SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF EXECUTIVE AND
HIS PERSONAL REPRESENTATIVES AND SHALL INURE TO THE BENEFIT OF AND BE BINDING
UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
18.
ENTIRE AGREEMENT.
THIS AGREEMENT (TOGETHER WITH THE EXHIBITS ATTACHED
HERETO) EMBODIES ALL OF THE REPRESENTATIONS, WARRANTIES, AND AGREEMENTS BETWEEN
THE PARTIES RELATING TO EXECUTIVE'S EMPLOYMENT WITH THE COMPANY.
NO OTHER
REPRESENTATIONS, WARRANTIES, COVENANTS, UNDERSTANDINGS, OR AGREEMENTS EXIST
BETWEEN THE PARTIES RELATING TO EXECUTIVE'S EMPLOYMENT.
THIS AGREEMENT SHALL
SUPERSEDE ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, RELATING TO EXECUTIVE'S
EMPLOYMENT.
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT BY A WRITING
SIGNED BY THE PARTIES.
19.
INJUNCTIVE RELIEF.
WITHOUT LIMITING THE REMEDIES AVAILABLE TO THE
COMPANY, EXECUTIVE ACKNOWLEDGES THAT A BREACH OF ANY OF THE COVENANTS CONTAINED
IN SECTIONS 8, 9 AND 10 MAY RESULT IN MATERIAL IRREPARABLE INJURY TO THE
GOODWILL OF THE COMPANY FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW, THAT IT
WILL NOT BE POSSIBLE TO MEASURE DAMAGES FOR SUCH INJURIES PRECISELY AND THAT, IN
THE EVENT OF SUCH A BREACH OR THREAT THEREOF, THE COMPANY SHALL BE ENTITLED,
WITHOUT THE REQUIREMENT TO POST BOND OR OTHER SECURITY, TO OBTAIN A TEMPORARY
RESTRAINING ORDER AND/OR INJUNCTION RESTRAINING EXECUTIVE FROM ENGAGING IN
ACTIVITIES PROHIBITED BY THIS AGREEMENT OR SUCH OTHER RELIEF AS MAY BE REQUIRED
TO SPECIFICALLY ENFORCE ANY OF THE COVENANTS IN SECTIONS 8, 9 AND 10 OF THIS
AGREEMENT.
20.
CODE SECTION 409A COMPLIANCE.
(A)
THE INTENT OF THE PARTIES IS THAT PAYMENTS AND BENEFITS UNDER THIS
AGREEMENT COMPLY WITH, OR BE EXEMPT FROM, CODE SECTION 409A AND THE REGULATIONS
AND GUIDANCE PROMULGATED THEREUNDER (COLLECTIVELY "CODE SECTION 409A") AND,
ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED, THIS AGREEMENT SHALL BE
INTERPRETED TO BE IN COMPLIANCE THEREWITH.
12
(B)
A TERMINATION OF EMPLOYMENT SHALL NOT BE DEEMED TO HAVE OCCURRED
FOR PURPOSES OF ANY PROVISION OF THIS AGREEMENT PROVIDING FOR THE PAYMENT OF ANY
AMOUNTS OR BENEFITS UPON OR FOLLOWING A TERMINATION OF EMPLOYMENT THAT ARE
CONSIDERED "NONQUALIFIED DEFERRED COMPENSATION" UNDER CODE SECTION 409A UNLESS
SUCH TERMINATION IS ALSO A "SEPARATION FROM SERVICE" WITHIN THE MEANING OF CODE
SECTION 409A AND, FOR PURPOSES OF ANY SUCH PROVISION OF THIS AGREEMENT,
REFERENCES TO A "TERMINATION," "TERMINATION OF EMPLOYMENT" OR LIKE TERMS SHALL
MEAN "SEPARATION FROM SERVICE."
IF THE EXECUTIVE IS DEEMED ON THE DATE OF
TERMINATION TO BE A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF THAT TERM UNDER
CODE SECTION 409A(A)(2)(B), THEN WITH REGARD TO ANY PAYMENT THAT IS CONSIDERED
NON-QUALIFIED DEFERRED COMPENSATION UNDER CODE SECTION 409A PAYABLE ON ACCOUNT
OF A "SEPARATION FROM SERVICE," SUCH PAYMENT OR BENEFIT SHALL BE MADE OR
PROVIDED AT THE DATE WHICH IS THE EARLIER OF (A) THE EXPIRATION OF THE SIX
(6)-MONTH PERIOD MEASURED FROM THE DATE OF SUCH "SEPARATION FROM SERVICE" OF THE
EXECUTIVE, AND (B) THIRTY (30) DAYS FROM THE DATE OF THE EXECUTIVE'S DEATH (THE
"DELAY PERIOD").
UPON THE EXPIRATION OF THE DELAY PERIOD, ALL PAYMENTS AND
BENEFITS DELAYED PURSUANT TO THIS