEABLE IN ANY JURISDICTION, SUCH
DETERMINATION SHALL NOT BE A BAR TO OR IN ANY WAY DIMINISH THE COMPANY'S RIGHT
TO ENFORCE ANY SUCH COVENANT IN ANY OTHER JURISDICTION.
3.
SUCCESSORS.
(A)
THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE AND WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY SHALL NOT BE ASSIGNABLE BY THE EXECUTIVE
OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS AGREEMENT SHALL
INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S LEGAL
REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING
UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. FOR PURPOSES HEREOF, THE TERM
"AFFILIATE" SHALL MEAN ANY ENTITY CONTROLLED BY, CONTROLLING OR UNDER COMMON
CONTROL WITH THE COMPANY.
4
(B)
NO RIGHTS OR OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT
MAY BE ASSIGNED OR TRANSFERRED BY THE COMPANY EXCEPT THAT SUCH RIGHTS OR
OBLIGATIONS MAY BE ASSIGNED OR TRANSFERRED PURSUANT TO A MERGER OR CONSOLIDATION
IN WHICH THE COMPANY IS NOT THE CONTINUING ENTITY, OR THE SALE OR LIQUIDATION OF
ALL OR SUBSTANTIALLY ALL OR A SUBSTANTIAL PORTION OF THE ASSETS OF THE COMPANY.
THE COMPANY SHALL CAUSE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE,
MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF ITS BUSINESS
AND/OR ASSETS TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT. AS USED
IN THIS AGREEMENT, "COMPANY" SHALL MEAN THE COMPANY AS HEREINBEFORE DEFINED AND
ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS AFORESAID WHICH ASSUMES AND
AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW, OR OTHERWISE.
4.
SECTION 409A OF THE CODE.
(A)
GENERAL.
THIS AGREEMENT IS INTENDED TO COMPLY WITH THE
REQUIREMENTS OF SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
OR AN EXEMPTION OR EXCLUSION THEREFROM AND, WITH RESPECT TO AMOUNTS THAT ARE
SUBJECT TO SECTION 409A OF THE CODE, SHALL IN ALL RESPECTS BE ADMINISTERED IN
ACCORDANCE WITH SECTION 409A OF THE CODE.
EACH PAYMENT UNDER THIS AGREEMENT
SHALL BE TREATED AS A SEPARATE PAYMENT FOR PURPOSES OF SECTION 409A OF THE
CODE.
IN NO EVENT MAY THE EXECUTIVE, DIRECTLY OR INDIRECTLY, DESIGNATE THE
CALENDAR YEAR OF ANY PAYMENT TO BE MADE UNDER THIS AGREEMENT. ALL PAYMENTS TO BE
MADE UPON A TERMINATION OF EMPLOYMENT UNDER THIS AGREEMENT MAY ONLY BE MADE UPON
A "SEPARATION FROM SERVICE" WITHIN THE MEANING OF SECTION 409A OF THE CODE.
(B)
DELAY OF PAYMENTS.
NOTWITHSTANDING THE PROVISIONS OF SECTION
1(A),