ANY ALLEGED DISPUTE, BREACH, DEFAULT OR MISREPRESENTATION IN CONNECTION WITH ANY
OF THE PROVISIONS OF THIS AGREEMENT, THE SUCCESSFUL OR PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER, FROM THE OTHER PARTY, REASONABLE ATTORNEYS' FEES AND OTHER
COSTS INCURRED IN THAT SUIT OR PROCEEDING, IN ADDITION TO ANY OTHER RELIEF TO
WHICH SUCH PARTY MAY BE ENTITLED.
THE COURT SHALL DETERMINE WHICH PARTY IS,
UNDER ALL THE CIRCUMSTANCES, THE "SUCCESSFUL OR PREVAILING PARTY," ALL IN
ACCORDANCE WITH THE PRINCIPLES AND PROVISIONS OF CALIFORNIA CIVIL CODE SECTION
1717.
THE COMPANY SHALL PAY PREJUDGMENT INTEREST ON ANY MONEY JUDGMENT OBTAINED
BY YOU AS A RESULT OF SUCH PROCEEDING, CALCULATED AT THE PRIME RATE OF WELLS
FARGO BANK AS IN EFFECT FROM TIME TO TIME FROM THE DATE THAT PAYMENT SHOULD HAVE
BEEN MADE TO YOU UNDER THIS AGREEMENT.
6.
SUCCESSORS; BINDING AGREEMENT.
(A)
SUCCESSOR TO COMPANY TO ASSUME OBLIGATIONS.
THE COMPANY SHALL
REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO EXPRESSLY ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE.
AS USED IN THIS AGREEMENT,
"COMPANY" SHALL MEAN THE COMPANY AS HEREINBEFORE DEFINED AND ANY SUCCESSOR TO
ITS BUSINESS AND/OR ASSETS AS AFORESAID WHICH ASSUMES AND AGREES TO PERFORM THIS
AGREEMENT BY OPERATION OF LAW, OR OTHERWISE.
(B)
EMPLOYEE'S SUCCESSORS.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE ENFORCEABLE BY YOU AND YOUR PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES.
IN THE
EVENT OF YOUR DEATH, ALL AMOUNTS OTHERWISE PAYABLE TO YOU HEREUNDER SHALL,
UNLESS OTHERWISE PROVIDED HEREIN, BE PAID IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT TO YOUR DEVISEE, LEGATEE OR OTHER DESIGNEE OR, IF THERE IS NO SUCH
DESIGNEE, TO YOUR ESTATE.
7.
NOTICE.
NOTICES AND ALL OTHER COMMUNICATIONS PROVIDED FOR IN
THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN
WHEN (A) PERSONALLY DELIVERED OR (B) MAILED BY UNITED STATES CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, ADDRESSED TO THE
RESPECTIVE ADDRESSES SET FORTH ON THE FIRST PAGE OF THIS AGREEMENT; PROVIDED
THAT ALL NOTICE TO THE COMPANY SHALL BE DIRECTED TO THE ATTENTION OF THE BOARD
WITH A COPY TO THE GENERAL COUNSEL OF THE COMPANY (OR, IF THERE IS NO GENERAL
COUNSEL, THEN TO THE COMPANY'S PRIMARY OUTSIDE ATTORNEY AS IDENTIFIED IN THE
COMPANY'S MOST RECENT ANNUAL REPORT), OR TO SUCH OTHER ADDRESS AS EITHER PARTY
MAY HAVE FURNISHED TO THE OTHER IN WRITING IN ACCORDANCE HEREWITH, EXCEPT THAT
NOTICE OF CHANGE OF ADDRESS SHALL BE EFFECTIVE ONLY UPON RECEIPT.
8.
MISCELLANEOUS.
NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED,
WAIVED OR DISCHARGED UNLESS SUCH WAIVER, MODIFICATION OR DISCHARGE IS AGREED TO
IN WRITING AND SIGNED BY YOU AND SUCH OFFICER AS MAY BE DESIGNATED BY THE
BOARD.
NO