OR BECOME INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE
REMAINING PRO­VISIONS OF THIS AGREEMENT SHALL NOT BE AFFECTED THEREBY.
E.
ASSIGNMENT.
THIS AGREEMENT, AND ALL OF EXECUTIVE'S RIGHTS AND
DUTIES HEREUNDER, SHALL NOT BE ASSIGNABLE OR DELEGABLE BY EXECUTIVE.
ANY
PURPORTED ASSIGNMENT OR DELEGATION BY EXECUTIVE IN VIOLATION OF THE FOREGOING
SHALL BE NULL AND VOID AB INITIO AND OF NO FORCE AND EFFECT.
THIS AGREEMENT MAY
BE ASSIGNED BY THE COMPANY TO A PERSON OR ENTITY WHICH IS AN AFFILIATE AND SHALL
BE ASSIGNED TO A SUCCESSOR IN INTEREST TO SUBSTANTIALLY ALL OF THE BUSINESS
OPERATIONS OF THE COMPANY WHICH ASSUMES IN WRITING, OR BY OPERATION OF LAW, THE
OBLIGATIONS OF THE COMPANY HEREUNDER.
UPON SUCH ASSIGNMENT, THE RIGHTS AND
OBLIGATIONS OF THE COMPANY HEREUNDER SHALL BECOME THE RIGHTS AND OBLIGATIONS OF
SUCH AFFILIATE OR SUCCESSOR PERSON OR ENTITY; PROVIDED, HOWEVER, THAT, UNLESS
EXECUTIVE CONSENTS TO SUCH ASSIGNMENT (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD), THE COMPANY SHALL REMAIN SECONDARILY LIABLE FOR ANY OBLIGATIONS
HEREUNDER.
FAILURE OF THE COMPANY TO OBTAIN SUCH ASSUMPTION SUBSTANTIALLY
SIMULTANEOUS WITH THE OCCURRENCE OF SUCH SUCCESSION SHALL BE A BREACH OF THE
AGREEMENT AND SHALL ENTITLE EXECUTIVE TO TERMINATE EMPLOYMENT WITH THE COMPANY
FOR GOOD REASON AND EXECUTIVE'S RIGHTS AND OBLIGATIONS SHALL BE DETERMINED IN
ACCORDANCE WITH SECTION 8(C)(III), EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE
FOREGOING, THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE SHALL BE
DEEMED THE DATE OF TERMINATION.
AS USED IN THE AGREEMENT, COMPANY SHALL MEAN
THE COMPANY AS HEREIN BEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR
ASSETS AS AFORESAID WHICH EXECUTES AND DELIVERS THE AGREEMENT PROVIDED FOR IN
THIS SECTION OR WHICH OTHERWISE BECOMES BOUND BY ALL THE TERMS AND PROVISIONS OF
THIS AGREEMENT BY OPERATION OF LAW.
14
F.
NO SET-OFF; NO DUTY TO MITIGATE.
THE COMPANY'S OBLIGATION TO
PAY EXECUTIVE THE AMOUNTS PROVIDED AND TO MAKE THE ARRANGEMENTS PROVIDED
HEREUNDER SHALL NOT BE SUBJECT TO SET-OFF, COUNTERCLAIM OR RECOUPMENT OF AMOUNTS
OWED BY EXECUTIVE TO THE COMPANY OR ITS AFFILIATES.
IN NO EVENT SHALL EXECUTIVE
BE OBLIGATED TO SEEK OTHER EMPLOYMENT OR TAKE ANY OTHER ACTION BY WAY OF
MITIGATION OF THE AMOUNTS PAYABLE TO EXECUTIVE UNDER ANY OF THE PROVISIONS OF
THIS AGREEMENT OR OTHERWISE, NOR SHALL THE AMOUNT OF ANY PAYMENT OR BENEFITS
PROVIDED HEREUNDER BE REDUCED BY ANY COMPENSATION EARNED BY EXECUTIVE AS A
RESULT OF EMPLOYMENT BY ANOTHER EMPLOYER EXCEPT AS PROVIDED IN SECTION
8(C)(III).
G.
SUCCESSORS; BINDING AGREEMENT.
THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF AND BE BINDING UPON PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS,
ADMINISTRA­TORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES.
h.
Code Section 409A.
Notwithstanding anything in this Agreement to the
contrary, if any amount or benefit that would constitute non-exempt "deferred
compensation" for purposes of Section 409A of the Code would otherwise be
payable or distributable under this Agreement by reason of Executive's
separation from service during a period in which he is a Specified Employee (as
defined