CAUSE OR BY THE EMPLOYEE AS A RESULT OF A VOLUNTARY RESIGNATION
OR AN INVOLUNTARY TERMINATION SHALL BE COMMUNICATED BY A NOTICE OF TERMINATION
TO THE OTHER PARTY HERETO GIVEN IN ACCORDANCE WITH SECTION 10 (A) OF THIS
AGREEMENT.
SUCH NOTICE SHALL INDICATE THE SPECIFIC TERMINATION PROVISION IN
THIS AGREEMENT RELIED UPON, SHALL SET FORTH IN REASONABLE DETAIL THE FACTS AND
CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR TERMINATION UNDER THE PROVISION SO
INDICATED, AND SHALL SPECIFY THE TERMINATION DATE (WHICH SHALL BE NOT MORE THAN
THIRTY (30) DAYS AFTER THE GIVING OF SUCH NOTICE).
THE FAILURE BY
8
THE EMPLOYEE TO INCLUDE IN THE NOTICE ANY FACT OR CIRCUMSTANCE WHICH CONTRIBUTES
TO A SHOWING OF INVOLUNTARY TERMINATION SHALL NOT WAIVE ANY RIGHT OF THE
EMPLOYEE HEREUNDER OR PRECLUDE THE EMPLOYEE FROM ASSERTING SUCH FACT OR
CIRCUMSTANCE IN ENFORCING HIS RIGHTS HEREUNDER.
11.
MISCELLANEOUS PROVISIONS.
(A)
NO DUTY TO MITIGATE.
THE EMPLOYEE SHALL
NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS
AGREEMENT, NOR SHALL ANY SUCH PAYMENT BE REDUCED BY ANY EARNINGS THAT THE
EMPLOYEE MAY RECEIVE FROM ANY OTHER SOURCE.
(B)
WAIVER.
NO PROVISION OF THIS AGREEMENT
SHALL BE MODIFIED, WAIVED OR DISCHARGED UNLESS THE MODIFICATION, WAIVER OR
DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY THE EMPLOYEE AND BY AN
AUTHORIZED OFFICER OF THE COMPANY (OTHER THAN THE EMPLOYEE).
NO WAIVER BY
EITHER PARTY OF ANY BREACH OF, OR OF COMPLIANCE WITH, ANY CONDITION OR PROVISION
OF THIS AGREEMENT BY THE OTHER PARTY SHALL BE CONSIDERED A WAIVER OF ANY OTHER
CONDITION OR PROVISION OR OF THE SAME CONDITION OR PROVISION AT ANOTHER TIME.
(C)
WHOLE AGREEMENT.
THIS AGREEMENT AND ANY
OUTSTANDING STOCK OPTION AGREEMENTS REPRESENT THE ENTIRE UNDERSTANDING OF THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES IN THEIR
ENTIRETY ALL PRIOR ARRANGEMENTS AND UNDERSTANDINGS REGARDING SAME, INCLUDING THE
CHANGE OF CONTROL SEVERANCE AGREEMENT PREVIOUSLY ENTERED INTO BY AND BETWEEN
EMPLOYEE AND THE COMPANY AND ANY OFFER LETTER, PROMOTION LETTER, EMPLOYMENT
AGREEMENT OR OTHER AGREEMENT REGARDING EMPLOYEE'S EMPLOYMENT TERMS WITH THE
COMPANY.
OTHER THAN THE AGREEMENTS DESCRIBED IN THE PRECEDING SENTENCE, NO
AGREEMENTS, REPRESENTATIONS OR UNDERSTANDINGS (WHETHER ORAL OR WRITTEN AND
WHETHER EXPRESS OR IMPLIED) WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT
HAVE BEEN MADE OR ENTERED INTO BY EITHER PARTY WITH RESPECT TO THE SUBJECT
MATTER HEREOF.
(D)
CHOICE OF LAW.
THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL
BE GOVERNED BY, THE LAWS OF THE STATE OF ARIZONA WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
(E)
SEVERABILITY.
THE INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION OR PROVISIONS OF THIS AGREEMENT SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION HEREOF, WHICH SHALL
REMAIN IN FULL FORCE AND EFFECT.
(F)
WITHHOLDING.
ALL PAYMENTS MADE PURSUANT
TO THIS AGREEMENT WILL BE SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND
EMPLOYMENT TAXES.
(G)
COUNTERPARTS.
THIS AGREEMENT MAY BE