THE COMPANY'S OBLIGATIONS HEREUNDER SHALL NOT BE AFFECTED BY ANY
SET-OFF, COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER CLAIM, RIGHT OR ACTION WHICH
THE COMPANY MAY HAVE AGAINST EXECUTIVE OR OTHERS.
IN NO EVENT SHALL EXECUTIVE
BE OBLIGATED TO SEEK OTHER EMPLOYMENT OR TAKE OTHER ACTION BY WAY OF MITIGATION
OF THE AMOUNTS PAYABLE TO EXECUTIVE UNDER ANY OF THE PROVISIONS OF THIS
AGREEMENT AND SUCH AMOUNTS SHALL NOT BE REDUCED WHETHER OR NOT EXECUTIVE OBTAINS
OTHER EMPLOYMENT.
13.
SURVIVAL.
THE RESPECTIVE OBLIGATIONS AND
BENEFITS AFFORDED TO THE COMPANY AND EXECUTIVE AS PROVIDED IN SECTIONS 4 (TO THE
EXTENT THAT PAYMENTS OR BENEFITS ARE OWED AS A RESULT OF A TERMINATION OF
EMPLOYMENT THAT OCCURS DURING THE TERM OF THIS AGREEMENT), 6, 7, 8, 10(C) AND 12
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14.
GOVERNING LAW; VALIDITY.
THE
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF CALIFORNIA WITHOUT REGARD TO THE PRINCIPLE OF CONFLICTS OF LAWS.
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 OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
15.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND
ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
16.
MISCELLANEOUS.
NO PROVISION OF THIS
AGREEMENT MAY BE MODIFIED OR WAIVED UNLESS SUCH MODIFICATION OR WAIVER IS AGREED
TO IN WRITING AND SIGNED BY EXECUTIVE AND BY A DULY AUTHORIZED OFFICER OF THE
COMPANY.
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.
FAILURE BY EXECUTIVE OR
11
THE COMPANY TO INSIST UPON STRICT COMPLIANCE WITH ANY PROVISION OF THIS
AGREEMENT OR TO ASSERT ANY RIGHT EXECUTIVE OR THE COMPANY MAY HAVE HEREUNDER,
INCLUDING WITHOUT LIMITATION, THE RIGHT OF EXECUTIVE TO TERMINATE EMPLOYMENT FOR
GOOD REASON, SHALL NOT BE DEEMED TO BE A WAIVER OF SUCH PROVISION OR RIGHT OR
ANY OTHER PROVISION OR RIGHT OF THIS AGREEMENT.
EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED HEREIN, THE RIGHTS OF, AND BENEFITS PAYABLE TO, EXECUTIVE,
HIS ESTATE OR HIS BENEFICIARIES PURSUANT TO THIS AGREEMENT ARE IN ADDITION TO
ANY RIGHTS OF, OR BENEFITS PAYABLE TO, EXECUTIVE, HIS ESTATE OR HIS
BENEFICIARIES UNDER ANY OTHER EMPLOYEE BENEFIT PLAN OR COMPENSATION PROGRAM OF
THE COMPANY.
17.
Code Section 409A Exempt.
(a)
The compensation and benefits payable under
this Agreement, including without limitation the severance benefits described in
Section 4 of this Agreement, are not intended to constitute "nonqualified
deferred compensation" within the meaning of Section 409A of the Code.
To the
extent applicable, this Agreement shall be interpreted