UNIQUE AND BECAUSE THE EXECUTIVE HAS HAD ACCESS TO
CONFIDENTIAL INFORMATION AND WORK PRODUCT, THE PARTIES HERETO AGREE THAT MONEY
DAMAGES WOULD NOT BE AN ADEQUATE REMEDY FOR ANY BREACH OF THIS AGREEMENT.
THEREFORE, IN THE EVENT A BREACH OR THREATENED BREACH OF THIS AGREEMENT, THE
COMPANY OR ITS SUCCESSORS OR ASSIGNS MAY, IN ADDITION TO OTHER RIGHTS AND
REMEDIES EXISTING IN THEIR FAVOR, APPLY TO ANY COURT OF COMPETENT JURISDICTION
FOR SPECIFIC PERFORMANCE, INJUNCTIVE, OTHER RELIEF OF THE FOREGOING IN ORDER TO
ENFORCE, OR PREVENT ANY VIOLATIONS OF, THE PROVISIONS HEREOF (WITHOUT POSTING A
BOND OR OTHER SECURITY).
7.
REDUCTION OF PAYMENTS.
In the event that the severance and other benefits provided to the Executive
under this Agreement or any other agreement or arrangement constitute "parachute
payments" within the meaning of Section 280G of the Code and, but for this
Section 7, such severance and benefits would be subject to the excise tax
imposed by Section 4999 of the Code, then the aggregate severance and benefits
payable to the Executive under this Agreement shall be reduced such that the
present value thereof, together with all other severance and other benefits
under other agreements or arrangements (as determined under the Code and the
applicable regulations) is equal to 2.99 times the Executive's "base amount," as
defined in Section 280G(b)(3) of the Code.
For purposes of applying the
provisions of this Section 7, the Company shall be entitled to rely on the
advice of legal counsel or a nationally recognized accounting firm as to whether
any payments or benefits payable to the Executive constitute "Parachute
Payments" under 280G of the Code.
8.
ARBITRATION.
(A)
ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH, OR TERMINATION THEREOF, SHALL BE SETTLED BY BINDING
ARBITRATION TO BE HELD IN NEW YORK COUNTY, NEW YORK, IN ACCORDANCE WITH THE
NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES THEN IN EFFECT OF THE
AMERICAN ARBITRATION ASSOCIATION (THE "RULES").
THE ARBITRATOR MAY GRANT
INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE, OR CONTROVERSY.
THE DECISION OF
THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE
ARBITRATION.
JUDGMENT MAY BE ENTERED ON THE ARBITRATOR'S DECISION IN ANY COURT
HAVING JURISDICTION.
9
(B)
THE ARBITRATOR(S) SHALL APPLY NEW YORK LAW TO THE MERITS OF ANY
DISPUTE OR CLAIM, WITHOUT REFERENCE TO CONFLICTS OF LAW RULES.
THE ARBITRATION
PROCEEDINGS SHALL BE GOVERNED BY FEDERAL ARBITRATION LAW AND BY THE RULES,
WITHOUT REFERENCE TO STATE ARBITRATION LAW.
THE EXECUTIVE HEREBY CONSENTS TO
THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK
FOR ANY ACTION OR PROCEEDING ARISING FROM OR RELATING TO THIS AGREEMENT OR
RELATING TO ANY ARBITRATION IN WHICH THE PARTIES ARE PARTICIPANTS.
(C)
THE EXECUTIVE HEREBY ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS
THIS SECTION 8, WHICH DISCUSSES ARBITRATION.
THE EXECUTIVE HEREBY ACKNOWLEDGES
THAT HE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR
IN CONNECTION