OF ANY ENTITY OR
PERSON WHICH WOULD IN ANY WAY PRECLUDE, INHIBIT, IMPAIR OR LIMIT THE EXECUTIVE'S
ABILITY TO PERFORM HIS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, NON-COMPETITION AGREEMENTS, NON-SOLICITATION AGREEMENTS OR
CONFIDENTIALITY AGREEMENTS.
10.4
WAIVER AND AMENDMENTS.
THIS AGREEMENT MAY BE AMENDED, MODIFIED,
SUPERSEDED, CANCELED, RENEWED OR EXTENDED, AND THE TERMS AND CONDITIONS HEREOF
MAY BE WAIVED, ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE PARTIES OR, IN THE
CASE OF A WAIVER, BY THE PARTY WAIVING COMPLIANCE.
NO DELAY ON THE PART OF ANY
PARTY IN EXERCISING ANY RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A
WAIVER THEREOF, NOR SHALL ANY WAIVER ON THE PART OF ANY RIGHT, POWER OR
PRIVILEGE HEREUNDER, NOR ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR
8
PRIVILEGE HEREUNDER, PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE
EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE HEREUNDER.
10.5
GOVERNING LAW, DISPUTE RESOLUTION AND VENUE.
(A)
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND NOT TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
(B)
THE PARTIES AGREE IRREVOCABLY TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL COURTS OR, IF NO FEDERAL JURISDICTION EXISTS, THE
STATE COURTS, LOCATED IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING
OUT OF ANY BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT AND HEREBY WAIVE,
AND AGREE NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH
SUIT, ACTION, OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER, OR THAT THE PROVISIONS OF THIS AGREEMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS.
IN ADDITION, THE PARTIES AGREE TO THE WAIVER OF
A JURY TRIAL.
10.6
ASSIGNABILITY BY THE COMPANY AND THE EXECUTIVE.
THIS AGREEMENT,
AND THE RIGHTS AND OBLIGATIONS HEREUNDER, MAY NOT BE ASSIGNED BY THE COMPANY OR
THE EXECUTIVE WITHOUT WRITTEN CONSENT SIGNED BY THE OTHER PARTY; PROVIDED, THAT
THE COMPANY MAY ASSIGN THIS AGREEMENT TO ANY SUCCESSOR THAT CONTINUES THE
BUSINESS OF THE COMPANY.
10.7
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
ORIGINAL, FACSIMILE OR ELECTRONIC COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL BUT ALL OF WHICH SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
10.8
HEADINGS.
THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING OF TERMS
CONTAINED HEREIN.
10.9
SEVERABILITY.
IF ANY TERM, PROVISION, COVENANT OR RESTRICTION OF
THIS AGREEMENT, OR ANY PART THEREOF, IS HELD BY A COURT OF COMPETENT
JURISDICTION OF ANY FOREIGN, FEDERAL, STATE, COUNTY OR LOCAL GOVERNMENT OR ANY
OTHER GOVERNMENTAL, REGULATORY OR