TO
THE SUBJECT MATTER HEREOF AND CONTAIN THE SOLE AND ENTIRE AGREEMENT BETWEEN THE
PARTIES HERETO WITH RESPECT THERETO.
4.3
SURVIVAL.
THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES
THAT REQUIRE PERFORMANCE FOLLOWING EXPIRATION OR TERMINATION OF THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO SECTIONS 4.1, AND 4.4 THROUGH 4.11, SHALL SURVIVE
THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND/OR THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY.
4.4
WAIVER.
ANY TERM OR CONDITION OF THIS AGREEMENT MAY BE WAIVED AT
ANY TIME BY THE PARTY THAT IS ENTITLED TO THE BENEFIT THEREOF, BUT NO SUCH
WAIVER SHALL BE EFFECTIVE UNLESS SET FORTH IN A WRITTEN INSTRUMENT DULY EXECUTED
BY OR ON BEHALF OF THE PARTY WAIVING SUCH TERM OR CONDITION.
NO WAIVER BY ANY
PARTY HERETO OF ANY TERM OR CONDITION OF THIS AGREEMENT, IN ANY ONE OR MORE
INSTANCES, SHALL BE DEEMED TO BE OR CONSTRUED AS A WAIVER OF THE SAME OR ANY
OTHER TERM OR CONDITION OF THIS AGREEMENT ON ANY FUTURE OCCASION.
ALL REMEDIES,
EITHER UNDER THIS AGREEMENT OR BY LAW OR OTHERWISE AFFORDED, WILL BE CUMULATIVE
AND NOT ALTERNATIVE.
4.5
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED, SUPPLEMENTED, OR
MODIFIED ONLY BY A WRITTEN INSTRUMENT DULY EXECUTED BY OR ON BEHALF OF EACH
PARTY HERETO.
4.6
RECOVERY OF ATTORNEY'S FEES.
IN THE EVENT OF ANY LITIGATION
ARISING FROM OR RELATING TO THIS AGREEMENT, THE PREVAILING PARTY IN SUCH
LITIGATION PROCEEDINGS SHALL BE ENTITLED TO RECOVER, FROM THE NON-PREVAILING
PARTY, THE PREVAILING PARTY'S REASONABLE COSTS AND ATTORNEY'S FEES, IN ADDITION
TO ALL OTHER LEGAL OR EQUITABLE REMEDIES TO WHICH IT MAY OTHERWISE BE ENTITLED.
4.7
NO THIRD PARTY BENEFICIARY.
THE TERMS AND PROVISIONS OF THIS
AGREEMENT ARE INTENDED SOLELY FOR THE BENEFIT OF EACH PARTY HERETO AND THE
COMPANY'S SUCCESSORS AND ASSIGNS, AND IT IS NOT THE INTENTION OF THE PARTIES TO
CONFER THIRD-PARTY BENEFICIARY RIGHTS UPON ANY OTHER PERSON.
4.8
NO ASSIGNMENT; BINDING EFFECT.
THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF ANY SUCCESSORS OR ASSIGNS OF THE COMPANY.
EXECUTIVE SHALL NOT BE
ENTITLED TO ASSIGN HER OBLIGATIONS UNDER THIS AGREEMENT.
4.9
HEADINGS.
THE HEADINGS USED IN THIS AGREEMENT HAVE BEEN INSERTED
FOR CONVENIENCE OF REFERENCE ONLY AND DO NOT DEFINE OR LIMIT THE PROVISIONS
HEREOF.
4.10
SEVERABILITY.
THE COMPANY AND EXECUTIVE INTEND ALL PROVISIONS OF
THIS AGREEMENT TO BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW.
ACCORDINGLY, IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT THE SCOPE
AND/OR OPERATION OF ANY PROVISION OF THIS AGREEMENT IS TOO BROAD TO BE ENFORCED
AS WRITTEN, THE COMPANY AND EXECUTIVE INTEND THAT THE COURT SHOULD REFORM SUCH
PROVISION TO SUCH NARROWER SCOPE AND/OR OPERATION AS IT DETERMINES TO BE
ENFORCEABLE.
IF, HOWEVER, ANY PROVISION OF THIS AGREEMENT IS HELD TO BE
ILLEGAL, INVALID, OR UNENFORCEABLE UNDER PRESENT OR FUTURE LAW, AND NOT SUBJECT
TO REFORMATION, THEN (I) SUCH PROVISION SHALL BE FULLY SEVERABLE, (II) THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED AS IF SUCH PROVISION WAS NEVER A PART
OF THIS AGREEMENT, AND (III) THE REMAINING PROVISIONS OF