PARTY MAY GIVE ANY NOTICE, INSTRUCTION OR
OTHER COMMUNICATION HEREUNDER USING ANY OTHER MEANS, BUT NO SUCH NOTICE,
INSTRUCTION OR OTHER COMMUNICATION SHALL BE DEEMED TO HAVE BEEN DULY DELIVERED
UNLESS AND UNTIL IT ACTUALLY IS RECEIVED BY THE PARTY FOR WHOM IT IS INTENDED.
8.
MISCELLANEOUS.
8.1
EMPLOYMENT BY SUBSIDIARY.
FOR PURPOSES OF THIS AGREEMENT, THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY SHALL NOT BE DEEMED TO HAVE TERMINATED
SOLELY AS A RESULT OF THE EXECUTIVE CONTINUING TO BE EMPLOYED BY A WHOLLY-OWNED
SUBSIDIARY OF THE COMPANY.
8.2
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF 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.
8.3
INJUNCTIVE RELIEF.
THE COMPANY AND THE EXECUTIVE AGREE THAT ANY
BREACH OF THIS AGREEMENT BY THE COMPANY IS LIKELY TO CAUSE THE EXECUTIVE
SUBSTANTIAL AND IRREVOCABLE DAMAGE AND THEREFORE, IN THE EVENT OF ANY SUCH
BREACH, IN ADDITION TO SUCH OTHER REMEDIES WHICH MAY BE AVAILABLE, THE EXECUTIVE
SHALL HAVE THE RIGHT TO SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF.
8.4
GOVERNING LAW.
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
8.5
WAIVERS.
NO WAIVER BY THE EXECUTIVE AT ANY TIME OF ANY BREACH OF,
OR COMPLIANCE WITH, ANY PROVISION OF THIS AGREEMENT TO BE PERFORMED BY THE
COMPANY SHALL BE DEEMED A WAIVER OF THAT OR ANY OTHER PROVISION AT ANY
SUBSEQUENT TIME.
8.6
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS,
EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL BUT BOTH OF WHICH TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
8.7
TAX WITHHOLDING.
ANY PAYMENTS PROVIDED FOR HEREUNDER SHALL BE
PAID NET OF ANY APPLICABLE TAX WITHHOLDING REQUIRED UNDER FEDERAL, STATE OR
LOCAL LAW.
8.8
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT
OF THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN AND
SUPERSEDES ALL PRIOR AGREEMENTS, PROMISES, COVENANTS, ARRANGEMENTS,
COMMUNICATIONS, REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR WRITTEN, BY ANY
OFFICER, EMPLOYEE OR REPRESENTATIVE OF ANY PARTY HERETO IN RESPECT OF THE
SUBJECT MATTER CONTAINED HEREIN; AND ANY PRIOR AGREEMENT OF THE PARTIES HERETO
IN RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN IS HEREBY TERMINATED AND
CANCELLED.
8.9
SECTION 409A.
NO PAYMENTS THAT MAY BE MADE PURSUANT TO THIS
AGREEMENT THAT CONSTITUTE "NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE
MEANING OF SECTION 409A OF THE INTERNAL REVENUE CODE AND THE GUIDANCE ISSUED
THEREUNDER ("SECTION 409A") MAY BE ACCELERATED OR DEFERRED BY THE COMPANY OR THE
EXECUTIVE.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, TO
THE EXTENT THAT ANY OF THE PAYMENTS TO BE MADE HEREUNDER CONSTITUTE
"NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF SECTION 409A AND THE
EXECUTIVE IS A "SPECIFIED EMPLOYEE," THEN UPON [HIS /HER] TERMINATION (AS
DEFINED UNDER SECTION 409A), ANY SUCH PAYMENT SHALL BE DELAYED UNTIL THE DATE
THAT IS SIX MONTHS AND ONE DAY FOLLOWING THE